UNDT/2020/193, Malhotra
The Applicant’s appeal against the decision to place her on administrative leave is not receivable since she failed to file a request for management evaluation as required. The Tribunal found that on the preponderance of the evidence, the Administration failed to demonstrate that the Applicant shouted at two staff members as charged. It was only established that the Applicant “expressed irritation†toward one staff member and she “lost her cool†and “spoke sharply†to another staff member. The Tribunal found that these behavior did not amount to harassment or abuse of authority and thus did not qualify as misconduct. The Tribunal found that the administrative measure of the removal of all supervisory functions for two years was not lawful as it was not warranted on the basis of the established facts before the Tribunal and the measure was not proportionate to the Applicant’s established wrongdoings since while an administrative measure, by definition, must be less punitive than a disciplinary sanction, the administrative measure imposed in this case was harsher than disciplinary sanctions. The Applicant’s argument that the decisions were tainted by bad faith, bias, and ill-will against her was rejected as she failed to prove ulterior motive. Having found that the disciplinary sanction and the administrative measure were unlawful, the Tribunal rescinded them. Since they did not concern “appointment, promotion or terminationâ€, no in-lieu compensation was set by the Tribunal. The Applicant’s request for granting her a new two-year appointment was rejected as she did not appeal any administrative decision not to renew her fixed-term appointment. The Applicant’s request for compensation for loss of income for the non-renewal of her fixed-term appointment was rejected as no such decision has been appealed in the application. Taking into account the severity of the illegality combined with the Applicant’s reputational damages and her distressed efforts to find new employment, the Tribunal awarded the Applicant three-months net-base salary in compensation for reputational harm.
The decision to place the Applicant on administrative leave with full pay pending the completion of an investigation The disciplinary measure of a written censure to be placed in official status file for five years An administrative measure of the removal of all supervisory functions for two years
In reviewing the disciplinary sanction, the Dispute Tribunal needs to consider the evidence adduced and the procedures utilized during the course of the investigation by the Administration. In this context, the Dispute Tribunal is to examine whether the facts on which the sanction is based have been established, whether the established facts qualify as misconduct under the Staff Regulations and Rules, and whether the sanction is proportionate to the offence. In this regard, the Administration bears the burden of establishing that the alleged misconduct for which a disciplinary measure has been taken against a staff member occurred and when termination is a possible outcome, misconduct must be established by clear and convincing evidence which means that the truth of the facts asserted is highly probable. The Administration enjoys a broad discretion in disciplinary matters a discretion with which the Tribunal will not lightly interfere. However, this discretion is not unfettered, and when judging the validity of the exercise of discretionary authority, the Dispute Tribunal determines if the decision is legal, rational, procedurally correct, and proportionate. Unless termination is the outcome of a disciplinary process, the Administration only has to establish a case of misconduct with the preponderance of evidence—and not by clear and convincing evidence. Because of the adverse impact on the concerned staff member’s career of an administrative measure, it must be warranted on the basis of reliable facts, established to the requisite standard of proof, namely that of ‘preponderance of evidence’ and be reasoned in order for the Tribunals to have the ability to perform their judicial duty to review administrative decisions and to ensure protection of individuals, which otherwise would be compromised. An administrative measure is less formal than a disciplinary sanction and is usually done with alacrity and is thus more flexible in order to better respond to the Organization’s needs of efficiency and it is a real exercise of discretion. Compensation for harm shall be supported by three elements: the harm itself an illegality and a nexus between both. It is not enough to demonstrate an illegality to obtain compensation the claimant bears the burden of proof to establish the existence of negative consequences, able to be considered damages, resulting from the illegality on a cause-effect lien. The harm to dignitas or to reputation and career potential may thus be established on the totality of the evidence or it may consist of the applicant’s own testimony or that of others, experts or otherwise, recounting the applicant’s experience and the observed effects of the insult to dignity. The facts may also presumptively speak for themselves to a sufficient degree that it is permissible as a matter of evidence to infer logically and legitimately from the factual matrix, including the nature of the breach, the manner of treatment and the violation of the obligation under the contract to act fairly and reasonably, that harm to personality deserving of compensation has been sufficiently proved and is thus supported by the evidence.