UNDT/2022/127, Nimusiima
In all the circumstances, the Respondent failed to prove by clear and convincing evidence the basis for the finding of misconduct that led to the Applicant’s dismissal. There was no clear and convincing evidence of any factual basis for a finding that the Applicant committed the actions as alleged. The Tribunal found that due process was observed. However, the failure to interview appropriate witnesses adversely detracted from the standard of proof of misconduct achieved by the Respondent. That standard did not reach the level of a clear and convincing case. Of the remedies sought by the Applicant, only her claim for recission of the dismissal decision and clearing of her record are applicable within the Organization’s Internal Justice System. Accordingly, the Applicant will be granted the relief of recission of the decision or compensation in lieu thereof pursuant to arts. 10.5(a) and (b) of the UNDT Statute. The decision to impose the sanction of dismissal from service on the Applicant was rescinded. The Tribunal held that the evident unfairness of the termination in this case jusitified payment of the maximum compensation in lieu equivalent of two years' net base salary. The Respondent was ordered to remove the sanction letter and all references to it from the Applicant's Official Status File.
The Applicant was contesting the disciplinary measure on her of dismissal from service pursuant to staff rule 10.2(a)(ix).
The role of the Tribunal in judicial review of disciplinary decisions is “to ascertain whether the facts on which the sanction is based have been established, whether the established facts qualify as misconduct, and whether the sanction is proportionate to the offence”.The Administration bears the burden of establishing that the misconduct has occurred, and in cases where termination of employment is a possible outcome the misconduct must be established by clear and convincing evidence. The clear and convincing standard of proof is codified by section 8.1(a) of UNHCR/AI/2018/18 (Misconduct and the Disciplinary Process).