UNDT/2020/062, Gusarova
The information in the documents on record pointed to purely work-related disagreements between the Applicant and her supervisor. The Tribunal rejected the complaint that UNICEF’s Deputy Executive Director, Management (DED/M) did not take into consideration the facts in their entirety and misunderstood her statements when conducting the management evaluation. The Tribunal agreed with the finding that there was no evidence of abuse of authority or deliberate misrepresentation of facts by the Applicant’s supervisor. The Tribunal held that the Applicant’s complaint did not raise any impropriety issues on the part of her supervisor and agreed with the DED/M’s findings that there was no evidence of abuse of authority by the supervisor. The Tribunal found that the procedure followed by OIAI in assessing the Applicant’s allegations was proper even though the Respondent wrongly stated that she was put on a PIP when the record showed that she was not. The relevant rules allowed the Investigator to base a decision on a review of availed documents, which he did. The Tribunal found no evidence to support the Applicant’s complaints. The contested decision was based on a careful assessment of all facts and evidence. There was nothing to suggest that the factual findings were manifestly unreasonable or otherwise irrational.
The Applicant contested the management evaluation decision to uphold the decision of UNICEF’s Office of Internal Audit and Investigations (“OIAI”) to dismiss her claim of abuse of authority and harassment.
The Tribunal’s jurisdiction is confined to examining the administrative activity (act or omission) followed by the Administration after a request for investigation and to decide if it was taken in accordance with the applicable law. The Tribunal is not to conduct a de novo investigation into the complaint and will not substitute its own decision for that of the Administration. The Tribunal will only determine if the impugned decision is legal, rational, procedurally correct and proportionate, i.e., it will look into how the Administration responded to the complaint in question. The Administration has a degree of discretion as to how to conduct its review and assessment of a complaint and whether to undertake an investigation regarding all or some of the allegations. The relevant aspect of paragraph 5.14 of CF/EXD/2012-007 is not crafted in mandatory terms, meaning that the requirement for interviewing a complainant is not mandatory. An interview will only be necessary for serving the outlined purposes, “a” to “d”. Since the requirement for an interview is not mandatory, the Administration may base its decision on available information, once that information is sufficient for the investigators to arrive at an informed, reasonable and rational decision.