UNDT/2019/172, Halidou
As part of a closing statement, the Applicant submitted new written evidence. The Tribunal rejected all new evidence as this evidence could have been submitted before the closing of the proceedings and no exceptional circumstances justified the late submission. The Applicant was not fully informed of all the evidence upon which the Administration would rely to impose the disciplinary sanction. However, he was nevertheless informed of the allegations against him and therefore the Tribunal proceeded to a de novo review of the facts and a judicial review of the remaining aspects of the case. It was established by clear and convincing evidence that the Applicant slapped the victim in the face. However, the Tribunal found that the sanction letter’s conclusion that the Applicant slapped the victim in the face “with force thereby causing him to fall to the ground” and that it caused an earache and a perforated eardrum was not established by clear and convincing evidence. The Applicant’s actions constituted abuse at the workplace and the established facts amounted to misconduct. The sanction in the present case was based on an incorrect determination of the nature and gravity of the Applicant’s acts. The Tribunal agreed that there is no place for physical violence or corporal punishment in the workplace. However, this does not mean that the Administration can only impose a minimum sanction of separation in all cases of physical assault. In the present case, given the serious mistakes and irregularities in the investigation and the disciplinary process, the Tribunal found that the imposition of separation from service with compensation in lieu of notice and with termination indemnity was excessive and disproportionate to the misconduct and decided to impose on the Applicant demotion with deferment, for three years, of eligibility for consideration for promotion. Considering that the Applicant was on a continuing appointment at the time of separation, the Tribunal set the alternative compensation at 24 months of the Applicant’s net-base salary at the rate that he would have been paid had he been demoted at the time of his separation, plus the applicable Organization’s contribution to his pension fund and to his medical insurance, minus the termination indemnity that he received upon his separation.
The decision to separate the Applicant from service with compensation in lieu of notice and termination indemnity for physical assault.
The general standard of judicial review in disciplinary cases requires the Dispute Tribunal to ascertain: (a) whether the facts on which the disciplinary measure was based have been established (b) whether the established facts legally amount to misconduct and (c) whether the disciplinary measure applied was proportionate to the offence. When termination is a possible outcome, misconduct must be established by clear and convincing evidence, which means that the truth of the facts asserted is highly probable. Only substantial procedural irregularities will render a disciplinary measure unlawful. Even a very severe disciplinary measure like separation from service can be regarded as lawful if, despite some procedural irregularities, there is clear and convincing evidence of grave misconduct, especially if the misconduct consists of a physical or sexual assault. It is undisputed that physical assault amounts to misconduct. The Administration has discretion to impose the disciplinary measure that it considers adequate to the circumstances of a case and to the actions and behavior of the staff member involved, and the Tribunal should not interfere with administrative discretion unless the sanction imposed appears to be blatantly illegal, arbitrary, adopted beyond the limits stated by the respective norms, excessive, abusive, discriminatory or absurd in its severity. Due deference does not entail uncritical acquiescence. While the Dispute Tribunal must resist imposing its own preferences and should allow the Secretary-General a margin of appreciation, all administrative decisions are nonetheless required to be lawful, reasonable and procedurally fair. This means that the Dispute Tribunal should objectively assess the basis, purpose and effects of any relevant administrative decision. When the Tribunal finds a disciplinary sanction to be unlawful, it has the power to modify it by setting a different one. When the case concerns the termination of the Applicant’s appointment, the Tribunal is bound, pursuant to art. 10.5(a) of its Statute, to set an amount that the Respondent may elect to pay as an alternative to rescission or specific performance.