Termination (of appointment)

The Applicant was engaged in an unauthorized outside activity. The Applicant’s unauthorized outside activity whilst providing her personal financial gain, did not result in an actual conflict of interest as defined by the applicable rule. The investigators had an obligation, in accordance with the universal principles of natural justice, to inform the Applicant of her right to the assistance of Counsel during investigations. The doctrine of proportionality is applicable in this case to reduce the Applicant’s summary dismissal to a written censure in line with the Secretary- General’s practice...

Attempted theft: In the instant case, the Applicant’s counsel cites the 23 June 2011 Judgment and argued that “it follows that whereas the offence of an attempt to commit an act that could amount, if completed, to misconduct is not envisaged as a sanctionable offence within the prevailing legislative framework of the United Nations, the dismissal of the Applicant must be held to have been ultra vires.” This interpretation and application of the Tribunal’s reasoning in the said judgment to this case and the Applicant’s circumstances is misconceived and misleading. This is because the offence of...

Calculation of compensation. The Tribunal will determine the amount of income the Applicant is likely to have earned but for the impugned decision (pecuniary damages) and the extent of the non-pecuniary harm caused to by the decision to terminate her. Pecuniary damages. It is necessary to consider her fitness to return to work; the likely duration of the contract she could reasonably have expected to have been given; and the amount of work she would likely have been able to perform in view of her disability during the hypothetical contract period. Duration of a hypothetical contract period. It...

The investigation against the Applicant lacked integrity and credibility. The investigator was incompetent, exhibited bias and lacked objectivity and fairness. The Investigator’s note-taker was not only allowed to conduct part of the investigation by solely administering questions to two witnesses, she was also allowed the liberty of expressing her views on how some evidence she had elicited from a witness should not change impressions earlier formed. The investigation report was biased, unreliable and unfair. The characterisation of certain facts was done in a manner intended to draw only...

Management evaluation: Pursuant to well-settled case law of the Dispute Tribunal and the Appeals Tribunal, requests for administrative review or management evaluation are mandatory first steps in the appeal process. Improper motives: The onus is on the applicant to provide sufficient evidence that the contested decision was tainted by improper motives.

Outcome: The application was rejected. The UNDT made the following findings: The preliminary fact-finding investigation was initiated properly, but was flawed, because the Applicant was not re-interviewed or given the opportunity to answer the allegations of sexual harassment in writing after the full scope of allegations became known to the investigation panel. However, these flaws did not vitiate the contested decision as they were cured in the process that followed. The findings of the fact-finding investigation report and the accompanying documents justified the decision to initiate formal...

Pleadings - A defence to a claim must say which of the allegations in the particulars of claim are admitted, which are denied and which allegations the defendant is unable to admit or deny, but requires the claimant to prove. Every allegation made in a claim should be dealt with in the defence. Where an allegation is denied, this normally implies that the defendant intends to put up a positive case to the contrary. Where the defendant denies an allegation, he must state his reasons for doing so; and if heintends to put forward a different version of events from that given by the claimant, he...

Estoppel - It was argued on behalf of the Respondent that the Applicant has waived or is estopped from enforcing his right to challenge the contested decision since at the Applicant’s request, the Administration in good faith deferred the effective date of termination of his appointment to enable him to acquire a pension benefit. Given the circumstances of this case, the Applicant had neither waived nor was he estopped from enforcing his rights to challenge the contested decision. The principles of waiver and estoppel will not apply in such a case to deny an Applicant from enforcing his legal...

The Tribunal ordered rescission of the administrative decision to separate the Applicant from service. The Tribunal awarded the Applicant compensation for the substantive and procedural irregularities occasioned him by the failure of the Administration to follow its own guidelines, rules and procedures. Ultra vires - It was not within the competence of the Mission Leadership Team of UNMISS to leave its role of implementing the new mission’s mandate in order to dabble into matters of human resource management and the transitioning and de-transitioning of staff from the old mission to the new...

Testimony of anonymous witnesses: The Tribunal held that the testimony of witnesses whom the Applicant has not had the opportunity to confront in proceedings is not inadmissible per se. However, a decision adverse to a staff member in a disciplinary case may not be based solely on this. There must be some independent evidence that can confirm the anonymous testimony, especially where the staff member has not had a chance to confront the witnesses and therefore challenge any incriminating evidence they have given against the staff member. The Tribunal also held that the requirements of due...