UNDT/2024/061, Rotheroe
Each of the three allegations were serious on their own. The compound nature of the allegations left no possibility for any other punishment than separation. The Organization’s zero-tolerance policy also entails severe punishments for those who engage in harassment (see, for instance, the Appeals Tribunal in Conteh 2021-UNAT-1171, para. 41).
The record indicated that the decision-maker weighed all factors, both mitigating and aggravating, before arriving at the contested decision. Since there was sufficient evidence that all factors were given due consideration, but that the aggravating factors outweighed the mitigating factors, there was no basis upon which the Tribunal may interfere with the decision.
The Tribunal considered that the Applicant did not come with clean hands, heart, conscience and mind. For instance, her response to the question of whether an OIOS investigator was sharing confidential information with her and her colleagues was very disappointing, to say the least.
The Tribunal found that the decision to impose the impugned disciplinary measure on the Applicant was based on clear and convincing evidence and was taken in compliance with applicable legal norms. The disciplinary measure applied was proportionate to the offences.
The Applicant filed an application contesting the decision to impose upon her “the disciplinary measure of separation from service with compensation in lieu of notice and without termination indemnity”.
According to the Appeals Tribunal, if the parties agree to certain facts, then the Dispute Tribunal is not to further review these facts but accept them as settled (see Ogorodnikov 2015-UNAT-549, para. 28).
The Administration bears the burden of establishing, by clear and convincing evidence, that the misconduct occurred, which means that the truth of the facts asserted is highly probable (see para. 51 of Karkara 2021-UNAT-1172, and similarly in, for instance, Molari 2011-UNAT-164; Diabagate 2014-UNAT-403; Modey-Ebi 2021-UNAT-1177; Khamis 2021-UNAT-1178; Wakid 2022-UNAT-1194; Nsabimana 2022-UNAT-1254; Bamba 2022-UNAT-1259).
The Administration has broad discretion in sanctioning misconduct even if the sanction is considered harsh or severe (see, the Appeals Tribunal in Egian 2023-UNAT-1333, para. 104, and in many other judgments).
Having found that the facts on which the disciplinary measure was based had been established, that the established facts amounted to misconduct, that the sanction was proportionate to the offences, and that the Applicant’s due process rights were respected, the Tribunal also rejected the Applicant’s requests for the rescission of the contested decision, for the reinstatement of all her entitlements up to the age of retirement, and for the award of compensation for damage to her reputation and dignitas.