UNDT/2022/041, Bwalya
The Tribunal found that, as Country Director, in instructing the most junior staff member within the chain of command in the procurement process, to forge a document and by acting on that document through his endorsement and approval of the Formal Request which was misrepresented, the Applicant breached the Organization's cited rules and regulations. Additionally he violated paragraph 24(e) of the UNDP Legal Framework, Section 3 of the UNDP Policy on Fraud and other Corrupt Practices applicable at the time (UNDP Anti-Fraud Policy) and UNDP’s Guidelines and Procedures on National Implementation by the Government of UNDP Supported Projects issued on 1 July 2011. The Applicant’s due process rights were respected because he understood the charges against him, he had ample opportunity to seek clarification, he responded to the charges and gave his comments after what the record shows to be thorough consultations with his duly designated Counsel. The Respondent took relevant considerations and arrived at a proportionate sanction. The Tribunal was not convinced that the sanction should be interfered with.
The Applicant contested the disciplinary measure imposed on him of separation from service with compensation in lieu of notice and without termination indemnity.
In disciplinary cases, the Tribunal is called upon to examine the following: (i) whether the facts on which the disciplinary measure is based have been established (ii) whether the established facts amount to misconduct; (iii) whether the staff member’s due process rights were respected and (iv) whether the sanction is proportionate to the offence. The Administration bears the burden of establishing that the alleged misconduct for which a disciplinary measure has been taken against a staff member occurred. Where termination is the possible outcome, the standard of proof is one on clear and convincing evidence meaning that the probability that the misconduct occurred is very high.
The Respondent having proved its case through clear and convincing evidence that the Applicant breached his terms and conditions of appointment, the application was dismissed in its entirety.