UNDT/2017/082, Veyrat
Establishment of the facts which form the basis of disciplinary measures The Tribunal emphasized that the establishment of the facts was not contested by the Applicant. The Applicant admitted to having taken, on four occasions and without authorisation, a total of four beehives that belonged to UNOG and brought them back to his home, between October 2015 and February 4 2016. He also admitted to having them repainted, for having removed their nameplates and for wanting to install them in his garden. Do the established facts constitute a fault? The Tribunal was of the opinion that the removal of the beehives cannot be characterized as anything other than theft. Therefore, the Tribunal was satisfied that the Applicant, in appropriating the beehives, exhibited a lack of integrity within the meaning of Article 1.2(b) of the Staff Regulations. The theft of beehives also consitutes a lack of judgment in the use of property belonging to the Organization, under Article 1.2(q) of the Staff Regulations. Therefore, the Tribunal was of the view that the removal of the beehives constiutes misconduct within the meaning of Staff Regulation 10.1(a). Regularity of the procedure The Tribunal took note of the fact that the Applicant was called on March 16 and 17, 2016 by the investigators as a witness, rather than as a subject. However, the Tribunal was of the opinion that although it is possible to have situations in which the fact that a person is called as a witness, rather than as a subject, could have an impact on the outcome of an investigation, this was not so in the present case. It follows that in light of the Michaud case law, the fact of having called the applicant a "witness" had no impact on the procedure followed and the disciplinary measure taken against the Applicant. Therefore, the Tribunal noted that this irregularity, if any, does not lead to a finding that the decision which is the subject of the complaint is illegal. Proporionality of disciplinary measures The Tribunal was satisfied that on the basis of the information available at the time of the disciplinary proceedings and the decision-making by the HRB, the stress suffered by the Applicant was duly and correctly taken into account as a mitigating circumstnace. In light of all the circumstances, mitigating and aggravating - the fact that the beehives were a donation from the Swiss government - the Tribunal was of the opinion that separation from service, with notice and severance pay, although it may appear severe, is not manifestly disproportionate to the nature and gravity of the fault committed by the Applicant.
The Applicant challenges his separation from service with three months' notice and severance pay.
Disciplinary cases are administrative in nature, not criminal, and therefore the standards of a legal procedure of criminal law do not apply to disciplinary cases (Jahnsen Lecca 2014-UNAT-408). The preliminary investigation for the opening of the disciplinary proceedings is not conducted in an adversarial manner and the official is entitled to advice only from the transmission of the letter notifying him of the allegations of misconduct against him. The judge's control over the proportionality of the sanction is limited and he can overrule a sanction only if it is manifestly disproportionate (Sanwidi 2010 UNAT 084, Shahatit 2012-UNAT-195). It is not the role of the Tribunal to substitute the Secretary-General and choose the disciplinary sanction that seems most appropriate; its role is limited to examining whether, in choosing the disciplinary measure, the Secretary-General demonstrated a reasonable exercise of his discretionary power in disciplinary matters.