UNDT/2023/124, Arnold
The undisputed facts are unambiguous and leave little room for different interpretations. An apology does not invalidate or undo the misconduct. The fact that the Applicant was not made aware of the negative impact of her practice has no relevance for the factual determination. As such, the Administration has established the facts underlying the disciplinary measure in question by preponderance of evidence.
The Applicant using expletives towards her subordinates and widely addressing her colleagues by nicknames in the workplace were compounded by her ignoring personal and professional boundaries by gifting a sex toy to one of her subordinates. These actions, taken together, cause concern to the Organization and undermine its confidence placed in the Applicant as a D-1 level senior manager. It is irrelevant whether the Applicant’s conduct caused offence to a particular individual. By engaging in the actions in question, the Applicant violated staff regulations 1.2(a) and 1.2(f) as well as sec. 42 of the ICSC Standards of Conduct for the International Civil Service, and contravened the standards expected of a senior leader reflected therein. As such, the established facts legally amount to misconduct.
Having weighed all factors involved, the Tribunal cannot but conclude that the written censure was neither unlawful nor arbitrary, and fell within the range of reasonable disciplinary options.
The alleged irregularties are of no consequence on the factual determination.
The Applicant contests the decision to impose on her the disciplinary measure of written censure, in accordance with staff rule 10.2(a)(i), together with the managerial action of managerial coaching for one year.
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”. (see Nadasan 2019-UNAT-918, para. 40).
The judicial review of decisions of whether misconduct has been established dictates that due deference be given to the Secretary-General in the exercise of its rule-making discretion. “The Administration is best placed to understand the nature of the work, the circumstances of the work environment and what rules are warranted by its operational requirements” (see AAD 2022-UNAT-1267, para. 62; Nadasan, para. 41).
The Tribunal “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).
Not every violation of an applicant’s rights would render the disciplinary sanction unlawful. “[O]nly substantial procedural irregularities will render a disciplinary measure unlawful” (see Sall 2018-UNAT-889, para. 33)