UNDT/2022/059, Kenani
On the due process prong, the Tribunal concluded that the alleged failures and shortcomings in the investigation process did not prejudice the Applicant’s case. Accordingly, the Tribunal held that the Applicant’s due process rights were guaranteed. On whether the facts were established by clear and convincing evidence, the Tribunal found that the Applicant had discussed an amended procurement bid to enable LL to be awarded the procurement contract; that, as a result, the bid was fraudulently amended and with the Applicant’s acquiescence. Thus, the Tribunal held that the Respondent had substantiated with clear and convincing evidence the factual basis of the contested decision. Regarding misconduct, the Tribunal established that the Applicant had acted with knowledge of the context of the procurement process in order to give LL an undue advantage. Accordingly, the Tribunal found that the Applicant’s acts constituted a misconduct, in violation of the applicable rules. On whether the sanction was proportionate to the offence, the Tribunal held that the Respondent had appropriately identified the relevant factors and meted out a proportional measure.
The Applicant contested a disciplinary measure of separation from service with compensation in lieu of notice and without termination indemnity, in accordance with staff rules 10.1(a) and 10.2(a)viii).
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 staff member’s due process rights were guaranteed during the entire proceeding. ii.
Whether the facts were established by clear and convincing evidence; iii.
Whether facts amount to misconduct; and iv.
Whether the sanction is proportionate to the gravity of the offence.