2023-UNAT-1357, Elmira Ela Banaj
The UNAT considered an appeal by the staff member.
The UNAT found that the UNDT had reviewed the disciplinary decision thoroughly and methodically; the UNDT had not erred in fact or law in conducting the proportionality analysis and there had been no irregularity in the investigation and disciplinary process, warranting intervention.
The UNAT agreed that the obligation not to disclose internal information is not limited to confidential information. The UNAT found that even if the staff member had liaison functions with member states, it did not give her the right to communicate internal information to some member states without authorization. Moreover, when a report is under a strict embargo against dissemination, the staff member did not have a right to share it with member states without authorization, even if the member states might have received it by other means. Where it was unambiguously proven that the staff member had shared personal criticism of UNODC with government officials, the Administration did not have to prove that this caused any harm in order to impose disciplinary measures on her. Lastly, it may also be considered an aggravating factor if the staff member under investigation refuses to turn over a UNODC-issued mobile phone and a personal phone for which she received reimbursement for official calls.
The UNAT noted that as illegality was absent from the contested decision, there could not be compensation.
The UNAT dismissed the appeal and affirmed Judgment No. UNDT/2022/060.
A staff member contested the decision to impose on her the disciplinary measure of demotion of one grade with deferment, for one year, of eligibility for consideration for promotion.
In Judgment No. UNDT/2022/060, the UNDT dismissed the application. The UNDT found that the facts on which the disciplinary measure was based (the staff member, on several occasions, intentionally disclosed internal information to officials of member states without prior authorization and shared personal criticism about the activities and policy decisions of UNODC with officials of member states) had been established. The UNDT noted that the Administration had duly considered relevant factors in determining the proportionality of the sanction.
The UNAT is not a forum for a party to reargue their case without demonstrating on which grounds an impugned UNDT judgment is erroneous. Mere disagreement with the UNDT’s conclusion is not a justification for the UNAT to interfere with the findings of the UNDT.
Being a working document does not necessarily disqualify such a document as internal information. Internal information is not required to be labeled or watermarked as a draft or as confidential, or for internal use only.
The Administration bears the burden to prove that the facts underlying the disciplinary measure have been established and the staff member bears the burden to provide sufficient and credible evidence to substantiate her allegations adduced in her defense. It is a principle in evidence law that the burden of proof lies with the party who presents a claim.
The Administration is best suited to select a sanction able to adequately fulfil its general purpose within the limits stated by the respective norms, i.e., a measure sufficient to prevent repetitive wrongdoing, punish the wrongdoer, satisfy victims and restore the administrative balance.
Procedural fairness is a highly variable concept and is context specific.