2021-UNAT-1181

2021-UNAT-1181, Hossain

UNAT Held or UNDT Pronouncements

UNAT considered an appeal by the Secretary-General. UNAT held that the UNDT erred in fact and in law in its finding that the facts of misconduct were not established by clear and convincing evidence. UNAT held that a number of the factual findings made by UNDT were not supported by the evidence and were unreasonable. UNAT held that the UNDT should have limited itself to determining whether the Secretary-General was within his authority to impose disciplinary measures on Mr. Hossain, and that by speculating on the misconduct of another individual, the UNDT exceeded its competence. UNAT held that the UNDT did not evaluate the evidence objectively; it came to an unreasonable conclusion on the facts which were not supported by the evidence, and made speculations instead of findings based on the evidence. UNAT held that the UNDT erred in law and fact in finding that the decision to separate Mr. Hossain from the Organisation was unlawful. UNAT held that the sanction was not unreasonable, absurd, or disproportionate, but rather a reasonable exercise of the Secretary-General’s discretion. UNAT rejected the Secretary-General’s claim for compensation. UNAT upheld the appeal a vacated the UNDT Judgment.

Decision Contested or Judgment Appealed

Mr. Hossain challenged the Administration’s disciplinary sanction of separation from service with compensation in lieu of notice without termination indemnity for two charges of misconduct, namely the unauthorised transporting of ammunition and interfering with the investigation. UNDT rescinded the sanction, awarded compensation in lieu of rescission and awarded moral damages.

Legal Principle(s)

Judicial review of a disciplinary case requires UNDT to consider the evidence adduced and the procedures utilised during the course of the investigation by the Administration; UNDT is to examine whether the facts on which the sanction is based have been established, whether the established facts qualify as misconduct under the Staff Regulations and Rules, and whether the sanction is proportionate to the offence. The Administration bears the burden of establishing that the alleged misconduct for which a disciplinary measure has been taken against a staff member occurred. 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. The presumption of innocence has to be respected.

Outcome

Appeal granted

Outcome Extra Text

N/A

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The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.

Full Judgment

Applicants/ Appellants

Hossain

Entity

UNAMI

Case Number(s)

2020-1486

Tribunal

UNAT

Registry Location :

New York