UNAT Held or UNDT Pronouncements
The Tribunal found that in this case, the evidence adduced by the Respondent was neither clear nor convincing. Accordingly, the Tribunal held that the Respondent had failed to show that it was highly probable that the Applicant had committed the alleged misconduct and thus had failed to meet its burden of proof. Accordingly, the Tribunal decided to:
a. Rescind the decision to separate the Applicant from service;
b. Set the amount of compensation that the Respondent may elect to pay in lieu of implementing the rescission at two years net salary with interest at the US prime rate from the date of the improper termination;
c. Implore the Administration not to elect payment of compensation in lieu of reinstating the Applicant to the position from which he was wrongfully terminated; and
d. Deny all other claims for relief in the case.
Decision Contested or Judgment/Order Appealed
The Applicant contested MONUSCO¡¯s decision to separate him from service with compensation in lieu of notice and without termination indemnity.
Legal Principle(s)
Pursuant to the jurisprudence of the Tribunal, the role of the UNDT in disciplinary cases is to perform a judicial review of the case and assess the following elements:
i. Whether the facts on which the disciplinary measure was based were established by clear and convincing evidence;
ii. Whether the facts established amount to misconduct;
iii. Whether the staff member¡¯s due process rights were guaranteed during the entire proceeding; and
iv. Whether the sanction is proportionate to the gravity of the offence.
Outcome
Outcome Extra Text
The Tribunal:
a. Set the amount of compensation that the Respondent may elect to pay in lieu of implementing the rescission at two years net salary with interest at the US prime rate from the date of the improper termination; and
b. Implored the Administration not to elect payment of compensation in lieu of reinstating the Applicant to the position from which he was wrongfully terminated.