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The Applicants argue that the facts were not established and that their actions did not amount to misconduct, since they were acting in self-defense or in defense of someone else. The Tribunal noted that video evidence, i.e. hotel security camera footage, constituted the only reliable evidence to establish the facts in the instant case and concluded that the Applicants, who were on an official mission at the material time, initiated the dispute and the physical altercation and did not act in self-defense when they assaulted a security guard. Accordingly, the UNDT found that the facts...

Due Process: UNAT concluded in Molari that “disciplinary cases are not criminal.” So therefore the right and rules pertaining to self-incrimination are purely associated with criminal procedure and therefore does not apply in this instance which is a disciplinary case. The Tribunal finds that she was provided systematically with the evidence, including the payslips in the course of the interview, in addition to an opportunity to review the record of interview. Ultra vires: In this case the person who took the decision as recorded in the letter of dismissal was the Under Secretary-General for...

Effect of the breach of due process rights: The Tribunal found that while the Applicant had been denied some of his due process rights at the investigation stage, this breach was cured by the subsequent court proceedings. Further, the Tribunal held that the sanction of summary dismissal was fully justified in view of: (i) the status of the Applicant in the procurement process of ECA; (ii) the fact that he contracted with United Nations vendors without disclosing that fact in clear terms; and (iii) the fact that he was engaged to some extent in the activities of two other companies without...

ReceivabilityThe placement of a staff member on administrative leave is within the discretion of the Secretary-General. It is an administrative decision for the purposes of art. 8.1 (c) of the Statute and within the well settled meaning of an administrative action as laid down in Andronov. The Tribunal cannot assume jurisdiction to determine the validity of an administrative decision unless it has been first referred to the Management Evaluation Unit pursuant to art.11.2 of the Staff Rules. In the absence of management evaluation of the decision to place the Applicant on administrative leave...

The Tribunal concluded that the facts on which the sanction was based were established, that the established facts constituted misconduct and that the sanction was proportionate to the offence. Hearings in disciplinary matters: The Tribunal held that it is the duty of the Judge to decide whether the nature of the case is such that a hearing may be dispensed with. The Judge should consider the following factors: (i) the issues raised and their complexity; (ii) the availability and relevance of witnesses; (iii) the stand of the Applicant and that of Respondent; and (iv) the legal issues involved...

The Tribunal deemed that it was established that in October 2013, the Applicant, a staff member of UNHCR in Turkey, had travelled to Syria in her capacity as a member of a delegation of the Women International Democratic Federation, responding to an invitation received from the Syrian Arab Republic General Women Union. During that visit, she attended a meeting with the President of Syria during which she handed him a flag with the words “Do not yield” in Turkish. A picture of that encounter was taken and published in a Turkish online newspaper. The Tribunal considered that in view of the clear...

The Tribunal found that it was established by clear and convincing evidence that the Applicant had had sexual intercourse with two persons under the age of eighteen and that the sanction of dismissal, together with a fine, were proportionate to the established misconduct. This conclusion was independent from the outcome of the judicial proceedings before the national courts of Kosovo with respect to the violation(s) of the CCK. Standard of review of disciplinary matters: In reviewing disciplinary matters, the Tribunal must examine(1) whether the facts on which the disciplinary measure was...

The Tribunal concluded that, based on the inconsistencies identified in the complainant’s statement during the investigation, together with the absence of his testimony during the appeal, as the only direct witness apart from the Applicant, the complainant’s version of facts did not corroborate the other witnesses’ statements, except for one witness, who had only an indirect knowledge of the alleged incident. The Tribunal concluded that there was no reasonable link between the alleged physical assault and the existing injury. The Tribunal further concluded that the procedure followed was...

UNDT accepted the Applicant’s witnesses’ as evidence as relevant and admissible. The witnesses generally addressed theatmosphere in which the United Nations Interim Security Force for Abyei (UNISFA) staff in Abyei functioned, including the reaction of the principal chiefs of the Dinka tribe to policy changes which they did not like. This raised issues to be considered in assessing the complaints of Complainants 1 and 2. Complainants 1 and 2 did not sign or indicate the veracity of their statements. This failure to authenticate the statements created doubt as to the veracity of the statements...

When termination was the possible outcome of the investigation, each allegation of misconduct must be established by clear and convincing evidence; in other words, the truth of the facts asserted must have been highly probable. The only rule cited as applicable in this case referred to a blood alcohol level as a measure of intoxication. The Applicant was not subjected to a blood test. TheTribunal found that there was no clear or convincing evidence before the Respondent that the Applicant drove while intoxicated. There is no rule prohibiting United Nations staff from having a drink of alcohol...