Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
The Ä¢¹½ÊÓƵAT held that the Ä¢¹½ÊÓƵDT had not erred in finding that it had been proven by clear and convincing evidence that the staff member had engaged in harassment and abuse of authority, used her office for personal reasons to prejudice the position of a colleague, disclosed sensitive information, failed to report the possible misconduct of others, used a personal e-mail address contrary to the applicable provisions, and exchanged inappropriate messages about colleagues.
The Ä¢¹½ÊÓƵAT found that regardless of whether she had been a whistleblower engaged in a protected activity, there was no evidence that she had been retaliated against by commencement of the disciplinary process.
The Ä¢¹½ÊÓƵAT was of the view that, in the circumstances, any irregularity or vagueness in the formulation of the charges against her had not, in itself, vitiated the finding of misconduct or the imposition of the disciplinary measure.
The Ä¢¹½ÊÓƵAT held that, given the nature of the misconduct, the sanction was neither excessive, arbitrary, absurd nor discriminatory and the Ä¢¹½ÊÓƵDT had not erred by holding the sanction to be proportionate.
The Ä¢¹½ÊÓƵAT found that the Ä¢¹½ÊÓƵDT had not erred by not drawing an adverse inference against the Secretary-General for non-compliance of its Order to produce documents. However, the Ä¢¹½ÊÓƵAT found it troubling that the Secretary-General had expressly refused to comply with the Ä¢¹½ÊÓƵDT¡¯s Order and that the Ä¢¹½ÊÓƵDT had been silent on the non-compliance.
The Ä¢¹½ÊÓƵAT dismissed the appeal and affirmed the Ä¢¹½ÊÓƵDT Judgment.
Decision Contested or Judgment/Order Appealed
A former staff member contested a disciplinary decision to separate her from service for several counts of misconduct involving harassment, abuse of authority, misuse of United Nations property, failure to report possible misconduct, and efforts to disclose sensitive information and influence Member States.
In Judgment No. Ä¢¹½ÊÓƵDT/2024/061, the Ä¢¹½ÊÓƵDT dismissed the application on the merits.
The staff member appealed.
Legal Principle(s)
Retaliation means any direct or indirect detrimental action that adversely affects the employment or working conditions of an individual, where such action has been recommended, threatened or taken for the purpose of punishing, intimidating or injuring an individual because that individual engaged in a protected activity.
It is a very basic principle of due process in a disciplinary case that each of the relevant facts and allegations of misconduct be presented to the employee or staff member in such a manner that they can easily understand them, and they be afforded an adequate opportunity to respond to those allegations.
While the commission of misconduct or assisting purposively in the commission of it by another may be sanctionable, contemplation alone of misconduct is problematic.
Generally, it is relevant to compare disciplinary measures imposed on staff members who are involved in similar misconduct.
The Administration¡¯s apparent lack of action with respect to other staff members who may have also been involved, even to a greater degree than the appellant, does not reduce his or her accountability.
It is not an option for a party to blatantly disregard a Tribunal order and to simply not comply.