UNDT/2024/090, Brown
UNAT Held or UNDT Pronouncements
The Tribunal held that:
a. The facts upon which the Applicant was reproached do not amount to misconduct;
b. it was not part of the Applicant’s remit to verify where the staff members were located;
c. The issue regarding the Applicant’s factual knowledge of where the other staff member resided during the period in question was based on conjecture;
d. The Respondent had not adduced any evidence to indicate that the Applicant always and effectively knew where the other staff member was residing in each moment, or had any knowledge of that staff member's relationship with the owners of any of the premises where they met;
e. The Respondent’s erroneous speculation regarding what the Applicant should have known or should have better recalled due to his position as Security Officer was mere subjective opinion which had not been corroborated by the evidence collected;
f. The accusation referring to the Applicant's generic attitude as being deflective and evasive than to specific facts (lack of candour) did not amount to misconduct;
g. The Applicant's statements to the investigator could not be seen as misleading, objectively deceptive, nor incorrect;
h. Whether or not the Applicant was able to recall details of addresses or individual meetings with the staff member concerned long after the fact is not evidence of impropriety, and was not a basis for assuming misconduct or wrongdoing on his part; and
i. The disciplinary sanction was therefore without grounds; and was rescinded.
Decision Contested or Judgment/Order Appealed
The Applicant challenged a decision of the Under-Secretary-General for Management Strategy, Policy and Compliance to impose upon him the disciplinary measure of written censure and loss of two steps in grade for conduct which violated staff regulation 1.2(b) and staff rule 1.2(c).
The Applicant was found to have failed to cooperate with a duly authorized investigation concerning another staff member.
Legal Principle(s)
In reviewing disciplinary cases, art. 9.4 of the Tribunal’s Statute, as amended on 22 December 2023, provides that: the Dispute Tribunal shall consider the record assembled by the Secretary-General and may admit other evidence to make an assessment on whether the facts on which the disciplinary measure
was based have been established by evidence; whether the established facts legally amount to misconduct; whether the applicant’s due process rights were observed; and whether the disciplinary measure imposed was proportionate to the offence.
When judging the validity of the Secretary-General’s exercise of discretion in administrative matters, the Dispute Tribunal determines if the decision is legal, rational, procedurally correct, and proportionate. The Tribunal can consider whether relevant matters have been ignored and irrelevant matters considered, and also examine whether the decision is absurd or perverse.
It is not the role of the Dispute Tribunal to consider the correctness of the choice made by the Secretary-General amongst the various courses of action open to him or otherwise substitute its own decision for that of the Secretary-General.
The Tribunal conducts a judicial review not a merit-based review.
Judicial review is more concerned with examining how the decision-maker reached the impugned decision and not the merits of the decision-maker's decision.