UNDT/2020/209, Kennedy
The Applicant admitted that he printed work-related emails, lost them, and failed to report the incident. He only contested the Administration’s determination that the information contained in the printed emails was confidential, but the Tribunal found that in light of the nature of the contents in the emails the Administration reasonably considered them to be confidential. Considering that loss of confidential information could have serious ramifications, it was appropriate to conclude that the Applicant acted with gross negligence when he lost emails and did not report the incident. The Tribunal found that the imposed sanctions were proportionate to the offense considering the seriousness of the Applicant’s misconduct and the Applicant’s role as a Vice President of the Staff Union.
The disciplinary sanctions of written censure, two years ineligibility for promotion and loss of four steps of grade for gross negligence
The Dispute Tribunal has the inherent power to individualize and define the administrative decision challenged by a party and to identify the subject(s) of judicial review and may consider the application as a whole, including the relief or remedies requested by the staff member, in determining the contested or impugned decisions to be reviewed. 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.