Chapter V. Decisions of Administrative Tribunals of the United Nations and related intergovernmental organizations

DECISIONS OF ADMINISTRATIVE TRIBUNALS OF THE UNITED

NATIONS AND RELATED INTERGOVERNMENTAL ORGANIZATIONS1

1. Decisions of the United Nations Administrative Tribunal2

   1. Judgement no. 1004 (26 July 2001): Capote v. the SeCretarygeneral of the united nationS3

      Summary dismissal for serious misconduct—Question whether a personal matter fell within the disciplinary purview of UNICEF—Staff regulation 1.4— Issue of prima facie evidence of wrongdoing—Delays in JDC proceedings

      The Applicant, who held a permanent appointment as a Budget Assistant at the G-6 level in the Division of Financial and Administrative Management, UNICEF, in August 1994 agreed to assist a friend and colleague during the latter’s sudden posting to Rwanda. She was given a power of attorney that gave her access to her colleague’s savings and checking accounts for the purpose of managing her financial affairs. The Tribunal noted that at the least the two agreed that the Applicant would pay her colleague’s rent and other bills. Subsequently, the Applicant opened two joint credit card accounts, which became substantially in arrears, having her colleague as the primary cardholder but using the Applicant’s address. The Tribunal further noted that the Applicant claimed that she had been given authorization by her colleague to open the accounts, but the colleague asserted that she had only learned of the accounts when she returned from Rwanda in September 1995, and only after being contacted concerning the arrearages.

      On 13 December 1996, the colleague informed the Comptroller of UNICEF of her discoveries, making a notarized statement dated 20 December 1996. On the same day the Applicant was suspended with pay pending the results of an investigation. She replied to the charges on 12 February and, based on the preliminary conclusions of the investigation, she was summarily discharged on 27 February 1997 for serious misconduct, pursuant to staff regulation 1.4, i.e., applying for and opening the two credit cards without authorization and for making false certifications on the applications for the credit cards (giving her own telephone number instead of her colleague’s and the incorrect maiden name of the colleague’s mother).

      However, in consideration of the matter, the Tribunal found that the circumstances of the case did not fall within the disciplinary purview of UNICEF. The Tribunal considered that staff regulation 1.4 required that staff “conduct themselves at all times in a manner befitting their status as international civil servants . . . They shall avoid any action . . . which may adversely reflect on their status or on the integrity, . . . required by that status . . .”. And while a personal matter that reflected adversely on the Organization might be the subject of disciplinary proceedings, the United Nations Staff Regulations principally addressed conduct related to employment.

      In the view of the Tribunal, this was purely an arrangement of some kind between colleagues regarding personal activities and personal funds. As explained by the Tribunal, the Administration was not responsible for the financial affairs of the Applicant’s colleague, had no interest in her funds and could not affect the personal arrangement, and therefore could not be called on to use suspension with pay to oversee the personal affairs and relationships of its employees under the particular circumstances of the case, i.e., the colleague’s allegations were in dispute and not “prima facie well founded” (Judgement No. 931, Shamsi and Abboud, para. V (1999)). The Tribunal also concluded that this was true of the summary dismissal of the Applicant and pointed out that, when she was suspended and subsequently summarily dismissed, there was an obvious recourse to the credit card companies or to the civil, or criminal, dispute resolution procedures provided by local law.

      Furthermore, the Tribunal stated that, pursuant to staff regulation 1.4, the actions of the Applicant had not affected her status as an international civil servant or adversely reflected on her status or integrity to the extent that a suspension with pay (although not a disciplinary measure) was justified. It noted in that regard that the suspension had occurred after an unsupported allegation that fell far short of prima facie evidence of wrongdoing; the oral allegation was made on 13 December and the Applicant was suspended on 18 December 1996; and it was not until early the following year that the Respondent had any other evidence of the alleged false certification.

      Regarding the issue of the summary dismissal, the Tribunal, while recognizing that UNICEF had properly referred the matter to an ad hoc Joint Disciplinary Committee (JDC), as provided for in the rules, considered that the delays in the proceedings could not be justified. The Applicant had requested on 30 April 1997 a review of her summary dismissal; she was informed on 11 December 1997 of the composition of the ad hoc JDC; and the report and recommendations were issued on 7 May 1998.

