UNDT/2021/051, Bamba
The established facts qualified as misconduct under the Staff Regulations and Rules. There was evidence that the totality of the circumstances, including mitigating factors such as the Applicantās long service with the Organization and her admission, albeit only after the Organizationās discovery of her fraud, were considered in keeping with set principles. There was basis for the assertion that the practice of the Secretary-General in disciplinary matters shows that measures at the stricter end of the spectrum have normally been imposed by the Organization in cases involving falsification of documentation to obtain entitlements, absent compelling mitigating circumstances. The sanction was proportionate to the offence and lawful thus there was no basis for interfering with the decision makerās discretion. The alleged translation mistakes and discrepancies between her OIOS interview and the transcript thereafter produced didnāt have a material impact on the established facts that the Applicant knowingly and wilfully misrepresented her pregnancy in order to fraudulently obtain a medical certificate attesting to her pregnancy and subsequently used that certificate to claim a benefit to which she was not entitled. The alleged translation mistakes didnāt have a material impact on either her due process rights or on the established facts relevant to the proportionality of the sanction imposed. The Tribunal found that that there was clear and convincing evidence that the Applicant committed the misconduct complained of, and that the established facts qualified as misconduct under the Staff Regulations and Rules, further that the sanction was proportionate to the offence and was therefore lawful. The Tribunal also found that there were no due process violations in the investigation and in the disciplinary process leading up to the disciplinary sanction against the Applicant.
The Applicant challenged the Respondentās decision to dismiss her from service.
The Tribunalās role in disciplinary cases is to examine: a. whether the facts on which the sanction is based have been established; b. whether the established facts qualify as misconduct under the Staff Regulations and Rules; and c. whether the sanction is proportionate to the offence. Part of the test in reviewing decisions imposing sanctions is whether due process rights were observed. The Administration bears the burden of establishing that the alleged misconduct for which a disciplinary measure has been taken against a staff member occurred. When termination is a possible outcome, the Administration must prove the facts underlying the alleged misconduct by āclear and convincing evidenceā, which requires more than a preponderance of evidence but less than proof beyond reasonable doubt, and āmeans that the truth of the facts asserted is highly probableā. The proportionality principle limits discretion by requiring an administrative action not to be more excessive than is necessary for obtaining the desired result. The purpose of proportionality is to avoid an imbalance between the adverse and beneficial effects of an administrative decision and to encourage the administrator to consider both the need for the action and the possible use of less drastic or oppressive means to accomplish the desired end. The essential elements of proportionality are balance, necessity and suitability. The Secretary-General has wide discretion in determining the appropriate disciplinary measure, due deference should be shown to the Secretary-Generalās disciplinary decisions, it is not the role of the Tribunal to consider the correctness of the choice made by the Secretary-General amongst the various courses of action open to him, and that the Tribunal is more concerned with how the decision-maker reached the impugned decision, not the merits of the decision.