2016-UNAT-668, Onifade
UNAT preliminary denied the Appellant’s motions for leave to respond to the answer to the appeal and his request for production of documents and evidence, on grounds that there were no exceptional circumstances. UNAT then considered the merits of the appeal. UNAT affirmed UNDT’s decision that the investigation was not ultra vires. Whilst the Special Representative of the Secretary-General did not initiate the investigation, the nature of Chief Conduct and Discipline Team duties gave him authority to refer the matter to SIU for investigation. Even if the initiation of the investigation gave rise to a procedural irregularity, there was overwhelming uncontested evidence of Appellant’s actions, which he also admitted. UNAT noted that the investigation was carried out properly, that the Appellant’s due process rights were respected, that the finding of misconduct was established through clear and convincing evidence and that the sanction was proportionate. Moreover, UNAT held that the Appellant did not establish how the evidence he sought to be produced would have affected the outcome of the case. UNAT dismissed the appeal and affirmed UNDT’s judgment.
The Applicant contested the disciplinary measure of separation from service with compensation in lieu of notice and with termination indemnity. UNAT found that the investigation was not ultra vires. UNDT held that it was established by clear and convincing evidence that the Applicant had breached Staff Regulation 1. 2(g). Moreover, UNDT found that the disciplinary measure was proportionate. UNDT dismissed the application in its entirety.
The decision to launch an investigation into allegations of misconduct, institute a disciplinary process, and impose a disciplinary measure shall be within the discretionary authority of the Secretary-General or officials with delegated authority. Where there is reason to believe that a staff member has engaged in unsatisfactory conduct for which a disciplinary measure may be imposed, the head of the office or responsible officer shall undertake an investigation. An appellant may not raise an argument on appeal that ought to have been raised before the first instance Tribunal. Case management issues, including the question of whether to call a certain person to testify or to order the production of documents, remain within the discretion of the UNDT and do not merit a reversal except in clear cases of denial of due process of law affecting the right to produce evidence by a party.