UNDT/2023/110, O'Brien
The allegations that the Applicant improperly used his UNDP-issued laptop to access websites that contained pornography and other sexually explicit material and advertised escort services, has been established by clear and convincing evidence based on the investigations forensic report of his computer, the Applicant's partial admittance and several contradictions.There is also clear and convincing evidence that the Applicant engaged in three instances of unauthorised outside activities by being the Director and major shareholder of a company, and engaging in other business ventures in conjunction with said company and others. By engaging in unauthorised outside activities, especially in a field of work that overlaps with the Applicant's position in UNDP, the Applicant's conduct also gave rise to potential conflict of interest.Each of the Applicant's actions constitutes misconduct.The disciplinary measure is proportionate to the offence and in line with established jurisprudence and past Tribunal practice.
The Applicant contests the decision to impose on him the disciplinary sanction of separation from service with compensation in lieu of notice and without termination indemnity.
When termination is a possible outcome, misconduct must be established by clear and convincing evidence. Clear and convincing evidence requires more than a preponderance of evidence but less than proof beyond a reasonable doubt. It means that the truth of the facts asserted is highly probable.
The role of 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, and whether the sanction is proportionate to the offence.