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The initial fact-finding investigation was fundamentally flawed, unreliable and a sham. The failure to conduct a proper investigation but to resort to arm-chair analysis and conclusions based on the unreliable initial fact-finding investigation was not only useless but constituted a violation of the provisions of ST/Al/371 and the Applicant's due process rights. The Preliminary Investigation Report is characterized by a lack of direct evidence from the alleged victims and a heavy reliance on second hand evidence made by third party witnesses. The IGO/Investigation Unit failed to establish...

UNDT ordered the Respondent to (i) remove adverse material from the Organization’s files, (ii) send to the Member States that received the summary a copy of the Judgment and explanatory statement, (iii) pay monetary compensation in the amount of USD60,000 for non-pecuniary harm, including emotional distress and damage caused to the Applicant’s reputation. The UNDT rejected the Applicant’s claims for direct economic loss.

Having observed the demeanour of the witnesses, examined and analyzed the evidence provided by the witnesses in support of the charge against the Applicant, the Tribunal finds the evidence credible, truthful and properly acted upon. The testimonies relied upon by the Respondent when imposing the disciplinary sanction against the Applicant are substantiated, corroborated and truthful. The evidence relied upon by the Respondent in this case sufficiently supports the charge against the Applicant of improperly soliciting and receiving monies from local citizens in exchange for their initial...

The Tribunal finds that the facts on which the disciplinary measures are based were established. Judicial review of disciplinary sanctions (1): As the Applicant challenges the disciplinary measures on the sole ground that he did not commit the purported actions, there are no grounds for the Tribunal, once it has found that the facts are established, to consider whether these facts legally amount to misconduct and whether the sanctions imposed on the Applicant were proportionate. Judicial review of disciplinary sanctions (2): The circumstance that an investigation into misconduct might have...

The Tribunal considered that the Administration had erred in finding that the Applicant’s complaint did not provide sufficient grounds to warrant a formal fact-finding investigation. It awarded him USD10,000 for the moral injury he had suffered because of the way in which the matter was dealt with by the Administration. Receivability ratione materiae: The Tribunal has jurisdiction to review the Administration’s actions and omissions following a request for investigation submitted pursuant to ST/SGB/2008/5. Scope of ST/SGB/2008/5: Disagreements on work performance or on other work-related...

The Tribunal raises on its own motion the question of the receivability ratione materiae, namely whether the OIOS decision was an appealable administrative decision. On the merits, it finds that the OIOS decision is lawful. Tribunal’s obligation to raise on its own motion issues related to its competence: Before ruling on the legality of a decision, the Tribunal must examine on its own motion—that is, even if the issue was not raised by the parties—whether it is competent, pursuant to its Statute, to hear and pass judgment on an application, including whether the contested decision is an...

The UNDT found that, given the burden of proof on the Administration to establish by “clear and convincing evidence” that there is no retaliation pursuant to sec. 2.2 of ST/SGB/2005/21, and given some of the unresolved questions arising from the OIOS investigation report and its annexes, any reasonable reviewer would have examined the annexes, which the Ethics Office did not. Nor did the Ethics Office sent the report back to OIOS for further investigations and/or clarification. Since the Ethics Office did neither, the Respondent was found liable for the Ethics Office’s failures and/or...

Judicial review in disciplinary matters: In reviewing disciplinary matters, where the facts are established and undisputed, the Tribunal is to examine whether the facts in question constitute misconduct and whether the sanction imposed is proportionate to the misconduct. In this regard, the Tribunal may not intervene in the exercise of the Secretary-General’s discretionary authority, except in cases of obvious absurdity or flagrant arbitrariness.

The UNDT found that the Respondent had failed to fully comply with his obligations under ST/SGB/2008/5 with respect to the Applicant’s complaints and that the Respondent had violated the Applicant’s rights by not promptly providing her with a summary of findings and conclusions and by not investigating allegations of misconduct that impacted on her. Action to be taken under sec 5.14 of ST/SGB/2008/5: Depending on the circumstances of the case, section 5.14 may have two elements that must be satisfied by the Organization. The first component of section 5.14 is the review and assessment of the...

The Administration, having reviewed the OIOS report, had reason to believe that the Applicant may have engaged in unsatisfactory conduct for which disciplinary measures may be imposed. The discretion was exercised judiciously by the responsible officers after review of the OIOS Investigation Report. The findings of the ASG/OHRM were those of an objective observer who had scrutinized the entire dossier and made conclusions on the basis of the evidence before him. There was no procedural irregularity on the part of the Organization as there was full compliance with ST/AI/371. Where an Applicant...