Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT did not err and that clear and convincing evidence established that the Appellant participated in an attempted taking of property belonging to the Organisation. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT did not err in concluding that the disciplinary sanction of dismissal from service was proportionate and lawful. On the Appellant¡¯s claim that the items were ¡°garbage¡±, Ä¢¹½ÊÓƵAT held that this claim was entirely without merit as the evidence showed that the items included over USD 5,000 worth of material, including boxes of new floor tiles. On the Appellant¡¯s claim that Ä¢¹½ÊÓƵDT failed to fully assess the new facts presented by a witness, Ä¢¹½ÊÓƵAT considered the testimony lacked credibility. Recalling that some degree of deference must be given to the factual findings of Ä¢¹½ÊÓƵDT, Ä¢¹½ÊÓƵAT held that the Appellant failed to explain in what way the alleged factual errors of Ä¢¹½ÊÓƵDT resulted in a manifestly unreasonable decision, warranting the intervention of Ä¢¹½ÊÓƵAT. Agreeing with the finding of Ä¢¹½ÊÓƵDT, Ä¢¹½ÊÓƵAT held that the established facts amounted to serious misconduct. Ä¢¹½ÊÓƵAT held that given the seriousness and degree of the Appellant¡¯s misconduct, the sanction of dismissal was not unreasonable, absurd, or disproportionate and that it was a reasonable exercise of the Secretary-General's discretion to determine that participating in an attempted theft rendered the Appellant unfit for further service with the Organisation. Ä¢¹½ÊÓƵAT held that the key elements of the Appellant¡¯s right to due process were met and Ä¢¹½ÊÓƵAT found no error in the Ä¢¹½ÊÓƵDT finding that there were no breaches of the Appellant¡¯s due process rights during the investigation and disciplinary process. Ä¢¹½ÊÓƵAT held that, even if some violations of the Appellant¡¯s due process rights had occurred due to his alleged limited understanding of English, they were cured during the oral proceedings before Ä¢¹½ÊÓƵDT. Ä¢¹½ÊÓƵAT recalled the no-difference principle considering the Appellant¡¯s own concession of the basis of the charges against him, i. e., that he had participated in the unauthorized attempt to remove Ä¢¹½ÊÓƵMISS property. With respect to the Appellant¡¯s claims regarding bias and unfairness, Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT did not commit any errors of procedure such as to affect the decision of the case. Noting Ä¢¹½ÊÓƵDT¡¯s wide discretion in matters of case management, Ä¢¹½ÊÓƵAT held that it was in Ä¢¹½ÊÓƵDT¡¯s discretion to give some directions to the Appellant¡¯s legal representative and that these statements did not reflect bias against the Appellant. Ä¢¹½ÊÓƵAT noted that the Appellant failed to explain how the alleged bias affected the decision of the case. Ä¢¹½ÊÓƵAT rejected the Appellant¡¯s claim for compensation. Ä¢¹½ÊÓƵAT dismissed the appeal and affirmed the Ä¢¹½ÊÓƵDT judgment.
Decision Contested or Judgment/Order Appealed
The Applicant contested his dismissal from service for attempting to remove, without authorization, building materials and household properties belonging to the United Nations Mission in South Sudan (Ä¢¹½ÊÓƵMISS). Ä¢¹½ÊÓƵDT dismissed the application, finding that the Administration had proven the case of misconduct against him by clear and convincing evidence. Ä¢¹½ÊÓƵDT further concluded that the sanction of dismissal was proportionate and consistent with the Secretary-General's usual practice in disciplinary cases involving theft.
Legal Principle(s)
Ä¢¹½ÊÓƵAT is competent to hear appeals from an international organization or other entities participating in the common system of conditions of service where a special agreement has been concluded which accepts the jurisdiction of Ä¢¹½ÊÓƵAT. However, such a special agreement may only be concluded where the organization or entity utilizes a neutral first instance process that includes a written record and written decision providing reasons, fact and law.