UNDT/2022/030, Applicant
The case was decided by a bench of three judges. The Majority decided to dismiss the application with one Judge dissenting. On whether the facts of the case were established, the Majority concluded that the Respondent had substantiated with clear and convincing evidence the factual basis of the contested decision. Regarding misconduct, the Majority concurred that the act of forcing sexual intercourse, by the Applicant on the Complainant-(i.e., rape), amounted to sexual abuse in a grave form and, as such, constituted a serious misconduct prescribed by staff regulation 10.1(b) and staff rule 1.2(f). On whether the sanction was proportionate, the Majority recalled that sexual abuse usually attracts disciplinary measures based in separation from service. Accordingly, they concluded that the measure was not disproportionate. On the due process prong, the Applicant had raised two points. Firstly, that the reopening the investigation in his case breached a competence norm that would formally invalidate the sanctioning decision. Secondly, that the reopening of the investigation caused prejudice to his due process rights, amounting to an invalidity of the sanction. On the first point, the Majority concluded that the charges of misconduct and the sanctioning decision were issued by statutorily comptent organs. On point number two, the Majority agreed that, at a minimum, a staff member who has been investigated for misconduct is entitled to a closure, and such closure should be attained by establishing the time-limits for conclusion of the disciplinary case as well as the grounds and time-limits for re-opening. In this regard, the Majority agreed that the regulatory framework on the junction of review of the investigative dossier by the UNFPA disciplinary organ was not precise and did not confer sufficient procedural guarantees. That said, the Majority concluded that in the case at hand, the legal certainty was not infringed through a violation of a technical norm because his case was never “closed” pursuant to section 15.3 of the UNFPA Disciplinary Framework. Accordingly, the Majority found no abuse of the Applicant’s due process rights. Consequently, by a majority decision, the application was dismissed.
The Applicant contested the decision by the UNFPA Executive Director to impose on him the disciplinary measure of dismissal pursuant to staff regulation 10.1(a) and staff rules 10.1(a) and 10.2(a)(ix).
Pursuant to the jurisprudence, the role of the UNDT in disciplinary cases is to perform a judicial review of the case and assess the following elements: i. Whether the facts were established by clear and convincing evidence; ii. Whether facts amount to misconduct; iii. Whether the sanction is proportionate to the gravity of the offence; and If the staff member’s due process rights were guaranteed during the entire proceeding.