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UNDT/2022/132

UNDT/2022/132, Applicant

UNAT Held or UNDT Pronouncements

Procedural issue: anonymity In the present case, the sensitive information regarding the Applicant’s medical history and his mental health status constitutes exceptional circumstances that warrant granting anonymity. Therefore, the Applicant’s name is anonymized in the present judgment. Scope of judicial review It is within the Tribunal’s competence to hold a hearing or look at facts that were allegedly not before the decision-maker to determine whether relevant factors have been ignored. This is fundamentally different from a de novo investigation into the facts underlying the disciplinary measure at issue. Having reviewed the parties’ submissions, the Tribunal notes that there is no real dispute on the facts underlying the disciplinary measure or whether these facts were rightfully characterized as misconduct under the Staff Regulations and Rules of the United Nations. Therefore, it is unnecessary to further examine these issues. Rather, the matters at issue are the proportionality of the sanction imposed and whether the Applicant’s due process rights were respected during the investigation and the disciplinary process. Whether the IGO was duty bound to investigate the Applicant’s medical condition Considering that part of the misconduct closely resembled behaviour resulting from the Applicant’s medical condition, the IGO should have investigated whether his medical condition could have caused or contributed to his alleged actions. Moreover, the investigation record contains sufficient indications showing the potential relevance of the Applicant’s medical condition to the conduct at issue. Accordingly, to fully discharge its duty to investigate all relevant information and evidence, both inculpatory and exculpatory, the IGO was obliged to investigate whether, and if so, to what extent, the Applicant’s medical condition could have caused or contributed to the misconduct. Whether there was any factor that could have exempted the IGO from its obligation to inquire further on the Applicant’s medical condition First, the Respondent has taken the Applicants’ statement that “the only impact [of his brain surgeries] was physical” out of context by ignoring the fact that in making it, the Applicant was responding to the IGO’s question regarding whether the injury affected his memory. Moreover, the Tribunal fails to understand why the IGO could have reasonably relied upon the statement at issue to excuse itself from the obligation to investigate all relevant information given its disregarding the Applicant’s related contemporaneous on grounds that the Applicant was not credible. Indeed, it is within the IGO’s discretion to assess the credibility of a witness and the persuasiveness of his or her evidence, such assessment must be consistent and impartial. Second, the fact that the Applicant had been declared fit to work is not sufficient to excuse the IGO from its obligation to investigate all relevant information including potential exculpatory evidence. In declaring that the Applicant is fit to work, the Medical Section essentially evaluated the Applicant’s cognitive functions while admitting that “it was difficult for [him] to cope with his condition”. The evidence on record also shows that the Medical Section possessed various medical reports from Dr. L. H. from a similar time period, showing that the Applicant had been suffering from posttraumatic stress disorder (“PTSD”) and adjustment disorder, and that his ability to control his emotions and behaviour had been weak, and that he got easily irritated showing significant signs of rage and anger. Third, there is no merit in the Respondent’s claim that the Applicant was already creating a hostile working environment and making discriminatory comments before his surgeries. The sanction letter is silent as to the timing of most of the incidents based on which the disciplinary measure was imposed. The IGO did not establish the timing of relevant incidents except for one incident. Moreover, the psychiatric note on record suggests that the Applicant’s medical condition could have caused problems in social or work settings including aggression and loss of social inhibition “before and during the operation” due to the physical and psychological trauma he went through and that “[t]he operation itself might also have some psychological consequences”. Accordingly, there was no factor that could have exempted the IGO from its obligation to inquire further on the Applicant’s medical condition upon being on notice of its possible relevance to the case. Whether the IGO properly investigated the Applicant’s medical condition First, the IGO bears the burden of fully investigating all relevant information, including whether the Applicant’s mental health issues could have had an impact on his behaviours. By arguing that the Applicant failed to timely raise the defence of mental health, the Respondent attempts to shift the burden to the Applicant and, as such, failed to respect his right to be presumed innocent under sec. 24 of UNHCR/AI/2019/15. Also, the Applicant, on several occasions, mentioned his medical condition to the IGO and the investigation record contains sufficient indications showing the potential relevance of the Applicant’s medical condition to the conduct at issue. Second, the IGO could have requested consent to have access to the Applicant’s medical files upon being on notice of their possible relevance to the case prior to concluding the investigation. Otherwise, the investigators “should advise in their reports of limitations in respect of investigations, and of any evidence that would have been relevant, but they were unable to obtain, expressing reasons” (see Asghar UNDT/2019/074, para. 39). Third, the present case is distinguishable from Ouriques, whereinthe applicant committed an act of physical assault, he was separated from service and his mental health status was considered upon receipt of the information provided. In contrast, in the present case, upon being on notice that the Applicant had two brain surgeries, that he had unresolved mental