UNDT/2021/020, Papas
The Tribunal finds that the recovery of CHF2,838 constituting financial loss occasioned to the Respondent through the Applicant’s private phone calls is not a relevant consideration to the determination of the proportionality of the sanction. This is because the recovery is not a disciplinary measure within the meaning of staff rule 10.2(b)(ii) which expressly clarifies that recovery of monies owed to the Organisation is a not a disciplinary measure. The Applicant has failed to show that he deserves a more lenient sanction than the one imposed. His impecuniosity, resulting from the sanction is self-imposed as argued by the Respondent, hence an irrelevant factor. The fine is an appropriate sanction with the desired effects of punishing and deterring the Applicant from future reckless conduct. The Applicant has not shown that it is unlawful, absurd, excessive, arbitrary or unreasonable under the circumstances.
The Applicant is contesting the UNHCR High Commissioner’s decision to impose on him the disciplinary measure of a fine of two months’ net base salary pursuant to staff rule 10.2(a)(v) and the placement of the disciplinary measure in his official status file.
The Administration has broad discretion in determining the disciplinary measure imposed on staff members as a consequence of wrongdoing. It is best suited to select an adequate sanction within the limits stated by the respective norms, sufficient to prevent repetitive wrongdoing, punish the wrongdoer, satisfy victims and restore the administrative balance. When faced with an application to review the Secretary-General’s exercise of discretion in matters of sanctioning staff members for proven acts of misconduct, the test of proportionality requires a comparison between the misconduct and the sanction. In its determination, this Tribunal should observe a measure of deference, but more importantly, it must not be swayed by irrelevant factors or ignore relevant considerations. Some of the relevant factors to be taken into account in assessing the proportionality of a sanction include the seriousness of the misconduct, the length of service, the disciplinary record of the employee, the attitude of the employee and his past conduct, the context of the violation and employer consistency in dealing with comparable cases. Having proved that the Respondent took all relevant factors into account in coming up with the sanction, the burden shifts to the Applicant to prove that in the exercise of his discretion to impose a sanction the Respondent violated the proportionality principle. The Respondent is obliged under art. 101(3) of the United Nations Charter to secure and hold staff members to the highest standards of efficiency, competence and integrity, as expected of international civil servants.
The Tribunal finds that the fine is an appropriate sanction with the desired effects of punishing and deterring the Applicant from future reckless conduct. The Applicant has not shown that it is unlawful, absurd, excessive, arbitrary or unreasonable under the circumstances.