UNDT/2017/057, Daniel
After being presented with the allegations of misconduct on 9 July 2014, the Applicant responded on 21 August 2014. The decision to impose a disciplinary sanction on the Applicant was communicated to him on 4 December 2014. Thus, a review of the entire case against the Applicant and communicating to him of the outcome took a little over three months. This time frame was not unreasonable and did not constitute a breach of due process. On the facts before the Tribunal, the Applicant did not adduce any evidence to give the Tribunal a basis for reviewing the Secretary-General’s exercise of discretion in this case, nor did he show that the Secretary-General’s discretion was improperly exercised.
The Applicant challenged the Respondent’s decision to impose the. disciplinary measure of separation from service, with compensation in lieu of notice and without termination indemnity.
The Respondent must establish through clear and convincing evidence that the Applicant was part of the scheme to steal and sell the tyres belonging to UNMIL. This standard of proof is required for any disciplinary sanction of the Applicant to properly follow. The observance of due process is simply the requirement that the Respondent respect all the legal rights owed the applicant through the investigation and disciplinary process. A staff member who has been placed on administrative leave pending investigations has a right to a fair and speedy investigation. When a staff member has been presented with charges of misconduct and he sends his response, it is important for the Respondent to review the staff member’s case quickly to minimize the anxiety of waiting for a decision on the case. While the Secretary-General has wide discretion in applying sanctions for misconduct, he “must adhere to the principle of proportionality.†In reviewing the exercise of his discretion, the court has been urged to show “due deference†to the Secretary-General’s obligation to “hold staff members to the highest standards of integrity.†Generally, courts do not interfere with the “exercise of a discretionary authority unless there is evidence of illegality, irrationality and procedural impropriety.