UNAT Held or UNDT Pronouncements
The UNAT held that the UNDT did not err in finding the extensions of administrative leave with pay lawful, as the Administration reasonably assessed the risk to workplace harmony given the appellant’s senior role.
The UNAT agreed that the refusals to complete ePAS evaluations and to approve a subordinate’s workplan and telecommuting request constituted insubordination under Staff Rule 1.2(a), which requires compliance with instructions properly issued by supervisors. It clarified that staff must follow instructions even if they believe them unlawful, unless criminal, and that “properly issued” refers to formal authority and channels.
The UNAT also upheld the finding that the former staff member’s sharing of internal criticisms about OSAA with Member States breached Staff Regulation 1.2(i). However, it found error in characterizing the conduct as using his office to prejudice other staff under Staff Regulation 1.2(g).
The UNAT held that the former staff member committed serious misconduct by halting the professional entitlements of other staff members in his branch of OSAA, hence jeopardizing the work of OSAA and breaching the principle of continuity of service. The UNAT thus found that separation from service was appropriate. However, the UNAT considered that the denial of the entirety of his termination indemnity was a disproportionate sanction.
Considering mitigating circumstances and mischaracterization of certain misconduct, the UNAT modified the sanction from separation without termination indemnity to separation with compensation in lieu of notice and termination indemnity subject to the ceiling in paragraph (c) of Annex III of the Staff Regulations and Rules.
The UNAT granted the appeal in part and modified Judgment No. UNDT/2024/086.
Decision Contested or Judgment/Order Appealed
A former staff member of the Office of the Special Adviser on Africa (OSAA) contested the Administration’s decisions to place him on administrative leave with pay (ALWP) and to extend this status three times, and to impose the disciplinary measure of separation from service with compensation in lieu of notice and without termination indemnity for alleged insubordination and creating a hostile work environment.
麻豆传媒 Dispute Tribunal (UNDT), in Judgment No. UNDT/2024/086, dismissed the application on the merits. The UNDT held that the extensions of ALWP were lawful given the risk to workplace harmony and supervisory functions, and found that the staff member’s refusals to complete performance evaluations and to engage with a subordinate constituted misconduct. The UNDT concluded that the disciplinary sanction was proportionate and that due process rights were respected throughout the investigation and disciplinary process.
Former staff member appealed.
Legal Principle(s)
Even if a staff member believes that an instruction issued by his or her supervisor is unlawful, he or she must comply with it (unless the instruction constitutes a criminal offence), without prejudice to his or her duty to report such incident or to challenge such instruction through the Organization’s established mechanisms. Any other approach would undermine the line of authority, halt the continuous functioning of the Organization, and jeopardize its operations.
There is no requirement that the instructions of the Secretary-General or those of supervisors be reached through consensus or mutual agreement.
The test for proportionality of a sanction depends on the circumstances. The UNAT must be satisfied that the Administration properly considered all relevant factors when imposing the challenged disciplinary measure, including the seriousness of the offence, the length of service, the disciplinary record of the employee, the attitude of the employee and his past conduct, the context of the violation and employer consistency.