UNDT/2016/198, Blais
The Tribunal found that the Applicant’s due process rights had been respected, that the facts on which the disciplinary measure was based were established and amounted to misconduct, and that the disciplinary measure was proportionate to the offence, and rejected the application. Misconduct: Under the relevant rules, misrepresentation, forgery or false certification in connection with an official claim or benefit—which can include failure to disclose a fact material to that claim or benefit—can be “wilful, reckless or grossly negligent”. Gross negligence is defined as “an extreme or aggravated failure to exercise the standard of care that a reasonable person would have exercised with respect to a reasonable foreseeable risk” (para. 6(p) of OD No. 36). An Applicant who submits and certifies an insurance claim with false and misleading information, and which is supported by documents that were properly found to be fake, and who admits his negligence in this respect, acts at the very least grossly negligently, as per the above definition. Such behavior constitutes misconduct under Chapter X of the Staff Rules and Regulations. Segregation of tasks in disciplinary proceedings: The fact that a Legal Specialist of the Human Resources Department signs the charge and decision letter on behalf of the person vested with the relevant authority, when there is evidence that that person had previously given his or her consent to the content of that letter, does not constitute an irregularity of the disciplinary process. Right to counsel: The fact that the charge letter, while informing the staff member of his right to counsel, refers to such counsel being at the staff member’s own expense, while not referring to the possibility to have “free” counsel from OSLA does not constitute an irregularity; this is particularly so when the charge letter refers to an administrative issuance which, in turn, makes direct and clear reference to counsel from OSLA and provides the relevant information in that respect.
The Applicant appealed the termination of his employment with one month’s compensation in lieu of notice. His wife underwent surgery which was mainly, if not exclusively, cosmetic in nature, in a clinic in Tunisia. The Applicant submitted an insurance claim to Vanbreda for “repair of the abdominal hernia”, without mentioning any of the cosmetic treatments, nor his wife’s stay in a five star resort. With his claim, the Applicant filed supporting documents which he subsequently admitted were fake, claiming, that he was the victim of a scam by the clinic. Vanbreda contacted the clinic and learned that the documents submitted by the Applicant were not those provided by the clinic and were fake. An IAIG investigation was initiated and the Applicant was charged with having submitted a fraudulent insurance claim and supporting documents. His appointment was terminated for misconduct.
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