UNAT Held or UNDT Pronouncements
The UNAT held that the UNDT correctly applied the judicial review tests under Article 2(1)(b) of its Statute. It found that the facts of misconduct were established by clear and convincing evidence, including direct testimony from refugees, corroborating documentary evidence, and hearsay, and that the former staff member had solicited bribes from refugees on multiple occasions between 2010 and 2019 in exchange for assistance with resettlement and other UNHCR services. It held that the established facts legally amounted to serious misconduct and that the sanction of dismissal was proportionate to the gravity of the offence. The UNAT emphasized that due deference must be shown to the Secretary-General’s discretion in disciplinary matters under Article 101(3) of the UN Charter.
The UNAT also found that the former staff member’s due process rights were respected throughout the investigation and disciplinary process. It rejected claims of procedural flaws, including the use of anonymous witness statements, noting that anonymity was justified for witness protection and that these statements were corroborated through other means, such as documentary evidence and additional testimony.
Finally, the UNAT dismissed the appeal and affirmed Judgment No. UNDT/2024/106.
Decision Contested or Judgment/Order Appealed
A former staff member of the Office of the United Nations High Commissioner for Refugees (UNHCR) contested the decision of the Administration to impose on her the disciplinary measure of dismissal for soliciting bribes from refugees between 2010 and 2019.
In its Judgment No. UNDT/2024/106, the UNDT dismissed the former staff member’s application, finding that: the facts of misconduct were established by clear and convincing evidence, the conduct constituted serious misconduct, the sanction of dismissal was proportionate, and the investigation and disciplinary process complied with due process requirements.
Former staff member appealed.
Legal Principle(s)
The Administration bears the burden of establishing that the alleged misconduct for which a disciplinary measure has been taken against a staff member occurred. Where termination is a possible outcome, such misconduct must be established by clear and convincing evidence, which means that the truth of the facts asserted is highly probable.
The issue of the degree or proportionality of a sanction is usually reserved for the Administration, which has the discretion to impose the measure that it considers adequate in the circumstances of the case and for the actions and conduct of the staff member involved. This appears as a natural consequence of the scope of administrative hierarchy and the power vested in the competent authority. It is the Administration that carries out the administrative activity and procedure and deals with the staff members.
The principle of proportionality relates to the nature and gravity of staff members’ misconduct vis-à -vis the Administration’s action. The essential elements of proportionality are therefore balance, necessity and suitability.
Due deference must be shown to the Secretary-General’s decisions on sanctions because Article 101(3) of the United Nations Charter requires the Secretary-General as head of the Administration to hold staff members to the highest standards of integrity as he is accountable to the Member States of the United Nations in this regard.
In reviewing due process violations in disciplinary proceedings, only substantial procedural irregularities can render a disciplinary sanction unlawful.