Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
The Ä¢¹½ÊÓƵAT held that the Ä¢¹½ÊÓƵDT did not err in law in its interpretation of Staff Rule 10.1(b) and properly held that ¡°financial loss¡± requires a demonstrable and quantifiable monetary detriment to the Organization, directly caused by the staff member¡¯s wilful, reckless, or grossly negligent misconduct, and not offset by equivalent or greater value received.
The Ä¢¹½ÊÓƵAT rejected the Secretary-General¡¯s argument that any unauthorized use of funds constitutes ¡°financial loss¡±, holding that this conflates misconduct with loss.Accordingly, it held that the failure to follow procurement procedures resulting in expenditure does not, by itself, establish the existence of a financial loss.
However, the Ä¢¹½ÊÓƵAT found that the Ä¢¹½ÊÓƵDT erred in concluding, without supporting evidence, that the Organization had received a tangible, ongoing security benefit from the unauthorized construction.In particular, it found that the Ä¢¹½ÊÓƵDT erred in recognizing that the value of the improvements to the OHCHR Yemen CO premises could not be quantified in monetary value while nevertheless concluding that they could not be worth less than USD 86,000.
The Ä¢¹½ÊÓƵAT held that the former staff member failed to discharge the burden of proving both the existence and the value of any material and reasonably acceptable benefit or advantage to the Organization. To the contrary, it found that the unauthorized construction was carried out on rented premises, rendering the improvements an irrecoverable asset for the Organization.The Ä¢¹½ÊÓƵAT therefore concluded that the proven financial loss was USD 86,000, corresponding to the amount of the misappropriated funds.
The Ä¢¹½ÊÓƵAT granted the appeal and reversed in part Judgment No. Ä¢¹½ÊÓƵDT/2025/034, with Judge Forbang and Judge Ziad¨¦ dissenting.
Decision Contested or Judgment/Order Appealed
A former Head of the Office of the High Commissioner for Human Rights (OHCHR), Yemen Country Office (CO) contested the decisions of the Administration: i) to impose on him the disciplinary measure of separation from service, with compensation in lieu of notice and without termination indemnity; and ii) to recover from him the amount of USD 86,000 through a deduction from his final entitlements, for the financial loss suffered by the Organization as a consequence of his misconduct, pursuant to Staff Rule 10.1(b). These measures were imposed after the former staff member was found to have utilized and/or caused the utilization of OHCHR funds totaling USD 86,000 that had been allocated for other purposes, namely for constructing a new OHCHR building in Yemen.
In its Judgment No. Ä¢¹½ÊÓƵDT/2025/034, the Ä¢¹½ÊÓƵDT upheld the disciplinary measures but rescinded the decision to recover USD 86,000 from the former staff member¡¯s final entitlements.
The Secretary-General appealed the Ä¢¹½ÊÓƵDT¡¯s rescission of the recovery decision.
Legal Principle(s)
The first step of the interpretation of any kind of rules consists of paying attention to the literal terms of the norm. When the language used in the respective disposition is plain, common, and causes no comprehension problems, the text of the rule must be interpreted upon its own reading, without further investigation.
Where the Secretary-General determines that a staff member¡¯s conduct constituted misconduct, and that such conduct was wilful, reckless or grossly negligent, the staff member may be required to reimburse the United Nations either partially or in full for any financial loss suffered by the United Nations as a result of his/her conduct.
¡°Financial loss¡± requires a worsening of the Organization¡¯s financial or monetary position caused by the established misconduct, which worsening must be proven through evidence. Accordingly, ¡°financial loss¡± cannot be equated with a mere procedural impropriety absent proof of actual loss but requires proof that the Organization was left financially worse off. This inherently requires factoring in any material and reasonably acceptable benefit or advantage, financial or otherwise, received by the Organization in determining the loss.
Accordingly, to trigger reimbursement under Staff Rule 10.1(b), the Administration must establish on the balance of probabilities that: (i) the proven misconduct caused the asserted loss; and (ii) the amount of the loss is reasonably identifiable and quantifiable (e.g., the cost paid minus the fair and reasonably acceptable value received, or the cost of remedial measures made necessary by the misconduct).Once the Administration has quantified the loss, if the staff member contends that there is a benefit to the Organization, they have the onus to identify and quantify any material and reasonably acceptable benefit or advantage (or value) received by the Organization.