UNAT Held or UNDT Pronouncements
The UNAT held that the UNDT correctly found that the contested decision was lawful. It concluded that the preliminary assessment of the former staff member’s complaint revealed no sufficient grounds to indicate that his FRO’s alleged unsatisfactory conduct could amount to misconduct, and, as a result, there was no likelihood that an investigation would reveal sufficient evidence to further pursue the matter as a disciplinary case.
The UNAT also found that the UNDT correctly identified the decision subject to judicial review and properly considered and rejected, as a preliminary matter, Mr. Castelli’s alleged right to have his requests for flexible working arrangements approved.
The UNAT dismissed the appeal and affirmed Judgment No. UNDT/2024/077.
Decision Contested or Judgment/Order Appealed
A former staff member of the United Nations Interim Force in Lebanon (UNIFIL) contested the decision of the Administration not to convene a fact-finding panel and to close his complaint of unsatisfactory conduct filed against his First Reporting Officer (FRO), in which he alleged that his FRO abused his authority by denying and unduly delaying the approval of his requests for flexible working arrangements (FWAs).
In its Judgment No. UNDT/2024/077, the UNDT dismissed the former staff member’s application, finding that the contested decision was lawful.
Former staff member appealed.
Legal Principle(s)
The authority to render a judgment gives the Judge an inherent power to individualize and define the administrative decision impugned by a party and to identify what is in fact being contested and subject to judicial review.
The instigation of disciplinary charges against a staff member is the privilege of the Organization itself, and it is not legally possible to compel the Administration to take disciplinary action. The Administration has a degree of discretion as to how to conduct a review and assessment of a complaint and whether to undertake an investigation regarding all or some of the allegations. Only in particular situations (i.e., in the case of a serious and reasonable accusation) does a staff member have a right to an investigation against another staff member which may be subject to judicial review.
A fact-finding investigation may only be undertaken after a preliminary assessment establishes sufficient grounds to initiate an investigation. This is because the mere undertaking of an investigation can have a negative impact on the staff member concerned. Only misconduct on the part of a staff member can lead to the imposition of disciplinary measures; consequently, if it becomes clear during the preliminary assessment that there is no misconduct, it is not necessary to initiate a fact-finding investigation.
The appeals procedure is corrective in nature and is not an opportunity for a dissatisfied party to reargue his or her case. A party cannot merely repeat on appeal arguments that did not succeed in the lower court. Rather, he or she must demonstrate that the court below has committed an error of fact or law warranting intervention by the UNAT.
The UNDT does not have to address every claim made by a litigant, especially when the claim has no merit.