UNDT/2023/066, Williams
The Administration has established that there is clear and convincing evidence that the Applicant engaged in a conflict of interest in procurement processes and that he misused UNDP property.
Under relevant rules and regulations, the Applicant clearly had an obligation to disclose fully and accurately his personal connection with Prime Options and St. Paul’s, which were grounds to support a conflict of interest, and to recuse himself from any involvement in the procurement processes involving those two vendors. However, neither did the Applicant disclose the actual or possible conflicts of interest, nor did he take any steps to recuse himself. Instead, he was actively involved in multiple procurement processes of UNDP Sierra Leone involving the vendors at issue and for a lengthy period. By doing so, the Applicant violated staff regulation 1.2(m), staff rule 1.2(q), para. 7 of the 2016 UNDP Procurement Ethics, Fraud and Corrupt Practices, and para. 23 of the Standards of Conduct for the International Civil Service. Moreover, by misusing his UNDP computer, the Applicant clearly breached staff regulation 1.2(q) and para. 25 of the Standards of Conduct for the International Civil Service. As such, his actions in this respect constitute misconduct.
In determining the appropriate sanction, the Administration duly considered the nature and gravity of the Applicant’s misconduct as well as all aggravating and mitigating factors. There is no legal basis to require the Organization to consider the delay in the investigation and disciplinary proceedings as a mitigating factor in determining the appropriate level of sanction. There is no merit in the Applicant’s submissions that the Administration misrepresented the contracts’ amounts attributable to him and unfairly imputed gravity to his actions.
The time taken to conclude the investigation and disciplinary proceedings in the present case, notwithstanding the complexity of the case and the impact of the Covid-19 pandemic, amounts to an undue delay. Without a doubt, an undue and unjustifiable delay in the investigation and disciplinary proceedings is a violation of the Applicant’s due process rights.
However, not every violation of an applicant’s rights would render the disciplinary sanction unlawful. The Applicant failed to demonstrate how the undue delay negatively impacted the outcome of the investigation and disciplinary proceedings. Moreover, the above-mentioned procedural irregularity is of no consequence given the kind and amount of evidence proving the Applicant’s misconduct. Therefore, the undue delay in this case does not render the contested decision invalid or unlawful because the misconduct that was factually established is serious enough on its own to support the disciplinary sanction at issue.
Having upheld the disciplinary measure, the Tribunal rejects the Applicant’s request for its rescission. Under the totality of the circumstances presented in this case, the Tribunal does not consider the undue delay to have financially prejudiced the Applicant. Instead, as it was the case in Nasrallah, the excessive delay worked in the Applicant’s favour, permitting him to benefit from several years of further service, with full salary, and delaying his termination (see, e.g., Nasrallah 2013- UNAT-310, para 27). However regrettable the delay at issue might be for the Applicant, absent a causal link between it and the alleged damages, the undue delay does not have the effect of entitling him to any compensation for moral damage. Accordingly, the Tribunal rejects the Applicant’s claim for the award of compensation for harm caused by undue delay.
By application filed on 8 April 2022, 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 indemnities, for conflict of interest in procurement processes and misuse of UNDP property.
In determining whether the standard of proof has been met, the Tribunal “is not allowed to investigate facts on which the disciplinary sanction has not been based and may not substitute its own judgment for that of the Secretary General”. Thus, it will “only examine whether there is sufficient evidence for the facts on which the disciplinary sanction was based” (see Nadasan 2019-UNAT- 918, para. 40).
“[T]he matter of the degree of the sanction is usually reserved for the Administration, which has discretion to impose the measure that it considers adequate to the circumstances of the case and for the actions and conduct of the staff member involved.” As such, it “will only interfere and rescind or modify a sanction imposed by the Administration where the sanction imposed is blatantly illegal, arbitrary, adopted beyond the limits stated by the respective norms, excessive, abusive, discriminatory or absurd in its severity” (see, e.g., Iram 2023-UNAT-1340, para. 86; Appellant 2022-UNAT-1216, para. 45).
Moreover, “due deference must be shown to the Secretary-General’s decision on sanction because Article 101.3 of the United Nations Charter requires the Secretary-General to hold staff members to the highest standards of integrity and he is accountable to the Member States of the United Nations in this regard” (see, e.g., Beda 2022-UNAT-1260, para. 57).
A decision on the appropriate sanction for misconduct “involves a value-judgment and the consideration of a range of factors”. “What factors are relevant considerations will necessarily depend on the circumstances and nature of the misconduct” (see Kennedy 2021-UNAT-1184, para. 69). The Secretary-General “has the discretion to weigh aggravating and mitigating circumstances when deciding upon the appropriate sanction to impose” (see, e.g., Nyawa 2020- UNAT-1024, para. 89; Ladu 2019- UNAT-956, para. 40).
“Decisions on disciplinary matters, particularly relating to allegations of serious misconduct, must be taken within a reasonable time” (see Mokbel UNDT/2012/061, para. 31). “It is the responsibility of the Organization to conduct disciplinary matters in a timely manner to avoid a breach of the staff member’s due process rights” (see Austin UNDT/2013/080, para. 40).
Only substantial procedural irregularities during the investigation and disciplinary proceedings can render a disciplinary sanction unlawful (see, e.g., Abu Osba 2020 UNAT-1061, para. 66; Muindi 2017-UNAT-782). The onus is on an applicant to provide proof of the lack of due process and how it negatively impacted the outcome of the investigation and/or the disciplinary process (see Pappachan UNDT/2019/118 Corr.1, para 78).
Art. 10.5(b) of its Statute requires that harm be supported by evidence. Specifically, the Appeals Tribunal has consistently held that “it 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).
For a delay to be compensated, “the staff member’s due process rights must have been violated by the delay and the staff member must have been harmed or prejudiced by the violation of his or her due process rights” (see Jarbou 2013-UNAT-292, para. 46). As such, a staff member is entitled to compensation for an undue delay only where he or she has suffered damage as a result of it (see, e.g., Gnassou 2018-UNAT-865, para. 24).