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UNDT ordered the applicant to show cause why his appeal against dismissal should not be struck out on the ground that it had no reasonable prospect of success. The applicant failed to respond. UNDT found that the order to show cause was properly served on the applicant and that SIU’s investigation produced clear evidence establishing the facts supporting the charges. UNDT further found that there was no procedural irregularity, improper motive, or abuse of power, and that the sanction of summary dismissal was a fair and proportionate response. Outcome: The application was struck out in its...

The Tribunal is entitled to examine the entire case before it. In other words, the Tribunal may consider not only the administrative decision of the Secretary-General imposing disciplinary measures but also examine the material placed before him on which he bases his decision in addition to other facts relevant to the said material. The rush by the investigators to produce a prejudiced report dripping with innuendos, riddled with ridiculous findings and which completely and unjustly tars the Applicant with a brush of criminality must be loudly condemned by this Tribunal.

Demotion: A demotion is not a purely financial disciplinary measure, unlike a fine or loss of steps. It also carries a stigma and a loss of responsibilities. Discretion of the Secretary-General in disciplinary matters: Due deference must be shown to the Secretary-General’s choice of the appropriate disciplinary measure. Establishment of charges: If the disciplinary measure is justified with respect to the established facts in relation to a certain charge, it is not necessary to determine whether additional charges are also established. Violation of due process rights and compensation: Not...

The facts at issue and their legal characterization (physical assault) were established. However, the Tribunal found that the sanction imposed was disproportionate, considering that the mitigating circumstances applicable, notably the Applicant’s mental health condition at the time of the incident giving rise to the disciplinary measure and alleged provocation before it, were not fully and properly considered. It was noted that the investigation failed to gather sufficient evidence on these aspects, which where thus not properly put before the decision-maker. Unlawfulness of a “forfeit...

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...

An assault on a co-worker in connection with work constitutes misconduct, no matter the type of contract or appointment. The direct evidence from written statements, confirmed by strong circumstantial evidence adduced both in the investigation and at the hearing, taken cumulatively constitute a clear and convincing concatenation of evidence establishing, with a high degree of probability, that the alleged misconduct in fact occurred. In the Applicant’s case, whereas the Tribunal would not be inclined to rely heavily on “character witnesses” heard rather selectively, the mere fact that the...

As part of a closing statement, the Applicant submitted new written evidence. The Tribunal rejected all new evidence as this evidence could have been submitted before the closing of the proceedings and no exceptional circumstances justified the late submission. The Applicant was not fully informed of all the evidence upon which the Administration would rely to impose the disciplinary sanction. However, he was nevertheless informed of the allegations against him and therefore the Tribunal proceeded to a de novo review of the facts and a judicial review of the remaining aspects of the case. It...

It was reasonable for the responsible official to determine that the status and management of the UNJSPF is a legitimate subject of concern to staff at large and therefore comments made by staff representatives about the management of UNJSPF concern work-related issues. In this regard, the Tribunal notes that staff rule 8.1(f) entitles staff representative bodies to effective participation in identifying, examining and resolving issues relating to staff welfare, including conditions of work, general conditions of life and other human resources policies. It also was reasonable for the...

The Applicant’s attempt to hug V01 did not on its own qualify as an unwelcome sexual advance or request for sexual favour or verbal or physical conduct or gesture of a sexual nature or any other behaviour of a sexual nature. The Applicant’s asking for V01’s room number on multiple occasions did not constitute sexual harassment. The facts did not establish sexual harassment as defined in ST/SGB/2008/5 and as interpreted in various jurisprudence. The Respondent’s investigations were skewed toward finding a case for sexual harassment regardless of the inadequacy of evidence to substantiate the...

Have the facts on which the disciplinary measure was based been established? The evidence on record, including the investigation report, the coherent hearsay evidence pointing to a pattern of behaviour, the consistency of the witness statements, the Applicant’s contradictory statements, and the inherent probabilities of the situation in the working and living conditions, cumulatively constitute a clear and convincing concatenation of evidence establishing, with a high degree of probability, the acts of sexual harassment. Do the established facts legally amount to misconduct? The Tribunal finds...