UNDT/2022/062, Applicant
In sum, considering the nature and gravity of the Applicant’s misconduct, 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.
The Applicant contests the decision to impose on her a disciplinary sanction of separation from service, with compensation in lieu of notice, and with termination indemnity.
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 (see, for example, Abu Hamda 2010- UNAT-022, Haniya 2010-UNAT-024, Portillo Moya 2015-UNAT-523, Wishah 2015-UNAT537, Turkey 2019-UNAT-955, Ladu 2019-UNAT-956, Nyawa 2020-UNAT-1024). 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 (see, for instance, Molari 2011-UNAT-164, and Ibrahim 2017-UNAT-776).
In the present case, the action was deliberate and fraudulent, and the staff member concealed the misconduct. Thus, the Tribunal finds that the Administration acted within the bounds of its discretion in finding that the Applicant’s misconduct was serious in nature. Her actions, submitting exam responses drafted by a third party to the Organization, falsely representing it was her own work, demonstrated a lack of integrity and disregard for the sanctity of the recruitment process. The Applicant’s actions further violated the relationship of trust necessary for a continued employment relationship.