2023-UNAT-1328, Antoine
The UNAT held that there was no merit to the staff member’s motion to strike from the record the Secretary-General’s response to a UNAT order requesting information. The UNAT found that the UNDT had not erred in its determination that the available information established on a balance of probabilities that the staff member had engaged in the alleged misconduct justifying his placement on ALWOP. The video clip, circulated on social media and elsewhere, the equivocal concession (later to become an unequivocal admission) to being the person in the vehicle and the identification evidence alone were sufficient to establish the misconduct: engaging in sexual activity in a UN vehicle as it circulated in a heavily trafficked area of the city. The UNAT noted that considering its serious nature, the misconduct and its potential to cause significant harm to the reputation and credibility of the Organization, constituted an exceptional circumstance. The misconduct was grave enough for the Administration to contemplate separation or dismissal, as it was irremediably damaging to the trust relationship between the staff member and the Organization. The evidence justified his removal from service pending the investigation in the interest of mitigating potential reputational harm to the Organization. The UNAT was of the view that in his appeal, the staff member failed to challenge the UNDT’s findings on receivability and mootness of the part of his application concerning the seizure of his smartphone. He simply reiterated his arguments going to the merits of his claim. Consequently, as there is no appeal against the jurisdictional issues of receivability and mootness, the jurisdictional findings of the UNDT must stand. The UNAT found that the length of this investigation preceding the ALWP extension decision (almost a year) was not inordinately out of line, considering that it involved several subjects, instances of non-cooperation, sensitive allegations and the imperative to ensure due process. In the circumstances, the failure to prioritize his case, while admittedly not ideal, was not so unreasonable as to justify the rescission of the ALWP extension decision. The UNAT dismissed the appeals and affirmed Judgment No. UNDT/2021/144 and Judgment No. UNDT/2021/151.
A former staff member contested the decision to place him on administrative leave without pay (ALWOP), a seizure of his personal smartphone by OIOS for the purposes of an investigation, and a decision to extend his placement on administrative leave with pay (ALWP). In Judgment No. UNDT/2021/144 and Judgment No. UNDT/2021/151, the UNDT dismissed the staff member’s applications. The staff member appealed.
It is not up to a party to request that the Appeals Tribunal strike out each and every argument she or he does not agree with, since it is natural that the parties may dispute certain issues or matters at stake. The qualification of a discretionary power to place a staff member on ALWOP, by way of a condition precedent requiring “exceptional circumstances”, is reviewable. There must be a rational basis for the categorization of the circumstances as exceptional. Given the hardship caused by ALWOP, the onus is on the Administration to prove the objective existence or factual basis of the exceptional circumstances. The length of time an investigation should take will depend on the circumstances, including any practical challenges at the duty station, the nature of the allegations, the complexity of the investigation and the need to follow due process.