UNDT/2019/110, Vedel
1)Disciplinary sanction The Applicant failed to disclose that her husband had been employed by UNICEF vendors during the Applicantās employment with UNICEF and these material facts on which the disciplinary measure was based have been sufficiently established and were not in dispute between the parties. The legal framework is sufficiently clear in determining that a conflict of interest may exist even where there is only the possibility that the staff member or the private business with which he or she may have association could benefit from such association. The Administration properly defined and applied the legal framework. Although the Applicant states that her spouse was not directly involved in any service provision to UNICEF, his employment by the vendors who provide substantial commercial services to UNICEF does reasonably give rise to a situation where the Applicantās private interests may be perceived to interfere with her performance of official duties. The Applicant failed to fully and accurately disclose her spouseās relationships in her financial disclosures forms, which amounted to misconduct. The disciplinary measure of loss of two steps within-grade was proportionate to the misconduct that the Applicant committed and was consistent with the practice of the Secretary-General in similar cases. The Administration took mitigating circumstances into account by acknowledging that there was informal knowledge among the Applicantās colleagues of her spouseās employment in the transportation business with UNICEF vendors. Although these mitigating circumstances existed, they were insufficient to absolve the Applicant from the obligation to make accurate disclosures in her financial disclosure forms. 2)The decision to grant a limited one-year appointment instead of a regular two-year extension. The record does not support the Applicantās contention that the Administration departed from the practice of providing two-year contract renewals due to the disciplinary investigation. UNICEF refused to grant the Applicant the standard two-year contract in response to performance management challenges in respect of the Applicantās new duties. The Respondent provided no submissions as to whether the Respondent duly complied with its performance evaluation process and thus the Tribunal could not assess this issue. Nevertheless, since the Applicantās appointment was recently renewed for another year, the issue of the two-year renewal is now moot as the Applicant has been granted a second year on her contract.
The decision to impose the disciplinary sanction of loss of two steps within-grade for failure to disclose a potential conflict of interest The decision to grant a limited on-year appointment instead of a regular two-year extension.
In cases concerning the imposition of a disciplinary measure, the Dispute Tribunal must verify if a three-fold test is met as follows: (1) whether the facts on which the disciplinary measure was based have been established (2) whether the established facts qualify as misconduct and (3) whether the sanction is proportionate to the offence. It is also incumbent on the Tribunal to determine if any substantive or procedural irregularity occurred, either during the conduct of the investigation or in the subsequent procedure. By its plain meaning, an āapparentā conflict of interest falls under the meaning of a āpotentialā conflict of interest. The purpose of the financial disclosure programme regime is to manage risks facing the United Nations, including its staff, and protect its reputation and interests. The legal framework also emphasizes that the mere perception of a conflict of interest could compromise trust in the Organizationās work and its independence and impartiality. It is also clear that the perception of a staff member is not the determining factor in establishing whether there may be a conflict of interest. The failure by a staff member to comply with his or her disclosure of information obligation under the Charter of the United Nations, the Staff Regulations and Rules or other relevant administrative issuances, or to observe the standard of conduct expected of an international civil servant, is undeniably misconduct. The jurisprudence on proportionality of disciplinary measures provides that the Tribunal will give due deference to the Secretary-General unless the decision is manifestly unreasonable, unnecessarily harsh, obviously absurd or flagrantly arbitrary. Should the Dispute Tribunal establish that the disciplinary measure was disproportionate, it may order imposition of a lesser measure. However, it is not the role of the Dispute Tribunal to second-guess the correctness of the choice made by the Secretary-General among the various reasonable courses of action open to him. Nor is it the role of the Tribunal to substitute its own decision for that of the Secretary-General. The Secretary-General has a broad discretion in decisions regarding promotions and appointments. Nonetheless, the discretion is not unfettered, and is subject to judicial review. When judging the validity of the Secretary-Generalās exercise of discretion in administrative matters, the Dispute Tribunal determines if the decision is legal, rational, procedurally correct, and proportionate. Whenever the Administration decides not to renew an appointment on the grounds of poor performance, the Tribunal has to verify if it has complied with the relevant procedures.