UNAT Held or UNDT Pronouncements
The UNAT held that the staff member's motion for the production of evidence did not meet the criteria set out in the UNAT Statute and Rules of Procedure. The UNAT found that the staff member had not demonstrated exceptional circumstances warranting the admission of the additional evidence on appeal. The UNAT noted that, moreover, the staff member had not demonstrated that any relevant fact was likely to be established with the staff member’s half-brother, Mr. SRB’s employment history sought to be produced or that it would be in the interest of justice and the efficient and expeditious resolution of the proceedings to receive the additional evidence. The UNAT found that the type of evidence in the form of a written statement from Mr. SRB sought to be produced did not enable the Appeals Tribunal to grant the motion in the respective part as the staff member did not refer to any existing document. The UNAT held that a request for Mr. SRB’s oral testimony should have been presented at the UNDT level. The UNAT denied the motion for evidence and the request for an oral hearing.
Decision Contested or Judgment/Order Appealed
The UNDT issued Judgment No. UNDT/2023/085, in which it dismissed an application contesting a disciplinary measure of separation imposed for misconduct, consisting of the staff member’s failure to disclose in his 2015 and 2018 United Nations job applications that his half-brother, Mr. SRB, was working for the United Nations. The staff member appealed. The staff member filed a motion for production of evidence, requesting the UNAT to order that: (a) the Secretary-General produce the complete employment history of Mr. SRB, including all the engagements with the United Nations, whether as a United Nations volunteer (UNV) or a staff member; (b) Mr. SRB be required to provide a statement from him to the UNAT as to the extent of his own knowledge and discussions with the staff member; and (c) Mr. SRB be required to be available to the UNAT for examination by the staff member's Counsel on his knowledge of the following: (i) the staff member's state of mind and knowledge, specifically whether the staff member had or should have had the required knowledge of Mr. SRB’s status with the United Nations Secretariat; and (ii) filial relationships in Nepal.
Legal Principle(s)
The Appeals Tribunal may admit additional documentary evidence, in terms of Article 2(5) of the UNAT Statute and Article 10(1) of the UNAT Rules of Procedure where an appellant shows: i) exceptional circumstances; and ii) that it will be in the interest of justice and the efficient and expeditious resolution of the proceedings to receive the additional evidence; and, iii) that the evidence was not known to either party and should not have been presented at the Dispute Tribunal level. While the Appeals Tribunal may, under the criteria set out in the Statute and Rules of Procedure, receive from a party an existing document consisting of statements of an established or potential witness and created for the purpose of presenting the additional written testimony to the Appeals Tribunal, it will not direct the creation of a document. An oral hearing before the Appeals Tribunal, if any, is limited to arguments by the parties.
Outcome
Outcome Extra Text
The UNAT ordered that the motion for filing a revised appeal is denied and the motion to withdraw the appeal is moot.