UNAT Held or UNDT Pronouncements
The UNAT held that the only issue on appeal was whether the UNDT erred in finding the additional disciplinary sanction disproportionate and rescinding it. It emphasized that under Staff Rule 10.3(b), sanctions must be proportionate, but the Administration enjoys broad discretion in disciplinary matters, subject to judicial review for lawfulness, rationality, and proportionality.
The UNAT found that the UNDT exceeded its authority by substituting its own opinion for that of the Secretary-General. It noted that the Administration had considered all relevant factors, including the seriousness of the misconduct, absence of financial gain or conflict of interest, lack of harm to the Organization, and mitigating circumstances such as long service and first-time misconduct. The contested sanction fell within the reasonable range of proportionate options based on past practice.
The UNAT also observed that the misuse of IT resources in addition to unauthorized outside activities justified a sanction beyond a written censure. It rejected the UNDT’s reliance on the Compendium of Disciplinary Measures as determinative, reiterating that parity is a guiding principle, not an absolute rule.
Therefore, the UNAT granted the appeal and reversed Judgment No. UNDT/2024/079, which had rescinded the deferment of eligibility for salary increment.
Decision Contested or Judgment/Order Appealed
A staff member of the United Nations Truce Supervision Organization (UNTSO), serving as Chief Security Officer in Jerusalem, contested the decision of the Administration to impose on him the disciplinary measure of a written censure and deferment for two years of eligibility for salary increment. The sanction was imposed for engaging in unauthorized outside activities, including forming and promoting a private company involved in anti-drone technology, and for using United Nations property and information and communication technology resources in connection with those activities.
In its Judgment No. UNDT/2024/079, the UNDT granted the application in part, rescinded the decision to defer the staff member’s eligibility for salary increment for two years, and affirmed the contested decision in all other respects, finding that the facts of misconduct were established, the conduct amounted to misconduct, and due process was observed, but the additional sanction was disproportionate.
The Secretary-General appealed.
Legal Principle(s)
The determination of what is a proportionate sanction is not an exact science but involves careful consideration of the facts of the case, the type of misconduct, the reasonable range of proportionate options available to the Secretary-General, and the disciplinary goals for the sanctions.
In determining whether the disciplinary sanction is proportionate or excessive to the misconduct, the question is not whether the sanction is the correct sanction in the opinion of the Tribunals. Rather the question is whether the sanction imposed alone or cumulatively with other measures on the disciplined staff member accomplishes their retributive and preventive effect, and falls within the appropriate exercise of discretion of the Administration, which conducts this exercise on a case-by-case basis, in connection with the circumstances of the specific disciplined behaviour, and past practice with similar cases.