UNDT/2010/001, Abboud
In this case the initial inquiry was inadequate and affected by bias. Outcome: Applicant awarded USD20,000 for breach of contractual right. Parties directed to make submissions as to whether ST/AI/371 is still operative or has been implicitly appealed by ST/SGB/2009/7. Further hearing to decide as to whether USG’s conduct should be referred to the SG for possible action to enforce accountability pursuant to art 10.8 of the UNDT Statute.
The applicant was interviewed for a position by an interview panel, but complained to the USG of the Department about the conduct of one of the panelists, namely the USG’s Special Assistant (SA). Section 2 of ST/AI/371 required the USG to undertake an initial inquiry to determine whether there was “reason to believe” that the SA had “engaged in an unsatisfactory conduct for which a disciplinary measure may be imposed”. The USG obtained certain limited information and decided that a preliminary investigation was not called for. It is this decision which the applicant appealed.
Staff members have a contractual right to have their request for an investigation fairly and competently considered. The initial inquiry as to whether there is reason to believe unsatisfactory conduct occurred must be sufficient to enable the decision to be rationally made. The personal opinion of the decision-maker that unsatisfactory conduct did or did not occur is irrelevant: the question is one of objective judgment. If there is such a reason to believe, there is not discretion to decline to undertake a preliminary question. The decision-maker must consider all relevant and disregard all irrelevant matters, free from bias and without any error of significant fact.