UNDT/2022/079, Jama
On the due process prong, the Tribunal concluded that the process leading to the imposition of the disciplinary measure was carried out in compliance with the UNDP Legal Framework for Addressing non-compliance with United Nations Standards of Conduct and the UNDP Office of Audit and Investigation Guidelines. 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 noted that the Applicant did not deny or even challenge the fact that the Respondent had proved that she had: i. shared sensitive and confidential information relating to recruitments on multiple occasions with a staff member who did not have a human resource function and who was not involved in the concerned recruitment; ii. showed inappropriate favouritism in the performance of her functions; and iii. used the knowledge gained from her official function to favour Mr. DH in receiving funding for learning activities. The Tribunal further found that the Applicant specifically admitted that on: i. 8 August 2018, she sent an email and an Excel attachment to DH. The attachment presented a list of over 150 service contractors including their base pay and proposed pay increases at two different levels; and ii. 6 February 2017 she shared a draft of the Learning Committee minutes with DH. Based on the above admissions, the Tribunal found that the facts on which the sanction was based had been established. Regarding misconduct, the Tribunal concluded that by sharing sensitive and confidential information relating to recruitments with a staff member who did not have a human resource function and who was not involved in the concerned recruitment, the Applicant offended staff regulation 1.2(b). Further, the Applicant offended regulation 1.2(g) when she showed inappropriate favouritism and used the knowledge gained from her official function to favour Mr. DH in receiving funding for learning activities. Accordingly, the Tribunal held that the established facts qualified as misconduct. On whether the sanction was proportionate to the offence, the Tribunal observed that considering that the misconduct represents a breach of trust that characterizes the relationship between the employer and employee, the Tribunal held that the sanction of loss of four steps and deferment, for two years, of eligibility for consideration for promotion was proportionate to the offence.
The Applicant contested the decision by the UNDP Associate Administrator to impose on her the disciplinary measure of loss of four steps in grade, from National Officer (“NO”) - A step 9 to NO-A step 5, and deferment, for two years, of eligibility for consideration for promotion, in accordance with staff rules 10.1(a) and 10.2(a)(ii) and (iv).
Pursuant to the jurisprudence of the Tribunal, 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.