����AV

Have the facts on which the disciplinary measure was based been established? Regardless of the standard of proof applied, the facts of the case as recounted are undisputed. They were first established during the investigation process and confirmed during the hearing by the Applicant and the testimony of two eyewitnesses. Furthermore, the Tribunal heard testimony from the investigator and the security officer who recorded the complainant’s report. The Tribunal did not find any evidence of ill-motivation on the part of the witnesses, and was satisfied that the facts related to the allegations against the Applicant were established. Do the established facts amount to misconduct? The Applicant’s established behaviour, especially the threat to break the complainant’s phone, amounts to misconduct since it goes against the core values and obligations of staff members enshrined in the Staff Regulations. Applicant’s due process rights during the investigation and disciplinary process Regarding the Applicant’s argument that the witnesses did not take an oath the Tribunal recalled that those same witnesses took their oath at a later stage when the SRSG remanded the case back to the Investigation’s unit for that specific purpose. Other than making the allegations, the Tribunal noted that the Applicant did not provide substantial evidence that his due process rights were violated during the investigation and or disciplinary process. Having considered all the documents and evidence produced in this case, the Tribunal concludes that throughout the investigation and disciplinary process, there is no evidence of bias or any procedural irregularity and that, as a consequence, the Applicant’s due process rights were not violated. Proportionality of the disciplinary measure applied Proportionality has to be understood as a limit to the discretionary power of the decisionmaker in the name of fairness and equity. This implies that the decision-maker has to consider all aggravating and mitigating circumstances of a case. The Applicant’s threat was exclusively addressed against an object—the complainant’s mobile phone—and not aimed at the physical integrity of the complainant. Also, while the threat to break the complainant’s mobile phone amounts to verbal abuse and constitutes misconduct as explained above, it remained a verbal threat; the Applicant did not even touch the complainant’s phone and did in no way attempt to damage it. In this connection, the Tribunal notes that the sanction letter casts doubt on whether the decision-maker properly determined the appropriate sanction. Indeed, the sanction letter states that the USG, DM “considered the past practice of the Organization in cases in which staff members [had] engaged in verbal abuse and/or made threats against staff members or other individuals”. In light of the above, the Tribunal was of the view that in this case, the imposition of two concurrent sanctions, namely a written censure and the loss of two steps in grade, appeared excessive in light of the established misconduct of a verbal threat against the integrity of an object, which did not materialize. Moreover, the Tribunal was concerned that the sanctions appeared even more excessive in light of the circumstances and events preceding the gymnasium incident. The Tribunal found that there existed reasonable and adequate grounds that should have been considered as mitigating factors in the Applicant’s case, and that the cumulative imposition of a written censure and the loss of two steps in grade on him was excessive, unreasonable and disproportionate to the misconduct.