UNDT/2023/141, Silva Roig
Under the definition of fraud, the Tribunal observed that the question of the Applicant’s own benefit is not a required element to establish a finding of fraud. Rather, if found that by a misrepresentation, she intentionally deceived the 2017 and 2018 Staff Days and this actually or potentially caused prejudice to the 2017 and 2018 Staff Days, this is adequate.
The Tribunal found that, in the given circumstances, the Administration acted within the scope of its authority when finding that the Applicant had committed fraud. Accordingly, as per Asghar: (a) the Applicant misrepresented the amount of the donation of the Member State to the Staff Day Committee for Staff Day 2018, (b) she intentionally deceived its Sports Programme regarding the full amount of the donation, and (c) this caused prejudice to this Sports Programme in that it never received all the relevant money. Considering the seriousness of the offence of fraud pursuant to Asghar, the Tribunal further finds that the Administration acted within its scope of authority when finding that the Applicant’s fraudulent actions amounted to misconduct.
The Tribunal found that, in the present case, it is not clear why the Administration decided to impose two sanctions against the Applicant, where the latter was subsumed by the first. In any event, the Tribunal notes that the relevant legal framework does not preclude the Administration from imposing more than one disciplinary sanction against a staff member culpable of misconduct, also if one sanction is subsumed by the other.
The Tribunal found that it was reasonable for the Administration to entirely lose its trust in the Applicant. Handling donor money from Member States or other entities is a very important responsibility that requires staff members, who are entrusted with this money, to be truthful, transparent, and cautious, including by diligently following established procedures. On the other hand, the Tribunal did not find that the Respondent had demonstrated with clear and convincing evidence that the Applicant was motivated by her own monetary gains.
Consequently, in terms of proportionality and with reference to the Appeals Tribunal’s cited jurisprudence, the Tribunal found that the Administration did not exceed its authority when issuing the disciplinary sanctions against the Applicant.
The Applicant contested the decisions (a) to dismiss her from service pursuant to staff rules 10.1(a) and 10.2(a)(ix) for fraud, and (b) to separate her from service with compensation in lieu of notice but without termination indemnity in accordance with staff rule 10.2(a)(viii) for misuse of authority. The latter sanction was, however, subsumed in the first decision to dismiss the Applicant from service.
Under the jurisprudence of the Appeals Tribunal, in conducting a judicial review of a disciplinary case, the Dispute Tribunal is required to examine (a) whether the facts on which the disciplinary measure is based have been established; (b) whether the established facts amount to misconduct; (c) whether the sanction is proportionate to the offence; and (d) whether the staff member’s due process rights were respected. When termination is a possible outcome, misconduct must be established by clear and convincing evidence, which means that the truth of the facts asserted is highly probable (see para. 51 of Karkara 2021-UNAT-1172, and similarly in, for instance, Modey-Ebi 2021-UNAT-1177, para. 34, Khamis 2021-UNAT-1178, para. 80, Wakid 2022-UNAT-1194, para. 58, Nsabimana 2022-UNAT-1254, para. 62, and Bamba 2022-UNAT-1259, para. 37). The Appeals Tribunal has further explained that clear and convincing proof “requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt—it means that the truth of the facts asserted is highly probable†(see para. 30 of Molari 2011-UNAT-164). In this regard, “the Administration bears the burden of establishing that the alleged misconduct for which a disciplinary measure has been taken against a staff member occurred†(see para. 32 of Turkey 2019-UNAT-955).
As the Appeals Tribunal stated in Ogorodnikov 2015-UNAT-549, “[s]ince the parties have agreed to and identified the facts in their Joint Statement, … it is not open to [the Dispute Tribunal] to conduct its own evaluation and then to substitute its view for that of the partiesâ€.
The Appeals Tribunal has consistently held that Information Circulars, like other guidelines, lack legal authority and therefore have no binding, but only persuasive, effect (see, for instance, Villamoran 2011/UNDT/126, Charles 2013-UNAT-286, and Asariotis 2015-UNAT-496). At the same time, while “circulars may be lower in the contractual hierarchy to the staff regulations and directives, they are of equal standing as legal instruments potentially introducing or establishing implied terms of the contract†(see Abusondous 2018-UNAT-812, para. 11, quoting Husseini 2016-UNAT-701, para. 15).
Under the doctrine of stare decisis, the Tribunal is bound by the jurisprudence of the Appeals Tribunal (see, for instance, Igbinedion 2014-UNAT-410).
In Asghar 2020-UNAT-982, para. 36, the Appeals Tribunal defined fraud as “the unlawful making, with the intent to defraud or deceive, of a misrepresentation which causes actual prejudice, or which is potentially prejudicial, to anotherâ€. It further specified in para. 35 that fraud consists of three cumulative elements, namely (emphasis added): “the making of a misrepresentation, the intent to deceive and prejudice†(if not cumulative, the Appeals Tribunal would have stated “or†instead of “andâ€).
The Appeals Tribunal does not limit the definition of fraud to situations where the perpetrator deceives another physical or legal person for her/his “personal gainâ€. Instead, the third element is that of actual or (potential?) prejudice to “another†pursuant to Asghar, presumably thereby referring to a physical or legal person. In this regard, the Tribunal notes that the Appeals Tribunal has affirmed the general principle of interpretation on “where the law does not distinguish, neither should we distinguish†(in Latin: ubi lex non distinguit, nec nos distinguere debemus; see, Faust 2016-UNAT-695, para. 34). The Tribunal is, in principle, therefore not allowed to introduce the alleged perpetrator’s own benefit as a third obligatory element.
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 proportionateâ€.
Specifically regarding the imposition of a disciplinary sanction, the Tribunal notes that the Appeals Tribunal has held that the “matter of the degree of the sanction is usually reserved for the Administration, which has discretion to impose the measure that it considers adequate in the circumstances of the case and for the actions and conduct of the staff member involved†(see, para. 45 of Appellant 2022-UNAT-1216).
The “ultimate test, or essential enquiry, is whether the sanction is excessive in relation to the objective of staff disciplineâ€, and the “most important factors to be taken into account in assessing proportionality of a sanction include the seriousness of the office, then length of service, the disciplinary record of the employee, the attitude of the employee and his past conduct, the context of the violation and employer consistencyâ€.