UNDT/2023/142, Brian Seales
The Tribunal was unpersuaded by the Applicant’s claim that his participation in the Staff Day activities was “essentially private conduct not involving [United Nations] resources” or that this was “essentially a voluntary, social event”. The requirements for integrity, probity, honesty and truthfulness under the staff regulations and staff rules are not merely “generic obligations” but are specifically intended to apply “in all matters affecting [a staff member’s] work and status”. [...] Accordingly, the Tribunal found that the established facts in this case amount to misconduct on the part of the Applicant. The Tribunal also found that the facts are established by clear and convincing evidence.
The Applicant contested the disciplinary measure of “separation from service with compensation in lieu of notice and without termination indemnity” imposed upon him.
The Appeals Tribunal has generally held that the Administration enjoys a “broad discretion in disciplinary matters; a discretion with which [the Appeals Tribunal] will not lightly interfere”. This discretion, however, is not unfettered. As the Appeals Tribunal has stated, “when judging the validity of the exercise of discretionary authority, ... the Dispute Tribunal determines if the decision is legal, rational, procedurally correct, and proportionate”.
Regarding the proportionality of the sanction, the “ultimate test, or essential enquiry, is whether the sanction is excessive in relation to the objective of staff discipline”, and when “the sanction of termination is chosen by the Administration”, the “requirement of proportionality asks whether termination is the appropriate and necessary sanction for the proven misconduct or whether some other alternative sanction will be more suitable in the circumstances”. “The question to be answered in the final analysis is whether the staff member’s conduct has led to the employment relationship (based on mutual trust and confidence) being seriously damaged so as to render its continuation intolerable”.
Given the Applicant’s 38 years of service with the Organization and the proximity of his mandatory retirement date (“thus excluding any possibility of reoccurrence” of the misconduct), the disciplinary measure of separation from service with compensation in lieu of notice, and without termination indemnity, in accordance with staff rule 10.2(a)(viii) could appear harsh. However, the Tribunal found that the sanction was not irrational, arbitrary, or otherwise excessive compared to the nature and gravity of the offence, the Applicant’s role and fiduciary duties, as well as the potential impact on the Organization’s reputation and external relations.