health issues when he returned to work, and that these were affecting his relationships at work, the IGO failed to pursue reasonable lines of enquiry in this respect or investigate whether the Applicant’s mental health issues could have caused, contributed, or mitigated the conduct at issue pursuant to sec.110(a) of UNHCR/AI/2019/15. Finally, given its failure to properly investigate the Applicant’s medical condition, the IGO failed in its duty to conduct a thorough investigation, to seek both inculpatory and exculpatory evidence, and maintain objectivity throughout the investigation process. The least that the IGO could have done was to seek information from the Medical Section. There is, however, no evidence that the Applicant’s medical condition was properly brought to the attention of the decision maker. Thus, the investigation procedure at issue was significantly incomplete, procedurally unfair, and unlawful. As such, solid inculpatory evidence was gathered, but it was less thorough regarding exculpatory evidence. Accordingly, the IGO failed to properly investigate the Applicant’s medical condition upon being on notice of its possible relevance to the case prior to concluding the investigation.  Whether the disciplinary measure applied is proportionate to the offence  When choosing the appropriate sanction from a set of permissible sanctions, the decision-maker must consider all relevant factors (see Kennedy 2021-UNAT-1184, para. 63). In the present case, given the IGO’s failure to properly investigate the Applicant’s medical condition, the decision-maker did not have all relevant information upon which to base the contested decision. Indeed, the Administration had no details of the nature, extent and effect of the Applicant’s brain surgeries and/or mental health issues at the time of the conduct and could therefore not assess how far he was culpable for the alleged conduct, and how far his condition should mitigate the case. This had the effect that these fundamental considerations could not be properly appreciated as exculpatory or mitigating factors. As such, the Administration could not have proper regard to the totality of relevant circumstances, including the Applicant’s medical condition, before finding misconduct and applying the sanction imposed. Therefore, all relevant factors were not properly investigated, such that the decision-maker was not in a position to adequately weigh all exculpatory or mitigating factors, notably, the Applicant’s medical condition. Such failures consequently result in a manifestly unreasonable administrative decision. Accordingly, the disciplinary measure applied in the present case was manifestly unreasonable and disproportionate to the misconduct. Conclusion on the lawfulness of the contested decision Given its findings that the IGO failed to properly investigate the Applicant’s medical condition upon being on notice of its possible relevance to the case prior to concluding the investigation, and that the disciplinary measure applied was manifestly unreasonable and disproportionate to the misconduct, the Tribunal finds that the contested decision fails to stand. Moreover, the failure to consider the Applicant’s mental health issues throughout the investigation and disciplinary proceedings seems to reveal a dereliction of the duty of care towards the Applicant as a staff member of the Organization, because his mental health condition was not properly considered before deciding on the termination of his service as the sanction to be applied to him. Consequently, the contested decision is unlawful. Whether the Applicant is entitled to any remedies As the contested decision is unlawful, it must be rescinded, and the disciplinary measure must be set aside. This implies the reinstatement of the Applicant on his post and under the same kind of contract he held at the time of his separation. Given that the decision-maker did not have all the relevant information to decide on the appropriate sanction due to the Administration’s failure to properly investigate the Applicant’s mental health condition and the impact it may have had on his behaviours, and considering that the Administration is better placed to weigh all relevant factors in determining an appropriate sanction, the Tribunal finds it appropriate to remand the Applicant’s case back to the Administration for proper treatment. In determining the amount of in-lieu compensation for persons who are recruited on a fixed-term appointment, the Tribunal “must take into account, among other things, the term of the contract and the remainder of the said term, if any, at the time of any alleged breach” (see, e.g., Bagot 2017-UNAT-718, para. 74). In the present case, the Applicant was separated from service on 30 November 2020 when his fixed-term appointment expired. Also, a fixed-term appointment does not carry any expectancy, legal or otherwise, of renewal under staff regulation 4.5(c) and staff rule 4.13(c) and expires automatically, without prior notice, on the expiration date. Considering the Respondent’s submission that “in light of the established and uncontested evidence of the Applicant’s repetitive racist, sexist and homophobic comments, reinstatement is not a possible viable solution”, it is reasonable to infer that the Applicant had no chance of renewal of his fixed-term appointment at the time of the contested decision. Accordingly, there is no basis to grant any in-lieu compensation in the present case. While it is true that the 7 September 2022 medical report does not mention any cause for the diagnosed disorders, such disorders had never been mentioned in various medical reports issued prior to the contested decision but were observed soon after the imposition of the disciplinary sanction. There is no doubt that the contested decision further deteriorated the Applicant’s psychological condition. The Tribunal thus finds a causal link between the Applicant’s moral harm and the contested decision. Accordingly, the Applicant’s diagnosed disorders merit a compensatory award. Having regard to the total circumstances of the case, the Tribunal finds it appropriate to award USD5,000 as compensation under art. 10.5(b) of its Statute.

