2025-UNAT-1541, Mirriam Nalugya Kiingi
UNAT Held or UNDT Pronouncements
The UNAT noted that the UNDT’s findings had been based on credible evidence when it determined that the staff member’s son had contracted Covid-19; he had been treated under the supervision of her primary medical care provider; and payment had been made based on invoices from that provider reflecting the care he had provided.
The UNAT was of the view that in light of the testimony of the staff member’s witnesses, including herself and the medical professional who had treated her son, it had not been erroneous for the UNDT to conclude that the Administration had failed to establish the medical insurance fraud by clear and convincing evidence. The UNAT found that the Secretary-General had presented no evidence to support the conclusion that she had been aware of any of the details of the relationship between the medical care provider and the hospital, much less had intended to deceive the Organization.
The UNAT held that given the absence of compelling and articulated reasoning by the UNDT for awarding in-lieu compensation beyond the term of the staff member’s fixed-term contract, it had to reduce the amount to nine months and one week that remained until the expiration of her contract.
The UNAT found that the threshold of a manifest abuse of process has not been met by the Secretary-General and an award of costs was not appropriate in this case.
The UNAT granted the appeal in part and modified the UNDT Judgment.
Decision Contested or Judgment/Order Appealed
A former staff member contested a disciplinary decision to dismiss her for medical insurance fraud and to recover from her the financial loss.
In Judgment No. UNDT/2024/057, the UNDT rescinded the contested decision, set the amount of compensation in lieu of reinstatement at two years’ net base salary and set aside the recoupment from the staff member of the medical expenses that had been disbursed.
The Secretary-General appealed.
Legal Principle(s)
The function of the Appeals Tribunal is to determine if the UNDT made errors of fact, procedure, or law or exceeded (or failed to exercise) its jurisdiction. In determining whether the UNDT erred on a question of fact, the Appeals Tribunal will only interfere if the error results in a manifestly unreasonable decision.
Especially when oral testimony is involved, the UNDT is in the best position to assess witness demeanour and credibility.
In a case involving alleged fraud by a staff member, the Organization bears a heavy burden of proof. To sustain a finding of fraud, the Organization must establish each element of fraud by clear and convincing evidence showing that the commission of the fraud was highly probable.
The relevant factors in deciding credibility include: candour and demeanour; internal and external inconsistencies in the evidence; the calibre of the testimony compared to that of other witnesses testifying regarding the same events; whether the witness actually observed the events in question; and the quality, integrity and independence of the witness’ recall of the events.
The purpose of compensation in lieu of reinstatement, as permitted by the UNDT Statute, is to place the staff member in the same position in which they would have been, absent the contractual violation.
A fixed-term contract, as a matter of law, carries no expectancy of renewal, even for a staff member with an impeccable record.
While compensation in lieu of reinstatement is to be decided on a case-specific basis, awarding such compensation beyond the term of a fixed-term contract is by its nature unreasonable.