UNDT/2021/079, Gelsei
Regarding the Respondent’s claim that the Applicant cannot challenge the managerial action imposed on him for failing to request a management evaluation, the Tribunal found that the challenged managerial action is a non-disciplinary measure imposed following the completion of a disciplinary process and therefore the Applicant can challenge it, along with disciplinary measures, without requesting a management evaluation under staff rule 11.2(b). Regarding the question of whether the facts on which the disciplinary measure was based were established, the Tribunal found that the facts that the Applicant sent three Facebook messages of sexual nature and he shared a hotel room with a complainant were undisputed and established. However, the Tribunal found that it is not established by clear and convincing evidence that the Applicant commented on the physical appearance of a female colleague given the differing testimonies of witnesses. The Tribunal found that the established facts amount to misconduct in violation of the relevant legal framework that requires staff members to uphold the highest standards of efficiency, competence and integrity and conduct themselves at all times in a manner befitting their status as international civil servants. Considering the nature and gravity of the Applicant’s misconduct as well as aggravating and mitigating circumstances, the Tribunal found that the imposed measures were adequate and there is no basis to interfere with the Administration’s exercise of discretion in this matter. The Applicant did not make any submission that his due process rights were not respected and the Tribunal found that his due process rights were respected in this case.
The decision to impose the disciplinary measures of loss of three steps and deferment, for a period of four years, of eligibility for consideration for promotion, as well as a “managerial action” to provide him with training and coaching in matters related to professional conduct.
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. A very basic tenet of due process in a disciplinary case is that each of the relevant facts and allegations of misconduct must be presented to the accused person in such manner that s/he can easily understand them and is thereby afforded a fair and just opportunity to defend herself/himself. If not, the Administration cannot subsequently sanction a staff member against the backdrop of any such fact and/or allegation. By the same token, the Respondent cannot rely on allegations not formally presented to the Applicant during the disciplinary process to justify the sanction during litigation. The principle of proportionality in a disciplinary matter is set forth in the staff rule 10.3(b), which provides that “[a]ny disciplinary measure imposed on a staff member shall be proportionate to the nature and gravity of his or her 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. But 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.