UNDT/2024/030, Navas Castillo
The Applicant was under the obligation to act with a minimum level of probity, impartiality, fairness, honesty and truthfulness as required by the established facts (staff regulation 1.2(b)). Also, if it is found that an actual or possible conflict of interest arose out of these facts, the Applicant was obliged to disclose this conflict to his head of office in order to allow UNVMC to mitigate its impact and resolve it in accordance with its own best interests (staff regulation 1.2(m)). Finally, if the Applicant’s involvement in a matter could result in an actual or potential conflict of interest as per the facts, he should have formally excused himself therefrom (former staff rule 1.2(q)).
A United Nations staff member’s legal obligations under her/his employment contract stemming from a private relationship with either an IC and/or an employee of private company, such as Trigyn, working for the United Nations must be assessed on a case-to-case basis in due consideration of the particular circumstances of the specific situation.
Due to the nature and circumstance of the relationship between the Applicant and AA, he was indeed in an actual, and not just potential, conflict of interest when AA was hired as an IC and when the Applicant directly or indirectly supervised her in the FTS warehouse, both as an IC and as an Trigyn employee. Rather than acting on this conflict of interest and taking appropriate remedial measures, the Applicant went ahead and entirely dismissed and ignored it, even if he was strongly warned by BP, his own supervisor, against AA working in warehouse.
Accordingly, when considering the Applicant’s established offences, under Sanwidi, the USG/DMSPC acted within the scope of her discretion when finding that the Applicant had engaged in misconduct.
Also, the Applicant seriously compromised the objectivity of the selection process for the IC post and should also have avoided any direct or indirect supervisory roles vis-à -vis AA. This negatively impacted the Organization’s reputation amongst FTS staff members, who were aware of the relationship, and the general work environment in FTS, as also demonstrated by controversy between the Applicant and AA in connection with a colleague’s private party. Potentially, which the Applicant should also have understood, the situation could also have critically affected UNVMC’s status and standing in the host country, both with the Government and in the eye of the general public.
Accordingly, albeit the Respondent not being able to fully establish all the facts, misconduct allegations, and aggravating circumstances presented in the sanction letter, the Tribunal finds that in terms of proportionality, the contested disciplinary sanction fell within the scope of discretion of the USG/DMSPC.
The Applicant contests the decision to impose on him the disciplinary measure of separation from service, with compensation in lieu of notice and with termination indemnity.
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€. 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 perverseâ€.
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). Also, whereas the “principle of proportionality requires that a disciplinary measure imposed on a staff member shall be proportionate to the nature and gravity of his or her misconductâ€, the Administration has “discretion to impose a disciplinary measure that it considers adequate to the circumstances of a case, and the Tribunal should not interfere with administrative discretion unless it is tainted by irrationality or is arbitrary†(see, para. 26 of Specker 2022-UNAT-1298).
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 the proportionality of a sanction include the seriousness of the offence, 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 consistency†(see, paras. 70 and 72 of AAD 2022-UNAT-1267).
Accordingly, when “the sanction of termination is chosen by the Administrationâ€, the “requirement of proportionality asks whether termination is the appropriate and necessary sanction for the proven misconduct or whether some other alternative sanction will be more suitable in the circumstancesâ€. “The question to be answered in the final analysis is whether the staff member’s conduct has led to the employment relationship (based on mutual trust and confidence) being seriously damaged so as to render its continuation intolerableâ€. (See, paras. 47-48 of Appellant).