UNDT/2010/053, Mmata
The charge relating to the unauthorized use of the UNON ID card to gain access to the UN premises in Nairobi was properly brought. However, before a conclusion was reached, the decision maker was required not simply to ask whether, as a question of fact, tax and duty free purchases were made by the staff member but also whether by doing so the staff member had the mens rea to abuse UN privileges and immunities or whether he genuinely believed, on reasonable grounds that he was entitled to have access to the UN Commissary. Based on the evidence, the Tribunal found that on the balance of probabilities, the Applicant did not have the intention to defraud and as such, the Respondent did not have the necessary evidential basis to prove a charge of serious misconduct within the meaning of staff rule 110.1. The Applicant was unfairly dismissed as the charge of serious misconduct was not well-founded.
The Applicant was employed with the UNICEF Kenya Country Office from 1990 to 2002 and was issued a UNON ID card. In 2003, he was reassigned to the UNICEF office in Windhoek, Namibia, but retained his UNON ID card, which he used to access the UNON premises and the UN Commissary. In September 2008, the Applicant’s UNON ID card was confiscated by UNON Security on the basis that the card was invalid. Based on the outcome of an investigation by the Office of Internal Audit, UNICEF informed the Applicant, by a letter dated 31 August 2009, that he was to be separated from service without notice for serious misconduct, namely, for abuse of UN privileges and immunities in relation to his unauthorized use of the UN Commissary. The Applicant contested the decision to separate him from service.
N/A
The Respondent is ordered to either rescind his decision and reinstate the Applicant and pay him for lost earnings or to compensate the Applicant for loss of earnings from the date of his separation to the date of the Judgment and to compensate him in the amount of two years’ net base salary.