UNDT/2019/032, Ladu
The case of misconduct against the Applicant was established by clear and convincing evidence. The Appeals Tribunal has previously made findings on staff members whose occupations within the United Nations system place them in “positions[s] of trust” and held that a breach of that trust impacts negatively “on the issue of proportionality.” Security officers within the United Nations system similarly occupy positions of trust, charged as they are with the protection of personnel and property of the United Nations. In established cases of theft, the sanction is usually severe. The sanction of dismissal from service in this case accorded with the Respondent’s usual practice thus there was no need for the Tribunal to interfere with it.
The Applicant challenged the Respondent’s decision to summarily dismiss him for misconduct.
Disciplinary cases are not criminal. Liberty is not at stake. But when termination might be the result, sufficient proof is required. When termination is a possible outcome, misconduct must be established by clear and convincing evidence. Clear and convincing proof requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt—it means that the truth of the facts asserted is highly probable. Relevancy is the hallmark of evidence. It is also the principal standard by which the facts of a case presented to the Tribunal are evaluated or reviewed. The duty to provide legal representation for a party must be approached with a sense of responsibility and candor. The legal representative of a party is an officer of the Tribunal and while he has a duty to protect his client’s interest, he must preserve his own integrity and that of the Tribunal by refraining from making ridiculous and scandalous submissions. The role of the Tribunal is to examine whether the facts on which the sanction is based have been established, whether the established facts qualify as misconduct, and whether the sanction is proportionate to the offence. The degree of the sanction is usually reserved for the Administration, who has discretion to impose the measure that it considers adequate to the circumstances of the case and to the actions and behavior of the staff member involved.