UNDT/2020/036, Kozul-Wright
Regardless of his appeal of the decision to waive his diplomatic immunity, the Applicant’s failure to honour his private legal obligations under Swiss law violated staff rule 1.2(b) and ST/AI/2010/12 and thus the established facts amount to misconduct. The Tribunal finds that the disciplinary measure imposed in this case was proportionate to the established misconduct. The Tribunal finds that the Applicant’s due process rights were respected.
The Applicant contests the Administration’s decision on 31 October 2017 to impose the disciplinary measure of a written censure and a loss of four steps in grade for failure to honour his private legal obligations.
The general standard of judicial review in disciplinary cases requires the Dispute Tribunal to ascertain: (a) whether the facts on which the disciplinary measure was based have been established (b) whether the established facts legally amount to misconduct and (c) whether the disciplinary measure applied was proportionate to the offence (see, for example, Abu Hamda 2010-UNAT-022, Haniya 2010-UNAT-024, Portillo Moya 2015-UNAT-523, Wishah 2015-UNAT-537). Staff rule 1.2(b) provides that “Staff members must comply with local laws and honour their private legal obligations, including, but not limited to, the obligation to honour orders of competent courts”. Section 2 of ST/AI/2010/12 reiterates staff rule 1.2(b) and provides that “the privileges and immunities of the United Nations are conferred in the interests of the Organization and furnish no excuse to staff members who are covered by them for the non-performance of their private legal obligations” (see sec 2.2). Section 5.4 further provides that if a staff member does not take action to comply with private legal obligations within three months after receipt of the Organization’s request to take prompt action to resolve such matter under sec. 5.3, disciplinary action may be initiated. The Tribunal recalls that a staff member’s obligation to honour his or her private legal obligations, including the obligation to honour orders of competent courts, under staff rule 1.2(b) and ST/AI/2010/12, is not dependent on whether or not a staff member has diplomatic immunity and such immunity has been waived by the Organization. To the contrary, sec. 2.2 of ST/AI/2010/12 provides that “the privileges and immunities of the United Nations are conferred in the interests of the Organization and furnish no excuse to staff members who are covered by them for the non-performance of their private legal obligations”. The principle of proportionality in a disciplinary matter is set forth in staff rule 10.3(b), which provides that “[a]ny disciplinary measure imposed on a staff member shall be proportionate to the nature and gravity of his or her misconduct”. The Administration has discretion to impose the disciplinary measure that it considers adequate to the circumstances of a case and to the actions and behavior of the staff member involved, and the Tribunal should not interfere with administrative discretion unless “the sanction imposed appears to be blatantly illegal, arbitrary, adopted beyond the limits stated by the respective norms, excessive, abusive, discriminatory or absurd in its severity” (Portillo Moya 2015-UNAT-523, paras. 19-21). The Secretary-General has the discretion to weigh aggravating and mitigating circumstances when deciding upon the appropriate sanction to impose (Toukolon 2014-UNAT-407, para. 31).