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The more serious an allegation against a staff member and attendant sanction, the higher the degree of proof required. Establishing criminal liability in investigations and judicial proceedings even in the context of a civil matter such as this must necessarily require that a standard higher than the ordinary one of a balance of probabilities must be attained. The OIOS Investigations Manual requires that investigators approach matters with an ¡°open mind¡± and emphasises that their task is to ¡°establish facts¡± and draw ¡°reasonable conclusions¡± from those facts. It is a ¡°dispassionate...

The Tribunal¡¯s findings were that the Respondent had sufficiently substantiated his allegations against the Applicant. It also found that due process had been afforded to the Applicant. Given that the Applicant failed to abide by staff regulation 1.2 (b) and former staff rule 110.1, the Tribunal concluded that the decision to summarily dismiss the Applicant was proportionate to the nature of the charges.

Pursuant to section 3 of ST/AI/371, in determining if the preliminary investigation appears to indicate that the report of misconduct is well founded, the head of office or responsible officer is vested with a wide discretion. That discretion is to be exercised judiciously in the light of what the investigation has revealed. The discretion cannot and should not be used capriciously. It is incumbent on the person vested with that discretion to scrutinise the evidence carefully before deciding whether any act of misconduct as defined has been committed. A judicious exercise ofthe discretion...

The charge relating to the unauthorized use of the Ä¢¹½ÊÓƵON ID card to gain access to the Ä¢¹½ÊÓƵ premises in Nairobi was properly brought. However, before a conclusion was reached, the decision maker was required not simply to ask whether, as a question of fact, tax and duty free purchases were made by the staff member but also whether by doing so the staff member had the mens rea to abuse Ä¢¹½ÊÓƵ privileges and immunities or whether he genuinely believed, on reasonable grounds that he was entitled to have access to the Ä¢¹½ÊÓƵ Commissary. Based on the evidence, the Tribunal found that on the balance of...

The Respondent had sufficiently substantiated his allegations against the Applicant. It also found that due process had been afforded to the Applicant. Given the gravity of the allegations, the Tribunal decided that the decision to summarily dismiss the Applicant was proportionate to the nature of the charges.

The Tribunal takes note that the Applicant has failed to file his application within the deadline given to him in the Tribunal¡¯s Order of 22 January 2010 and even beyond. It also notes that the Applicant has not provided any reasonable explanation as to why he did not comply with the Order of the Tribunal. By his behaviour and attitude the Applicant has displayed a singular blatant ignorance of a court order. His conduct is one of contempt of the Tribunal. This attitude does not befit persons who like the Applicant come to seek justice and a vindication of their rights before the Tribunal.

The Tribunal cannot allow the Applicant¡¯s claim to continue to ¡°hang like the sword of Damocles¡± over the efficient operations of the Organization. The Applicant had failed to give instructions to his Counsel in respect of his Application. The Applicant¡¯s Counsel¡¯s responses show disregard for the directions from the Tribunal. The Applicant has not actively or diligently pursued his case.

The Tribunal examined whether the application contained an administrative decision falling under the purview of Article 2.1 (a) of the Ä¢¹½ÊÓƵDT Statute. The Tribunal took the view that the decision taken by the administration to appoint an ad interim DCPM and to reallocate responsibilities and duties pursuant to that appointment was an administrative decision. Nevertheless, for the purposes of Article 2.1 (a) of the Ä¢¹½ÊÓƵDT Statute, the Tribunal stated that it is not sufficient for the Applicant to merely establish that an administrative decision was taken in the overall context of the position she...

The jurisdiction ratione materiae conferred on the Tribunal is set out in Article 2.1 (a) of the Statute of the United Nations Dispute Tribunal. The Tribunal cannot compel the Organization to investigate the Applicant¡¯s complaints against ECA¡¯s Senior Management as pleaded by the Applicant. An investigation is part of a disciplinary procedure as described at paragraph 2 of ST/AI/371 ¨C Revised Disciplinary Measures and Procedures. The Applicant has recourse under the Staff Regulations and Rules to pursue his grievances in relation to his allegations of abuse of authority by ECA Management.

A re-trial would be unduly wasteful of time and resources. The Respondent was adequately represented especially as no oral evidence was tendered by the Applicant and the issue of cross- examining a witness did not arise. Full equality was accorded the parties in the circumstances. The onus lies on the Respondent to show that the provisions of ST/AI/2006/3 had been complied with in this case in order to prove that the Applicant was fully, fairly and properly considered. This onus has not been discharged.The Applicant¡¯s candidature was not considered at the 15-day mark as required by the...