Assault (verbal and physical)

UNAT considered an appeal by Mr. Loubani. UNAT held that while a preliminary assessment [regarding potential evidence by witnesses nominated by Mr. Loubani to be interviewed] should have been made by the investigators, this was done by UNRWA DT, and the evidence found to be so inadequate as to be safely ignored.

Mr. Loubani had an opportunity to present this evidence before UNRWA DT, so that its proper assessment meant that his due process right was allowed, albeit belatedly. It would have made no difference to the outcome had the investigators done so.  The investigators would have reached...

The UNAT held that the UNDT did not err in concluding that there was clear and convincing evidence that the Appellant physically assaulted another staff member and that the disciplinary measure of separation from service, with compensation in lieu of notice and without termination indemnity, was proportionate to the nature and gravity of the Appellant’s misconduct.  Importantly, the Appellant did not establish a degree of provocation that mitigated her retaliation which was also excessive and beyond the bounds of any permissible defense in the altercation.

The findings of the UNDT that the...

The UNAT held that the Dispute Tribunal correctly reasoned that under the UNFPA Disciplinary Framework, the assessment of the facts of misconduct is not exclusive to OAIS, but that the Director of the Department of Human Resources (Director/DHR) must also analyze the evidence, and such analysis could lead DHR to a different conclusion than that of OAIS. Accordingly, in this case, the UNAT found that the UNFPA Administration had the authority or locus standi to proceed with a disciplinary process even in the absence of a finding of misconduct by OAIS. The UNAT further held that the UNFPA...

The burden of proving the provenance and authenticity of the footage is on the Respondent. The Tribunal found that the challenge as to the evidentiary value of the video can properly be dismissed, given the type of document (a video file), its content (a continuous show of people interacting with no discrepancies) and the comments on it by the Applicant (as mentioned). The Tribunal found that a forensic examination of the files was not necessary and that the anonymity of the sources did not undermine its clear and objective content. In this case, the Applicant was not simply careless to have...

UNAT considered an appeal by the Secretary-General against judgment No. UNDT/2012/159; an appeal by the “Applicant” (anonymity granted) against judgment No. UNDT/2013/079; and a cross-appeal by the Secretary-General of judgment No. UNDT/2013/079. On receivability, UNAT considered the Secretary-General’s case that UNDT erred on the issue of receivability as the non-disciplinary issues contested by the Applicant were never submitted for management evaluation. UNAT held that UNDT, in deciding that the non-disciplinary issues had been submitted for management evaluation, erred in law and in fact...

As a preliminary issue, UNAT held that UNRWA DT did not follow the proper procedure when it allowed the Respondent to participate in the proceedings without a formal request for waiver of time limit for filing its answer and taking part in the trial. UNAT held that another significant irregularity took place during the proceedings before UNRWA DT, in light of which UNAT was compelled to annul the judgment and remand the case for a de novo consideration by a different UNRWA DT Judge, namely that UNRWA DT committed an error in procedure when it denied the Appellant’s request for a copy of the...

UNAT considered an appeal by the Secretary-General. UNAT held that UNDT’s conclusion, that the assault committed was not misconduct and that the Organisation’s jurisdictional competence did not extend to the physical assault of a non-UN staff member even where the assault is perpetrated by a staff member, was based on reasoning which was unsupported by law or the facts. UNAT held that, not only the issue had not been raised in the case presented to UNDT, but such a proposition had also no foundation in the staff regulations, staff rules, administrative instructions, or jurisprudence. UNAT held...

UNAT considered an appeal by the Commissioner-General. UNAT held that UNRWA DT set out the correct legal framework, but thereafter erroneously reviewed the evidence and interfered with the administrative discretion, since UNRWA had established the misconduct by clear and convincing evidence. UNAT held that UNRWA DT erred in law in its evaluation of the evidence and that UNRWA had established the existence of the facts warranting disciplinary sanction. UNAT held that the procedure and the subsequent decision were lawful and there was no basis to rescind the termination or to award any...

UNAT held that UNDT had violated the Appellant’s due process rights by not rendering a fully reasoned judgment and had thus committed an error in procedure such as to affect the decision of the case. UNAT held that UNDT should have examined and stated in its judgment whether there was clear and convincing evidence that the Appellant continued to fight in a severe manner causing physical injury. UNAT held that UNDT should have addressed the question as to whether there was clear and convincing evidence that the Appellant had used physical force against a driver in April 2013, especially since...

UNAT held that UNDT erred in attaching no weight to the medical evidence and in finding that the disciplinary measure imposed was based on an incorrect determination of the nature and gravity of the assault. UNAT held that there were other more important factors to consider, including the fact that the Appellant was a staff member in charge of local security and that his conduct was an abuse of authority and oppressive of a local inhabitant. UNAT recalled that the test of proportionality required a comparison between the misconduct and the sanction, not the investigation and disciplinary...