2021-Ģ��ƵAT-1181

Ģ��ƵAT Held or Ģ��ƵDT Pronouncements

Ģ��ƵAT considered an appeal by the Secretary-General. Ģ��ƵAT held that the Ģ��ƵDT erred in fact and in law in its finding that the facts of misconduct were not established by clear and convincing evidence. Ģ��ƵAT held that a number of the factual findings made by Ģ��ƵDT were not supported by the evidence and were unreasonable. Ģ��ƵAT held that the Ģ��ƵDT should have limited itself to determining whether the Secretary-General was within his authority to impose disciplinary measures on Mr. Hossain, and that by speculating on the misconduct of another individual, the Ģ��ƵDT exceeded its competence. Ģ��ƵAT held that the Ģ��ƵDT did not evaluate the evidence objectively; it came to an unreasonable conclusion on the facts which were not supported by the evidence, and made speculations instead of findings based on the evidence. Ģ��ƵAT held that the Ģ��ƵDT erred in law and fact in finding that the decision to separate Mr. Hossain from the Organisation was unlawful. Ģ��ƵAT held that the sanction was not unreasonable, absurd, or disproportionate, but rather a reasonable exercise of the Secretary-General��s discretion. Ģ��ƵAT rejected the Secretary-General��s claim for compensation. Ģ��ƵAT upheld the appeal a vacated the Ģ��ƵDT Judgment.

Decision Contested or Judgment/Order Appealed

Mr. Hossain challenged the Administration��s disciplinary sanction of separation from service with compensation in lieu of notice without termination indemnity for two charges of misconduct, namely the unauthorised transporting of ammunition and interfering with the investigation. Ģ��ƵDT rescinded the sanction, awarded compensation in lieu of rescission and awarded moral damages.

Legal Principle(s)

Judicial review of a disciplinary case requires Ģ��ƵDT to consider the evidence adduced and the procedures utilised during the course of the investigation by the Administration; Ģ��ƵDT is to examine whether the facts on which the sanction is based have been established, whether the established facts qualify as misconduct under the Staff Regulations and Rules, and whether the sanction is proportionate to the offence. The Administration bears the burden of establishing that the alleged misconduct for which a disciplinary measure has been taken against a staff member occurred. When termination is a possible outcome, misconduct must be established by clear and convincing evidence, which means that the truth of the facts asserted is highly probable. The presumption of innocence has to be respected.

Outcome

Appeal granted

Outcome Extra Text

N/A

OAJ prepared this case law summary for informational purposes only. It is no official record and should not be relied upon as an authoritative interpretation of the Tribunals' rulings. For the authoritative texts, please refer to the judgment or order rendered by the respective Tribunal. The Tribunals are the only bodies competent to interpret their respective judgments, as provided under Article 12(3) of the Ģ��ƵDT Statute and Article 11(3) of the Ģ��ƵAT Statute. Any inaccuracies in the publication are the sole responsibility of OAJ, which should be contacted directly for any correction requests. To provide comments, don't hesitate to get in touch with OAJ at oaj@un.org.

The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.

Applicants/Appellants

Hossain

Entity

Case Number(s)

Tribunal

Registry

Date of Judgement