UNDT/2019/033

UNDT/2019/033, Aahooja

UNAT Held or UNDT Pronouncements

The Tribunal found that a witness’ evidence on all matters totally lacked credibility and due to its conflicting nature was at best unreliable. The different versions of the facts were entirely contradictory. In such a situation the Tribunal has no course other than to totally exclude all evidence from the witness as lacking any probative value. The testimony presented and heard by the Tribunal does not prove, at the required standard, that the charge of collusion in fraud or gross negligence against the Applicant was made out. The Respondent had the burden of proof, which he did not discharge. It was, additionally thus not reasonably open to the decision maker to find the charges proven at the standard of clear and convincing on the basis of the actually probative and acceptable evidence produced before her. Much of what is contained in the investigation report is conjecture or hearsay assertion, which is unsupported by primary or corroborative evidence. For the consideration of the final disposition of a matter it is entirely insufficient for an investigator to provide a report substantially devoid of actual evidence and/or evidence that can be tested as part of the fair trial rights and procedural fairness rights of a party before the Tribunal. The decision maker was presented with evidence of very poor quality upon which it would not have been reasonably or lawfully possible to reach the conclusion that any of the charges brought had been proven on the basis of clear and convincing evidence. The Tribunal finds that there is neither evidence of benefit nor of collusion. It is further most unfortunate that there is no discussion to be found as to the analysis undertaken by the decision maker in respect of these findings. Such decisions as made in this matter, require clear and logical reasons to be given, not merely a conclusion to be stated. The Investigator failed to divulge the loss of the project files in her investigation report and nor did the Respondent in his reply to the Tribunal. Yet these reports are fundamental to the proof, or otherwise, of the allegations in Counts 2 to 7 against the Applicant. The Tribunal is most concerned that the investigator was prepared to conceal the loss of these files. This may well have resulted in a perversion of the cause of justice in the system as it was applied to the Applicant. The breaches of the due process rights, procedural fairness and natural justice rights of the Applicant, together with the apparent lack of integrity through both non-disclosure and the inclusion of, or failure to remove, known erroneous material in the investigative report, are matters, which taken on their own, would be such as to justify the rescission of the decision in this matter. Based on the above analysis of each of the counts in respect of which the Applicant was charged, UNICEF did not establish all the relevant and necessary facts for the alleged misconduct at the required standard of clear and convincing evidence. Consequently, the facts that are asserted as established, when in fact they are not, do not qualify as misconduct. The Tribunal finds that the evidence, such as it was, for the reasons expressed above, is not capable of supporting any of the allegations against the Applicant on a clear and convincing standard of proof or on a lower standard of proof. Therefore, the sanction of summary dismissal is unlawful. The evidence of the Applicant was such that she lost her career, for which the Tribunal will make an order rescinding the decision, with compensation in lieu. The Applicant has further claimed moral damages. There is, however, no evidence upon which the Tribunal can consider such claim.

Accountability referral: there were serious shortcomings in the manner in which the investigator conducted the investigation and the manner in which the findings of fact were presented in the investigation report. […] As a result, this case shall be referred to the Executive Secretary, UNICEF, for consideration of accountability pursuant to Article 10.8 of the Tribunal’s Statute.

Decision Contested or Judgment Appealed

The Applicant challenged the decision to dismiss her from service on allegations of fraud and gross negligence.

Legal Principle(s)

