UNDT/2015/005, Akhter
UNAT Held or UNDT Pronouncements
She was charged with having “1. Engaged in the unlawful use of government-issued customs passbooks … of two international staff members to purchase duty-free items; 2. Failed to transfer the ownership of, and pay the government tax for, a duty-free car [she] purchased from an international staff member, and [having driven it] with diplomatic license plates for at least three years; 3. Falsified the signature of … the former Deputy Representative, UNHCR Office, Bangladesh, on a Bill of Sale on UNHCR letterhead dated 6 June 2010; and 4. Acted improperly when, on six occasions, [she] purchased air tickets for personal use from an UN-contracted travel agency without settling the bills in a timely manner.” When the issues first arose, the Representative of the UNHCR Office, Bangladesh, tried to establish the facts and sought information from some of the people involved, and also conducted several meetings with the Applicant. Once the case was referred to the Inspector General Office (IGO), UNHCR, the latter conducted an investigation, including an interview with the Applicant. The Applicant did not file any comments on the investigation report or the charge letter, nor did she avail herself of her right to counsel. In her submission to the Tribunal she stated that, in fact, it was not her who had forged the signature but an agent that she had contracted to regularize the situation of the car, which had remained irregular due to the failure of her former supervisor to complete the necessary paperwork. The Tribunal noted that even if the Applicant’s latest argument was indeed true, i.e., that it was an “agent” she had allegedly contracted and not herself who had forged the signature, the actions of the said agent were necessarily imputable to the Applicant. It further found that while the facts of the four charges were established, only the first three constituted misconduct. It also concluded that even taking into account mitigating circumstances, particularly the failure by the Applicant’s former supervisor, who had “sold” her the car, to complete the relevant paperwork, the sanction of separation with termination indemnities—which was not the most severe one—was proportionate to the offences. Further, the Tribunal noted that while the Representative exceeded his mandate/authority under the applicable rules by conducting a fact-finding, the IGO, in its investigation, strictly followed the rules governing the investigative procedure at UNHCR and the Applicant was given ample opportunities to contest the allegations made against her, but did not avail herself thereof. It, therefore, found that the due process requirements were satisfied and the application was dismissed.
Decision Contested or Judgment/Order Appealed
The Applicant, a former Administrative Assistant at the UNHCR Office Bangladesh, was separated from service for misconduct, with compensation in lieu of notice and termination indemnity.
Legal Principle(s)
Proportionality of sanction: When misconduct and the seriousness of the incident are established, the level of sanction imposed can only be reviewed by the Tribunal in cases of obvious absurdity or flagrant arbitrariness.Due process requirements: Failure to consult with the IGO on the appropriate procedures and due process considerations, and gathering “testimonial” and documentary evidence by means of writing to witnesses, and holding meetings with the Applicant, is not covered by the mandate/authority of a Representative under the applicable rules. However, a subsequent investigation by the IGO, in strict adherence with the relevant rules and investigative standards, may lead to the conclusion that the due process requirements were satisfied and that the interests of justice were served.