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UNDT/2013/012, Toukolon

UNAT Held or UNDT Pronouncements

The Organization’s jurisdictional competence does not extend to the physical assault of a non-Ãå±±½ûµØstaff member by a staff member. It was within the province of the Respondent or his agents in this case to investigate the events leading up to the physical assault of Ms. Oduke. Having established that Ms. Oduke had been physically assaulted, the appropriate action for the Administration after that would have been for Ms. Oduke, as a non-staff member, to be advised or even assisted to file charges againstthe Applicant for assault in the appropriate local court. The conclusions of the local court could then have formed the basis for any subsequent administrative action against the Applicant. United Nations Managers have no competence to make pronouncements of law on certain legal matters which fall squarely within the province of national courts. The Administration, in line with its own practice and in proper application of its internal laws, ought to have imposed a sanction, not more serious than a censure against the Applicant for verbally abusing Mr. Perera and for engaging in aggressive and uncooperative behaviour directed towards him at the same time. The fact of the Applicant’s drunkenness, his remorse concerning the incident and his apology to Ms. Oduke and all concerned in the incident, as soon as he sobered up and the fact that Ms. Oduke a non-Ãå±±½ûµØstaff member was at the Base outside curfew hours were mitigating factors which ought to have been taken into account. The doctrine of proportionality is applicable in this case to reduce the Applicant’s separation from service without compensation in lieu of notice and termination indemnity to a censure in line with the Secretary-General’s practice in disciplinary cases.

Decision Contested or Judgment Appealed

On 6 July 2011, the Applicant was separated from service for having assaulted one Ms. Juliet Marion Oduke on 4 July 2010, verbally abusing a Security Officer with UNMIS and engaging in aggressive and uncooperative behaviour towards him. The Applicant contests the disciplinary measure imposed on him and requests to be reinstated and compensated.

Legal Principle(s)

N/A

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

UNDT ordered the Respondent to rescind the Applicant’s separation from service with compensation in lieu of notice and with termination indemnity and held that until the date of closure of UNMIS, he remained lawfully in the service of the Organization. UNDT ordered the Respondent to pay the Applicant all his salaries and entitlements from 6 July 2011 until the date of closure of UNMIS.

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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.