UNAT Held or UNDT Pronouncements
The UNAT held that the UNDT erred in concluding that the staff member’s actions did not constitute misconduct. The UNAT found that it had been established, by a preponderance of the evidence, that the staff member had failed to cooperate with an investigation conducted by the Office of Internal Oversight Services (OIOS), which concerned another staff member under investigation for misrepresenting his place of accommodation.
It found that the staff member had deliberately withheld information and provided generic, vague, and misleading responses during his initial OIOS interview regarding the other staff member’s place of residence, despite knowing the actual address where the individual was residing and having ample opportunity to consult his records. It concluded that the delayed disclosure of this information, only after he became the subject of an OIOS investigation and was confronted with contradictory evidence, did not indicate a failure of memory but rather a deliberate withholding of information.
The UNAT further held that, in taking its decision, the UNDT considered irrelevant factors, such as the fact that the staff member had performed his duties under difficult circumstances.
The UNAT found that the staff member’s due process rights were respected.
Finally, the UNAT concluded that the sanction imposed was rationally connected to the misconduct and proportionate to the gravity of the offence.
The UNAT granted the appeal and reversed Judgment No. UNDT/2024/090.
Decision Contested or Judgment/Order Appealed
A staff member of the United Nations Interim Security Force for Abyei (UNISFA) contested the decision of the Administration to impose on him the disciplinary measures of written censure and loss of two steps in grade for failure to cooperate with an investigation.
In its Judgment No. UNDT/2024/090, the UNDT granted the staff member’s application and rescinded the contested decision.
The Secretary-General appealed.
Legal Principle(s)
Staff members have the obligation to cooperate with duly authorized investigations and to report any breach of the Organization’s regulations and rules to the officials whose responsibility is to take appropriate action. Accordingly, a staff member’s failure to cooperate with such investigations may amount to misconduct.
A staff member cannot invoke past service or personal hardship as a justification for withholding information in a disciplinary investigation, as such reasoning would undermine the impartiality and effectiveness of internal oversight mechanisms.
The staff member bears the burden of proving that a decision was arbitrary or tainted by improper motive, unless the Administration fails to disclose its reasons, in which case the burden shifts to the Administration.
The Administration enjoys broad discretion in determining the appropriate disciplinary measure. Judicial review is warranted only where the sanction is blatantly illegal, arbitrary, excessive, abusive, discriminatory, or absurd in its severity. Even severe sanctions may be upheld if they are rationally connected to the misconduct and consistent with administrative practice. The UNAT will not substitute its own judgment for that of the Secretary-General where the latter has exercised his discretion reasonably and in accordance with the principles of equity and fairness.