      For the foregoing reasons, the Tribunal found in favour of the Applicant and ordered the rescission of the decision to summarily dismiss her for serious misconduct, but should the Secretary-General decide in the interest of the Organization that the Applicant be compensated without further action being taken in her case, the Tribunal fixed the compensation to be paid to her at two years of her net base salary. The Tribunal also ordered that the Respondent pay her six months of her net base salary as compensation for the moral injury suffered.

   2. Judgement no. 1009 (26 July 2001): makil v. the SeCretary-general of the united nationS4

      Non-consensual special leave with full pay six months before retirement—

      Findings of fact by United Nations bodies—Basis for the altering of facts by the Tribunal—Staff regulation 5.2 and staff rule 105.2(a)(i) on special leave—Proof of an ulterior, improper motive—Urgency of situation preventing an investigation or hearing—Right to express opposing views—Right to counsel—Question of a precipitous expulsion from one’s office

      The Applicant, who had joined the International Trade Centre UNCTAD/WTO (ITC) on 12 August 1968 as an Economic Affairs Officer, was subsequently promoted, on 12 June 1994, to Deputy Executive Director of ITC, at the D-2 level. On

      2 December 1996, the Applicant was placed on special leave with full pay through

      31 May 1997, at which time he retired. During his United Nations service, the Applicant received four performance evaluations covering the period from August 1968 to April 1981, receiving overall ratings from “very good” to an “exceptionally competent staff member of unusual merit”.

      Sometime during the early fall of 1996, the Executive Director met privately with the Applicant and allegedly warned him that he needed to change his attitude towards the internal reform process instituted by the Executive Director. During the last week of October 1996, a team from the Office of Internal Oversight Services (OIOS) visited the offices of ITC in Geneva in order to review the Centre’s programme of work and administrative practices and subsequently issued a report emphasizing the Centre’s lack of delegation of authority, responsibility and accountability. By letter of 2 December 1996, the Executive Director informed the Applicant that his “lack of commitment and support in implementing the reform . . . and our increasingly divergent views and consequent difficulties to work as a management team have led me to conclude that your involvement in the process would constitute a serious impediment to the success of the overall exercise”. The Executive Director further informed the Applicant in the letter that he was placing him on special leave with full pay immediately, until the date of his retirement. The Applicant was also informed that his access to documentation was limited to his official status file, and he was requested to vacate his office by noon the following day, 5 December 1996. The Executive Director sent a memorandum to all ITC staff informing them of his decision.

      The Applicant had submitted that “the hearing of the present appeal before the Tribunal was de novo, the so-called findings of the Joint Appeals Board had no legal weight or priority”. The Tribunal, disagreeing with that submission, observed that its statute did not envisage that findings of fact upon which it had reached a decision would ordinarily or usually be made following its own investigations or upon facts found by the Tribunal itself. Rather, matters before the Tribunal arrived almost invariably after a preliminary investigation by a Joint Disciplinary Committee (JDC) or a Joint Appeals Board (JAB) or like body that carried out investigations and made findings of fact and then reported thereon. As the Tribunal pointed out, the exception to this general rule arose when the parties had no dispute as to the facts and the matter could be referred to the Tribunal in the first instance on the basis of “agreed facts”, in accordance with article 7 of the statute.

      Accordingly, the Tribunal would ordinarily operate on the facts found by the JDC or JAB or other primary fact-finding body, unless the Tribunal expressed reasons for not doing so, such as identifying a failure or insufficiency of evidence to justify the finding of fact allegedly made or where it identified prejudice or perversity on the part of the said fact-finding body or found that it had been influenced in making that finding of fact by some extraneous or irrelevant matter. At the same time, the Tribunal stressed that the above principles were applicable to findings of primary facts and had no bearing on the question of interpretation of documents or the drawing of inferences from primary facts, i.e., secondary facts.

      In consideration of the above, the Tribunal noted that there was an issue between the Applicant and the Executive Director of ITC as to whether the latter had...