UNDT/2024/036, O'Mullane
The Tribunal noted that, as stipulated in sec. 5.1 of ST/AI/2017/1, “OIOS retains the ultimate authority to decide which cases it will consider and shall determine whether the information of unsatisfactory conduct received merits any action”.
Accordingly, the Tribunal found that the contested decision was lawful.
As the decision by OIOS not to open an investigation was found to be a lawful exercise of the Administration’s discretion, there was no basis for the referral of this case to the Secretary-General for possible action to enforce accountability.
The Applicant contested the “decisions of the Office of Internal Oversight Services (“OIOS”) to decline to open an investigation into his report of possible harassment and abuse of power against the [United Nations] Controller”.
The Appeals Tribunal has held that the investigation of management and administrative practices or of disciplinary cases is usually a matter within the discretion of the Administration. (See, for instance, Benfield-Laporte 2015-UNAT-505, para. 37 and Abboud 2010-UNAT-100, para. 34).
A staff member has no right to compel the Organization to conduct an investigation, unless such a right is granted by the Staff Regulations and Rules of the United Nations (See, for instance, Nwuke 2010-UNAT-099, paras. 3, 28, 30 and 36; Ross 2023-UNAT-1336, para. 24).
The Appeals Tribunal has held that when reviewing the validity of the Administration’s exercise of discretion in administrative matters, the role of the Dispute Tribunal is to determine whether the contested decision is legal, rational, procedurally correct, and proportionate. It is not the role of the Dispute Tribunal to consider the correctness of the choice made by the Administration amongst the various courses of action open to it. Nor is it the role of the Dispute Tribunal to substitute its own decision for that of the Administration (see, for instance, Barbulescu 2023-UNAT-1392, para. 54; Kanbar 2021-UNAT-1082, para. 30; Sanwidi 2010-UNAT-084, para. 42).
The Applicant’s oral motion for the joinder of his two cases was deemed moot as Case No. UNDT/NY/2023/019 had already been adjudicated separately via Judgment No. UNDT/2024/025.