UNDT/2021/026, Okwir
The ASG/OIOS was appointed as OiC by the previous USG/OIOS pending the appointment of a new head of entity. The mere fact that the new USG/OIOS began her term does not make subdelegations by the predecessor invalid and there is no allegation or evidence that subdelegations to the ASG/OIOS as OiC/OIOS were withdrawn or modified by the new USG/OIOS. Rather, in the contested decision, the ASG/OIOS used his title as OiC/OIOS. Therefore, the Tribunal finds that the contested decision was made by the authorized responsible official. While the OiC/OIOS’s decision does not refer to the specific subsections in sec. 5.5 of ST/AI/2017/1, it is clear that he considered that the reported conducts were not “a matter that could amount to misconduct†even if true. Contrary to the Applicant’s argument, sec. 5.5 does not require the responsible official to consider all the factors set forth in that section but states that these factors may be considered in undertaking the preliminary assessment. Therefore, the contested decision complied with the procedural requirements. Having reviewed the details of the allegations raised by the Applicant and the reasoning of the contested decision, the Tribunal finds that the OiC/OIOS reasonably concluded that the allegations did not amount to prohibited conduct even if true. It is clear that there were tensions between the Applicant and the Chief, HAS, IAD/OIOS, with regard to the monitoring of attendance and work performance, but they were reasonably considered as work performance or other work-related issues. Furthermore, while the Applicant was unsatisfied with the Director of IAD/OIOS’s actions in handling his complaint, the Tribunal finds that the OiC/OIOS reasonably concluded that the Director’s actions toward the Applicant did not amount to prohibited conduct.
The Administration’s decision not to initiate a fact-finding investigation into his complaint.
The Administration’s response to a request for management evaluation is not a reviewable administrative decision. It is the responsible official’s duty to assess whether there is a ‘reasonable chance’ that the alleged facts described in the complaint—if indeed they occurred—would amount to prohibited conduct. Only in a case of “serious and reasonable accusation, does a staff member have a right to an investigation against another staff member which may be subject to judicial reviewâ€, and “a fact-finding investigation may only be undertaken if there are ‘sufficient grounds’ or, respectively, ‘reason[s] to believe that a staff member has engaged in unsatisfactory conduct for which a disciplinary measure may be imposedâ€. The Organization has a degree of discretion on how to conduct a review and assessment of a complaint of prohibited conduct. The judicial review of an administrative decision involves a determination of the validity of the contested decision on grounds of legality, reasonableness and procedural fairness.