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UNDT/2012/101, Leal

UNAT Held or UNDT Pronouncements

The Tribunal observed that the Applicant conceded, in his closing submission, that the distribution and storage of pornographic material using the UNDP equipment constituted misconduct. Therefore, the Tribunal considered the characterization of this charge settled and did not go on to examine it. On due process, the Tribunal found that the investigation was hasty and afforded the; Applicant little opportunity to prepare for his case. On proportionality, the Tribunal held that the lack of due process shown on the part of the Respondent while investigating the Applicant must necessarily count to mitigate his separation. To this extent, the sanction imposed on the Applicant was not proportionate in the circumstances.

Decision Contested or Judgment Appealed

The Applicant contested UNDP’s decision to separate him from service with payment in lieu of notice without termination indemnity. The Applicant contended that the investigation into his conduct was so unfair and procedurally flawed, as to render its conclusions unsafe. The Applicant also contended that the sanction imposed on him was grossly disproportionate to the alleged misconduct.

Legal Principle(s)

Pursuant to the jurisprudence, the role of the UNDT in disciplinary cases is to perform a judicial review of the case and assess the following elements: i. Whether the facts were established by clear and convincing evidence; ii. Whether facts amount to misconduct; iii. Whether the sanction is proportionate to the gravity of the offence; and iv. If the staff member’s due process rights were guaranteed during the entire proceeding.

Outcome
Judgment entered for Applicant in full or in part
Outcome Extra Text

The Tribunal ordered the Respondent to: i) Adjust the sanction from separation from service with payment in lieu of notice without termination indemnity to separation from service with termination indemnity; and ii) Pay the Applicant interest on the termination indemnity at the US Prime Rate from the date of the Applicant’s separation from service.

OAJ prepared this case law summary for informational purposes only. It is no official record and should not be relied upon as an authoritative interpretation of the Tribunals' rulings. For the authoritative texts, please refer to the judgment or order rendered by the respective Tribunal. The Tribunals are the only bodies competent to interpret their respective judgments, as provided under Article 12(3) of the UNDT Statute and Article 11(3) of the UNAT Statute. Any inaccuracies in the publication are the sole responsibility of OAJ, which should be contacted directly for any correction requests. To provide comments, don't hesitate to get in touch with OAJ at oaj@un.org.

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

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