2023-Ģ��ƵAT-1331

Ģ��ƵAT Held or Ģ��ƵDT Pronouncements

Ģ��ƵAT denied the Appellant��s request for an oral hearing and held that it would not assist in the expeditious and fair disposal of the case, as required by Article 18(1) of the Ģ��ƵAT Rules of Procedure. Ģ��ƵAT held that the Ģ��ƵDT did not err in striking the evidence filed with the Appellant��s closing submissions or in refusing to hear the Appellant��s supervisors as witnesses. Ģ��ƵAT held that there was clear and convincing evidence that the Appellant used the Ģ��ƵHCR VAT exemption card and credit card for his personal use and that the disciplinary measure was proportionate to the nature and gravity of the Appellant��s misconduct. Further, Ģ��ƵAT concluded that the Appellant��s argument that he was compensating himself for the use of his personal vehicle and the personal expenses incurred during the performance of his functions was took into account as mitigating circumstances. However, Ģ��ƵAT held that Appellant��s argument that he was acting in compliance with the common practice at Ģ��ƵHCR and under the orders of his superiors who were not applying the Policy on the Use of Vehicles in Ģ��ƵHCR was not a valid excuse for misconduct.
Accountability referral: Ģ��ƵAT referred the case to the High Commissioner for possible action to enforce accountability by the Appellant��s supervisors who, in breach of the Ģ��ƵHCR Policy on the Use of Vehicles, authorized the regular use of private cars by staff members for official purposes compensated for by the reimbursement of gasoline expenses.

Decision Contested or Judgment/Order Appealed

The Appellant, a former staff member of Ģ��ƵHCR, contested the decision to impose on him the disciplinary measure of separation from service, with compensation in lieu of notice and with half of the termination indemnity for misconduct. In its Judgment No. Ģ��ƵDT/2021/163, the Ģ��ƵDT concluded that there was clear and convincing evidence that the Appellant used the Ģ��ƵHCR VAT exemption card and credit card for his personal use and dismissed his application.

Legal Principle(s)

It is not illegal to impose a disciplinary measure on a staff member who is on sick leave. In disciplinary cases, the Ģ��ƵDT must establish: i) whether the facts on which the sanction is based have been established, ii) whether the established facts qualify as misconduct under the Staff Regulations and Rules, and iii) whether the sanction is proportionate to the offence. The Administration bears the burden of establishing the alleged misconduct by clear and convincing evidence. It is not sufficient for the Appellant merely to repeat the arguments submitted before the Ģ��ƵDT. He must show how the Ģ��ƵDT erred in its analysis. Ignorance of the law is not a valid defense.

Outcome

Appeal dismissed on merits

Outcome Extra Text

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

Osvaldo Di Mario

Entity

Case Number(s)

Tribunal

Registry

Date of Judgement