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UNDT/2021/149

UNDT/2021/149, DANTAS

UNAT Held or UNDT Pronouncements

The Applicant was sanctioned for: (a) misuse of UNICEF’s ICT resources and (b) harassment and abuse of authority in relation to her treatment of some vendor employees. Whether the facts on which the disciplinary measure was based have been established Since the Applicant does not dispute the underlying facts of the first charge (access of former personnel's ICT resources without authorization), the Tribunal finds that these facts have been established to the required standard. Regarding the second charge, the Tribunal finds that the evidence establishes the following facts: a. The Applicant asked vendor employees to buy food for her and prepare salads and “green juice” for her, which were not within their official duties. The Applicant does not dispute this fact; b. The Applicant asked vendor employees to bring her water or coffee almost every day and occasionally returned the coffee telling them it was not hot enough. The Applicant does not dispute this fact. Other staff members considered this behaviour as the Applicant’s treating them as “personal servants” or making “excessive” demands to them; c. The Applicant publicly criticized vendor employees for their work. The Applicant admits that she drew a finger over a surface and told Ms. AP that it was dirty. The Youth & Adolescent Development Officer witnessed that the Applicant told Ms. RL that some things were not clean and also told her not to use a certain cleaning product as she did not like its smell. The Education Officer witnessed that the Applicant called Ms. RS “lazy” which made Ms. RS cry; d. The Applicant was disrespectful toward Ms. AP, Ms. RL and Ms. RS. This fact is corroborated by the Applicant’s own admission, as well as the testimonies of several witnesses. The Applicant herself admitted that she was rude to Ms. AP once, for which she apologized the following day. The Education Officer witnessed that the Applicant’s remarks made Ms. RS cry. The Field Assistant witnessed, on separate occasions, Ms. AP and Ms. RS crying because of the Applicant. The then Chief of MFO received several complaints from Ms. RS and Ms. RL that the Applicant was being disrespectful and humiliating to them. Ms. AP complained to the Youth & Adolescent Development Officer that the Applicant was disrespectful toward her; e. The Applicant grabbed Ms. AP by the arm during a conversation concerning a disagreement over her duties. While the Applicant denies this allegation, Ms. AP’s statement is corroborated by Ms. RS and as shown above, their statements were overall corroborated by other witnesses’ testimonies and found to be truthful and credible. There is no evidence that questions the veracity of their statements with regards to this incident. Whether the established facts legally amount to misconduct The Applicant's conduct violated the applicable law as she accessed ICT resources assigned to Ms. RS without authorization. The Applicant’s conduct further violates staff regulation 1.2(q) and the Standards of Conduct for the International Civil Service, which require staff members to use assets of the Organization only for official and authorized purposes, and it fell short of the standards of conduct required of her as an international civil servant in violation of staff regulation 1.2(b). The Applicant’s conduct toward three vendor employees over an extended period of time was unwelcome and could be reasonably perceived as causing offense or humiliation, thereby constituting harassment. Therefore, the Applicant’s conduct amounts to misconduct in violation of UNICEF’s Executive Directive and staff rule 1.2(f). Whether the disciplinary measure applied was proportionate to the offence The Administration acted within the bounds of its discretion in finding that the Applicant’s misconduct was serious in nature. She engaged in multiple conducts constituting harassment and abuse of authority over an extended period of time repeatedly toward three vendor employees under her supervision. Further, especially considering that the Applicant was the ICT focal point of the office, her unauthorized use of ICT resources of the Organization was also serious in nature. The Administration acted within its discretion in considering several aggravating and mitigating factors. The Applicant claims that the Administration failed to consider the impact of the Applicant’s medical condition as part of the case and the sanction’s impact on her career considering that she is due to retire in three years, but the Tribunal notes that the Administration considered her medical conditions and the sanction’s impact on her livelihood. Moreover, having reviewed the compendium of the practice of the Secretary-General in disciplinary matters, the Tribunal finds that the imposed sanction is in line with the past practice of the Organization in matters of comparable misconduct. In sum, considering the nature and gravity of the Applicant’s misconduct, aggravating and mitigating circumstances that the Administration took into account, as well as the past practice of the Organization in matters of comparable misconduct, the Tribunal finds that the imposed disciplinary and administrative measures were adequate in light of the Administration’s scope of discretion in this matter. Whether the staff member’s due process rights have been respected The Applicant does not make any submission that her due process rights were not respected. The Tribunal notes that the Applicant was notified of the formal allegations in the charge letter, was given the opportunity to respond to those allegations, and was informed of the right to seek the assistance of counsel in her defence. Therefore, the Tribunal is satisfied that the Applicant’s due process rights were respected in this case. In light of the above, the Tribunal upholds the disciplinary and administrative measures imposed on the Applicant.

Decision Contested or Judgment/Order Appealed

The decision to impose on the Applicant the disciplinary measures of (a) a written censure, (b) with a loss of 10 steps in grade, and (c) deferment, for three years, of eligibility for consideration for promotion and the administrative measure of removal of her supervisory roles for a period of three years, during which time she would be required to enroll in appropriate training courses

Legal Principle(s)

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. 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”. The Appeals Tribunal held that “the Secretary-General also has the discretion to weigh aggravating and mitigating circumstances when deciding upon the appropriate sanction to impose”. The Appeals Tribunal has further stated, “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”. The Appeals Tribunal further explains that this means that the Dispute Tribunal should “objectively assess the basis, purpose and effects of any relevant administrative decision”.

Outcome
Dismissed on merits
Outcome Extra Text

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