UNDT/2019/017, Ongeri
The Tribunal did not agree with the Respondent that the actions of the Applicant as seen on the video footages were sufficient to rise to the required standard of proof of clear and convincing evidence to establish stealing; but found that the actions of the Applicant after he left with the shopping bag and the glaring inconsistencies in his testimony clearly pointed to a level of dishonesty betraying guilty knowledge that he did not pay for the items at issue. In other words, the Applicant knew that he did not pay for certain items especially after he, a career security officer, was accosted barely an hour later by the Commissary’s manager. He however chose to behave as if nothing had happened. The Applicant’s three differing accounts that (a) he did not know that the box of chocolates was not scanned by the cashier, (b) that he had given the cashier Ksh2,000 stuck together rather than Ksh1,000 and (c) that he had paid for the box of chocolates before he went to pick it off the shelves; were fatal to his case. Clearly, these differing accounts were the products of a guilty mind, not the words of an honest staff member.
The Applicant challenged the disciplinary sanction of separation from service with compensation in lieu of notice and with termination indemnity imposed on him by the Respondent.
Staff Regulation 1.2(b) provides that staff members shall uphold the highest standards of efficiency, competence and integrity. The regulation explains further that integrity includes probity, impartiality, fairness, honesty and truthfulness in all matters affecting their work and status. Staff Regulation 1.2(f) enjoins staff members to conduct themselves at all times in a manner befitting their status as international civil servants. In misconduct, especially if it concerns theft or misappropriation, it needs be established that the subject staff member has guilty knowledge that he or she has engaged in the act alleged against him or her. There are areas of law such as Tort and Commercial practice where persons may be liable, because by virtue of their position, they ought to have known or are deemed to know certain facts. Misconduct does not belong in those areas of law.