Decision Contested or Judgment Appealed

The Applicant contests the decision to impose on him the disciplinary measure of separation from service with compensation in lieu of notice and without termination indemnity.

Legal Principle(s)

In cases of harassment and discrimination, the Tribunal is not vested with the authority to conduct a de novo investigation into the initial complaint (see, e.g., Luvai 2014-UNAT-417, para. 58; Messinger 2011-UNAT-123, para. 27). Indeed, as the Appeals Tribunal held in Sanwidi that in exercising judicial review, the role of the Dispute Tribunal is to determine if the administrative decision under challenge is reasonable and fair, legally and procedurally correct, and proportionate (see Sanwidi 2010- UNAT- 084 ). Nevertheless, the Tribunal may determine if there was a proper investigation into the allegations (see, e.g., Messinger 2011-UNAT-123, para. 27). In this regard, the Appeals Tribunal’s jurisprudence has been consistent and clear since 2010 (see, e.g., Ouriques 2017-UNAT-745, para. 14; Kennedy 2021-UNAT-1184, para. 49), establishing that the Tribunal may “consider whether relevant matters have been ignored and irrelevant matters considered, and also examine whether the decision is absurd or perverse” (see Sanwidi, para. 40). Moreover, as per the well-settled case law of the internal justice system, judicial review of a disciplinary case requires the Tribunal to consider the evidence adduced and the procedures utilized during the course of an investigation by the Administration (see, e.g., Applicant 2013-UNAT-302, para. 29). In this context, the consistent jurisprudence of the Appeals Tribunal (see, e.g., Haniya 2010-UNAT-024, para. 31; Wishah 2015-UNAT-537, para. 20; Ladu 2019-UNAT-956, para. 15; Nyawa 2020-UNAT-1024, para. 48) requires the Tribunal to ascertain in this case: a) Whether the facts on which the disciplinary measure was based have been established according to the applicable standard; b) Whether the established facts legally amount to misconduct under the Staff Regulations and Rules; c) Whether the disciplinary measure applied is proportionate to the offence, and d) Whether the Applicant’s due process rights were respected during the investigation and the disciplinary process. The UNHCR Inspector General's Office is obliged to investigate all relevant information and evidence, both inculpatory and exculpatory. All such information shall be disclosed to the subject of the investigation and to the decision-maker in line with the principles of procedural fairness and due process. Moreover, “investigators must not be biased or mislead decision-makers in respect of the findings of fact or in respect of statements of the law. They should advise in their reports of limitations in respect of investigations, and of any evidence that would have been relevant but they were unable to obtain, expressing reasons” (see Asghar UNDT/2019/074, para. 39). Indeed, considering that disciplinary measures such as dismissal and separation from service would often be based on an investigation report, the latter must be impartial, objective, factually correct and complete. To produce such an investigation report, investigators must exercise their functions and power with a high sense of accountability and responsibility, and they cannot ignore any relevant information that may have an impact on the outcome of the investigation. The matter of the degree of the sanction is usually reserved for the Administration, who has discretion to impose the measure that it considers adequate to the circumstances of the case, and to the actions and behaviour of the staff member involved” (see Portillo Moya 2015-UNAT-523, para. 19). However, “due deference does not entail uncritical acquiescence. While the Dispute Tribunal must resist imposing its own preferences and should allow the Secretary-General a margin of appreciation, all administrative decisions are nonetheless required to be lawful, reasonable and procedurally fair” (see Samandarov 2018- UNAT-859, para. 24). In this respect, staff rule 10.3(b) provides that “[a]ny disciplinary measure imposed on a staff member shall be proportionate to the nature and gravity of his or her misconduct”. Therefore, a sanction must not be “more excessive than is necessary for obtaining the desired result” (see Sanwidi, para. 39). In-lieu compensation under art.10.5(a) of the Tribunal’s Statute is “not compensatory damages based on economic loss” (see, e.g., Eissa 2014-UNAT-469, para. 27). Instead, it shall be “an economic equivalent for the loss of rescission or specific performance the Tribunal has ordered in favour of the staff member” (see, e.g., El Awar 2022-UNAT-1265, para. 73; Yavuz 2022-UNAT-1266, para. 26). Hence, “the most important factor to consider in this context is the pecuniary value of such rescission” and the “nature and degree of the irregularities committed by the Administration … are of no legal relevance for the pecuniary value of the ordered rescission” (see El-Awar, paras. 73, 74).  â€ś[I]t is not enough to demonstrate an illegality to obtain compensation: the claimant bears the burden of proof to establish the existence of negative consequences, able to be considered damages, resulting from the illegality on a cause-effect lien” and requires that “the harm be directly caused by the administrative decision in question” (see Ashour 2019-UNAT-899, para. 31; see also Kebede 2018- UNAT-874, para. 20).  â€ś[The] testimony of an applicant alone without corroboration by independent evidence … is generally not sufficient to support an award of damages” (see Ross 2019-UNAT-926, para. 57).

Outcome
Judgment entered for Applicant in full or in part

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