Judgment No. 4815
Decision
The complaint is dismissed.
Summary
The complainant contests his summary dismissal.
Judgment keywords
Keywords
proportionality; summary dismissal; discretion; complaint dismissed
Consideration 11
Extract:
The complainant […] submits that there was procedural irregularity because the [the Office of Internal Oversight Services]’s decision to interview him just one day after he was notified of its investigation into the allegation of fraud with no choice of a later date despite the seriousness of the allegations, was biased. According to paragraph 50 of the Investigation Guidelines, IOS conducts interviews to give a person who is interviewed an opportunity to be heard and to elicit information about the matter under investigation. Paragraph 53 of the Investigation Guidelines, which essentially sets out the interview procedure, does not provide any timeframe within which an interviewee shall be notified that she or he is invited to an interview, but it indicates that she or he should be notified in advance. The one day’s notice the complainant was given is understandable in a case of this nature. Moreover, as UNIDO points out, the complainant did not object to being notified at short notice, and, pursuant to paragraph 53 of the Investigation Guidelines, the EIO authorized an observer to be present at the interview at his request. The complainant […] when asked whether he had any objections or comments concerning how the interview was conducted, he replied, “No, absolutely not”. The Tribunal finds that […] the decision to interview the complainant one day after he was notified of the allegation of fraud against him […] reflect[s] bias, as the complainant alleges.
Keywords
disciplinary procedure; discretion; procedural rights during investigation; investigation
Consideration 14
Extract:
The complainant submits that there were procedural irregularities in the investigative process owing to the anonymity of the persons who made the allegations; no witness statements, transcripts or summaries of the interviews were provided, and there was no clear information regarding the allegations resulting in a breach of his due process rights. The case law has it that a staff member is entitled to due process before a disciplinary sanction is imposed. In this regard, he or she must be given, at the very least, an opportunity to test the evidence on which the charges are based, to give his own account of the facts, to put an argument that the conduct in question does not amount to misconduct and that, even if it does, it should not attract the proposed sanction (see Judgment 3137, consideration 6, and the case law referred to therein). Importantly, however, in light of the complainant’s foregoing pleas concerning the violation of due process, it is notable the Tribunal determined, in consideration 22 of Judgment 4615, that the right of defence of a complainant was not affected by the fact that the officials heard as witnesses were not named; it was sufficient for the complainant to know the content of the statements and it was not necessary for her to know the witnesses’ names; that furthermore, the Advisory Board redacted some names for reasons of confidentiality, since some officials feared retaliation by the complainant, which was a reasonable step to strike a balance between the right of defence of the accused person and the right of the witnesses to be protected against retaliation.”
Reference(s)
ILOAT Judgment(s): 3137, 4615
Keywords
due process; disciplinary procedure; procedural rights during investigation
|
