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UNDT/2017/100, Majut

UNAT Held or UNDT Pronouncements

The Tribunal concluded that, based on the inconsistencies identified in the complainant’s statement during the investigation, together with the absence of his testimony during the appeal, as the only direct witness apart from the Applicant, the complainant’s version of facts did not corroborate the other witnesses’ statements, except for one witness, who had only an indirect knowledge of the alleged incident. The Tribunal concluded that there was no reasonable link between the alleged physical assault and the existing injury. The Tribunal further concluded that the procedure followed was irregular, the facts that the Applicant committed physical assault were not correctly established during the investigation since they were not supported by clear and convincing evidence, and therefore these facts did not constitute misconduct. Furthermore, the Tribunal concluded that there was no factual basis to apply the disciplinary sanction of separation from service by the Administration. The Tribunal decided that: (1) the contested decision was rescinded; (2) as an alternative to the rescission of the contested decision, the Respondent was to pay to the Applicant USD5,000; (3) the Respondent was to pay the Applicant the equivalent of the sum from between 17-30 June 2016 as material damages, and USD5,000 as moral damages. (4) any references relative to the Applicant’s disciplinary sanction of separation from service were to be removed from his official status file; and (5) the judgment was to be included in the Applicant’s official status file. However, the Applicant’s request for legal costs was rejected.

Decision Contested or Judgment Appealed

The decision to separate the Applicant from service with compensation in lieu of notice and without termination indemnity

Legal Principle(s)

Alternative to rescission of a decision: Art. 10.5(a) of the Dispute Tribunal’s Statute provides that, in addition to an order that a contested decision be rescinded, the Tribunal must also set an amount of compensation that the Respondent may elect to pay as an alternative to the rescission of the decision. Requirements for award of compensation: Art. 10.5(b) of the Dispute Tribunal’s Statute has set as a mandatory new requirement (following GA’s amendment in 2014) that the Dispute Tribunal may only award compensation “for harm, supported by evidenceâ€. This requirement is both substantive, because the compensation can only be awarded for harm, and procedural, because the harm must be supported by evidence.

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

Only financial compensation

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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.