In considering the requirements imposed on the Administration when making disciplinary decisions, “the Administration bears the burden of establishing that the alleged misconduct for which a disciplinary measure has been taken against a staff member occurred.” Furthermore, when termination is a possible sanction, the “misconduct must be established by clear and convincing evidence,” which “means that the truth of the facts asserted is highly probable” Nyambuza 2013-UNAT-364, Hallal 2012-UNAT-207. Investigators must be entirely fair in their investigation and in the presentation of their results given that the legal framework of disciplinary procedures within the Organization restricts the rights of the suspected staff member. Staff members do not have the right to legal representation during the interview phase, no right to challenge witnesses and are generally required to answer summaries of unsworn statements made by witnesses, who may or may not have an ulterior motive in making a statement. The investigators have a duty to work within the scope of the defined investigation when writing the investigative report. They must set out all relevant matters touching upon the issues, whether inculpatory or exculpatory, so as to produce a report providing a full, fair and clear picture of all the facts involving the alleged misconduct, within their context, noting that it is the Secretary-General who has the burden of proof in any disciplinary matter. In Mbaigolmem 2018-UNAT-819 (paras. 27-29), the Appeals Tribunal, ruled that “[t]he right of a staff member to “appeal” an administrative decision imposing a disciplinary measure, in terms of Article 2(1)(b) of the UNDT Statute, is not restricted to a review of the investigative process. On the contrary, it almost always will require an appeal de novo, comprising a complete re-hearing and redetermination of the merits of a case, with or without additional evidence or information, especially where there are disputes of fact and where the investigative body a quo had neither the institutional means or expertise to conduct a full and fair trial of the issues”. It also ruled that “there will be cases where the record before the UNDT arising from the investigation may be sufficient for it to render a decision without the need for a hearing. Much will depend on the circumstances of the case, the nature of the issues and the evidence at hand. Should the evidence be insufficient in certain respects, it will be incumbent on the UNDT to direct the process to ensure that the missing evidence is adduced before it.” It further found that “while there may be occasions where a review of an internal investigation may suffice, it often will be safer for the UNDT to determine the facts fully itself, which may require supplementing the undisputed facts and the resolution of contested facts and issues arising from the investigation. The UNDT ordinarily should hear the evidence of the complainant and the other material witnesses, assess the credibility and reliability of the testimony under oath before it, determine the probable facts and then render a decision as to whether the onus to establish the misconduct by clear and convincing evidence has been discharged on the evidence adduced.” Therefore, the Tribunal, in reviewing an impugned disciplinary measure, may conduct an appeal de novo, which comprises of a complete re-hearing and redetermination of the merits of a case, with or without additional information, to ascertain whether: a. The facts on which the sanction is based have been properly established b. The established facts qualify as the misconduct complained of at the appropriate level of proof and c. In the event of there being a finding against the staff member, the sanction is proportionate to the offence (see Haniya 2010-UNAT-024, Applicant 2013-UNAT-302, Kamara 2014-UNAT-398, Portillo Moya 2015-UNAT-423). It is a general principle of justice that administrative bodies and administrative officials shall act fairly, reasonably, and comply with the requirements imposed on them by law. As a normal rule, a reviewing Tribunal will not interfere in the exercise of a discretionary authority unless there is evidence of illegality, irrationality and procedural impropriety (Abu Hamda 2010-UNAT-022). It is also incumbent on the Tribunal to determine if any substantive or procedural irregularity occurred (Maslamani 2010-UNAT-028, Hallal 2012-UNAT-207), either during the conduct of the investigation or in the subsequent procedure. The duty of the investigator is to be objective, impartial, fair and to act with the highest level of integrity. The whole of the disciplinary system within the United Nations must be based upon all staff members, decision makers, and the Tribunal upon review, being able to rely upon the compliance with the procedures set down in the applicable administrative issuances and with those undertaking investigations doing so fairly, objectively and with the highest levels of integrity. The Tribunal, in conducting its review of matters of this nature does not involve itself in matters of conjecture. It looks at the allegations and the supporting evidence to ensure that it has been proven at the proper level. It examines the probative value of the evidence, its credibility and reliability to ensure that the standard of proof demanded has been reached. Hearsay evidence has very little value as it cannot be tested and thus its veracity is always in question. The burden of proof rests with the Respondent. There are cases where there may indeed be a suspicion that a staff member has engaged in serious misconduct, but such must be proven and the requisite standard of proof must be reached. The mere assertion in an investigation report that something is regarded as proven by an investigator does not mean that it is so proven. Decision makers must closely examine the alleged evidence against the charges brought. They must consider the quality of the evidence and fully consider, in a reasoned manner, whether the standard of proof has actually been reached. This is not an easy task, rather it is a very important task which is the subject of a delegation from the Secretary-General. It must be carried out fully and properly, no matter how busy a decision maker may be. If a decision maker finds issues with an investigative report or in documents prepared for them related to a decision, these should be followed up. It is important for a decision maker to differentiate between assertions made by an investigator and the actual facts as proven. The consideration of hearsay material is not a consideration of actual evidence. The production of hearsay evidence by an investigator is entirely inappropriate unless properly corroborated. It denies a staff member under investigation his or her rights to be able to test the actual evidence. All a person proffering hearsay evidence can respond is that it was what was told to them. The failure to obtain even basic proofs of evidence, rather preferring to place reliance on unsupported assertions, does nothing to provide proof of a matter. In respect of the claim for moral damages, the Tribunal notes that following the position taken by the Appeals Tribunal in Kallon, 2017-UNAT-742, granting remedy for moral damages may no longer be ascertained by the evidence from the person concerned alone, but requires “corroboration by independent evidence”. Of this, the Tribunal observed in Ross, UNDT-2018-108, at paragraph 79: “The Tribunal notes, nevertheless, that evidentiary matters have thus far been regulated on the statutory level, whereas jurisprudential developments do not afford sufficient notice to the addressees, especially given that the effect of the majority holding in Kallon on evidentiary requirements is not obvious. As a practical matter, the main source of evidence for moral damage is always the person concerned, whereas the Applicant had no reason to secure “independent corroboration” at the time when he was filing his application. It would be, therefore, permissible to rely on the affidavit filed by the Applicant, which is “evidence’ in the sense of art.5 b of the UNDT Statute, and the Tribunal’s own experience and knowledge of human psyche as to the occurrence of a moral damage such as would normally be suffered under the circumstances. The proposed live testimony from the Applicant would not have any additional import.

Outcome
Judgment entered for Applicant in full or in part

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