UNDT/2021/036

UNDT/2021/036, Belsito

UNAT Held or UNDT Pronouncements

The Tribunal finds that the Respondent has complied with every aspect of the regulatory framework. Specifically, regarding the complaint that the Applicant was not provided with details of the allegations that led to the investigation, there is no requirement for such disclosure when informing a staff member that they will be placed on leave with pay at the initial stage of an investigation. This differs from the circumstances where the decision being made is placement on leave without pay. There is no indication that the Respondent acted other than in full compliance with the regulatory framework and in good faith in decisions made to place the Applicant on ALWFP for the commencement of the investigation into his conduct. The Applicant has failed to discharge his burden of proof in rebutting the presumption of regularity in the Respondent’s decision per se to place him on ALWFP. The Applicant has described several actions by the Respondent which he contends cumulatively amount to “intentional marginalization and retaliation”. He contends that based on these actions he was constructively dismissed and as such his resignation was not voluntary. However, on an examination of these actions it is clear that none of them either individually or taken together could lead a reasonable person to the view that the employer was “marching [him] to the door.” The Applicant’s resignation was a voluntary but hasty and reactionary decision. This was not a constructive dismissal. In any event, the Applicant had removed himself from the Organization and as such the remedy of discontinuing the administrative leave could not be practically implemented. His resignation has rendered the appeal moot.

Decision Contested or Judgment/Order Appealed

The Applicant challenges the Respondent’s decision to place him on administrative leave with full pay; and argues that the Respondent’s actions tantamount to constructive dismissal.

Legal Principle(s)

The presumption of regularity has been recognised in UNAT’s jurisprudence as applicable to the Respondent’s decision making. As a result, the Respondent has a minimal burden of proof to justify a contested administrative action or decision. Once that minimal burden is discharged, the burden remains with the staff member to prove that the actions of the Respondent were unlawful or unjust. This must be done by clear and convincing evidence (Rolland 2011-UNAT-122). In a case of alleged constructive termination, the actions of the employer must be such that a reasonable person would believe that the employer was ‘marching them to the door’”. In such circumstances, although there has been no actual dismissal, the treatment is sufficiently bad to the extent that it usually creates a hostile working environment such that the resignation of the employee is not considered to be voluntary; it is in effect a termination and the employee is entitled to regard himself as having been dismissed (Kalil 2015-UNAT-580).

Outcome

Dismissed on merits

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