UNDT/2012/101, Leal
The Tribunal observed that the Applicant conceded, in his closing submission, that the distribution and storage of pornographic material using the UNDP equipment constituted misconduct. Therefore, the Tribunal considered the characterization of this charge settled and did not go on to examine it. On due process, the Tribunal found that the investigation was hasty and afforded the; Applicant little opportunity to prepare for his case. On proportionality, the Tribunal held that the lack of due process shown on the part of the Respondent while investigating the Applicant must necessarily count to mitigate his separation. To this extent, the sanction imposed on the Applicant was not proportionate in the circumstances.
The Applicant contested UNDP’s decision to separate him from service with payment in lieu of notice without termination indemnity. The Applicant contended that the investigation into his conduct was so unfair and procedurally flawed, as to render its conclusions unsafe. The Applicant also contended that the sanction imposed on him was grossly disproportionate to the alleged misconduct.
Pursuant to the jurisprudence, the role of the UNDT in disciplinary cases is to perform a judicial review of the case and assess the following elements: i. Whether the facts were established by clear and convincing evidence; ii. Whether facts amount to misconduct; iii. Whether the sanction is proportionate to the gravity of the offence; and iv. If the staff member’s due process rights were guaranteed during the entire proceeding.
The Tribunal ordered the Respondent to: i) Adjust the sanction from separation from service with payment in lieu of notice without termination indemnity to separation from service with termination indemnity; and ii) Pay the Applicant interest on the termination indemnity at the US Prime Rate from the date of the Applicant’s separation from service.