����AV

In Rolli 2019-UNAT-952, the Appeals Tribunal directed the JAB of WMO to “make findings” on a number “issues and questions” (see para. 34). The Appeals Tribunal thereby intended to ensure that the case is given the adequate attention and scrutiny that must be expected by an independent and impartial judicial mechanism. These directions were, however, not addressed to the Dispute Tribunal, which per definition constitutes such a mechanism. Consequently, as the primary fact-finder according to the Appeals Tribunal’s consistent jurisprudence (see, for instance, Gehr 2012-UNAT-234, Turkey 2019-UNAT-955 and Robinson 2020-UNAT-1040), the Tribunal found that it is not bound by these directions, but would, as appropriate, let itself be guided by them. The Appeals Tribunal has generally held that the Administration enjoys a “broad discretion in disciplinary matters; a discretion with which [the Appeals Tribunal] will not lightly interfere” (see Ladu 2019-UNAT-956, para. 40). This discretion, however, is not unfettered. As the Appeals Tribunal stated in its seminal judgment in Sanwidi 2010-UNAT-084, at para. 40, “when judging the validity of the exercise of discretionary authority … the Dispute Tribunal determines if the decision is legal, rational, procedurally correct, and proportionate”. This means that the Tribunal “can consider whether relevant matters have been ignored and irrelevant matters considered, and also examine whether the decision is absurd or perverse”. The Appeals Tribunal, however, underlined that “it is not the role of the Dispute Tribunal to consider the correctness of the choice made by the Secretary-General amongst the various courses of action open to him” or otherwise “substitute its own decision for that of the Secretary-General” (see Sanwidi, para. 40). In this regard, “the Dispute Tribunal is not conducting a ‘merit-based review, but a judicial review’” explaining that a “[j]udicial review is more concerned with examining how the decision-maker reached the impugned decision and not the merits of the decision-maker’s decision” (see Sanwidi, para. 42). Among the circumstances to consider when assessing the Administration’s exercise of its discretion, the Appeals Tribunal stated “[t]here can be no exhaustive list of the applicable legal principles in administrative law, but unfairness, unreasonableness, illegality, irrationality, procedural irregularity, bias, capriciousness, arbitrariness and lack of proportionality are some of the grounds on which tribunals may for good reason interfere with the exercise of administrative discretion” (see Sanwidi, para. 38). tThe Appeals Tribunal has held that certain minimum standards inherently apply to a disciplinary process even if not explicitly stated in the relevant legal framework. In Abu Osba 2020-UNAT-1061, the Appeals Tribunal, for instance, held that “[a]lthough the [United Nations Relief and Works Agency for Palestine Refugees] Staff Rule does not specifically outline the requirements for due process in disciplinary cases, the common law requirements of due process in such instances should apply” (para. 68). Certain minimum standards and principles for due process with relevance to the present case have already been affirmed by the Appeals Tribunal: (a) Prior to taking any administrative decision imposing a disciplinary sanction, the subject shall be given “adequate notice of the allegations” (see Abu Osba, para. 68, as well as, for instance, Leal 2013-UNAT-337, para. 24; Rangel 2015-UNAT-535, paras. 72 and 75; Muindi 2017-UNAT-782, paras. 52-53; Elobaid 2018-UNAT-822, para. 28; Sall 2018-UNAT-889, para. 36); (b) Also, the subject shall have “the opportunity to respond to those allegations” before then (see Abu Osba, para. 68 as read together with Elobaid 2018-UNAT-822, para. 28, as well as, for instance, Leal 2013-UNAT-337; para. 24; Sall 2018-UNAT-889, para. 36); (c) The subject shall further have “the right to seek legal advice if requested” during the disciplinary process (see Abu Osba, para. 68); (d) “[A]ccess to justice is a norm of customary international law” (see Mindua 2019-UNAT-921, para. 27). A derivative right is that if an administrative and/or disciplinary sanction is imposed against a staff member, then s/he must be specifically informed of the correct legal basis therefor in the contested administrative decision. In line herewith, the subject must be fully apprised of the allegation(s) and facts underpinning each of the disciplinary sanction(s). Without such information, the subject will not be able to adequately ascertain the legal and factual background for the imposed disciplinary and/or administrative sanction(s) and appropriately defend her/his position within the internal justice system (similarly, see Muindi 2017-UNAT782, para. 54). Such error(s) may cause unnecessary uncertainty and delays. An audit and an investigation cannot be regarded as the same type of review, because they have different objectives and are conducted by different categories of professionals (auditors vis-à-vis investigators). The Appeals Tribunal has, at several instances, affirmed the so-called “no difference” principle. It therefrom follows that only procedural irregularities that impacted the contested administrative decision can render it unlawful (see, for instance, Kallon 2017-UNAT-742, Allen 2019-UNAT-951, Ladu 2019-UNAT-956 and Thiombiano 2020-UNAT-978).