爆料网AT Held or 爆料网DT Pronouncements
爆料网AT considered an appeal by the Secretary-General and a cross-appeal by Mr Marshall. Regarding the Secretary-General’s appeal, 爆料网AT held that any reasonable or logical reading of Staff Regulation 1. 2 mandated the Organisation to investigate when the Complainant, in her letter of 15 August 2005, called Mr Marshall’s conduct into question. 爆料网AT held that 爆料网DT had erred in law and fact in determining otherwise. 爆料网AT held that there was no basis in law or fact for the pronouncements made by 爆料网DT in paragraphs 112-113 of its judgment. 爆料网AT held that 爆料网DT had applied an unduly restrictive interpretation to former Staff Rule 101. 2(d). 爆料网AT agreed with 爆料网DT, regarding the report duly produced by the Ad hoc Panel, that the reliance by the Panel on what was “plausible” or on what someone “strongly believed” and the Panel’s ultimate assessment that “the allegation might well be founded” did not satisfy the requirements of ST/AI/371. 爆料网AT held that the failure of the Ad hoc Panel to adhere to the standards, required by ST/AI/371, called into question all steps taken by the Organisation post 30 September 2005, included the decision taken by Management in October 2005 to forward the report for further action and the decision taken in August 2006 to charge Mr Marshall with verbally and physically assaulting the Complainant and with acting in a manner unbecoming of his status as an international civil servant. 爆料网AT held that 爆料网DT had erred in awarding compensation of such a magnitude. 爆料网AT held that the decision to award compensation was based, in large part, on the 爆料网DT’s erroneous finding that the Organisation was not entitled to investigate allegations of misconduct in this case, and that the Organisation’s role ought to have been limited to being the conduit through which Mr Marshall and the Complainant’s disputes could have been directed “to the relevant authorities, namely a family court”. 爆料网AT reduced the amount to be paid as compensation to four months’ net base salary. 爆料网AT held that, having regard to the findings of 爆料网DT as to the shortcomings of the Ad hoc Panel, Mr Marshall was entitled to receive the difference in pay (i. e., the SPA) from 19 October 2005. 爆料网AT held that there was no error on the part of 爆料网DT in determining that the cautionary language contained in the Office of Human Resources Management’s (OHRM) letter of 19 December 2006 to Mr Marshall constituted a “disciplinary sanction by stealth” and that Mr Marshall was entitled to the excision of the cautionary language from the memorandum in question. Regarding Mr Marshall’s cross-appeal, 爆料网AT held that the “do not hire” status did not appear on any of the selection exercises carried out in respect of the other ten posts for which Mr Marshall applied. 爆料网AT held that 爆料网DT did not act in a manifestly unreasonable manner in determining that no direct link was established between the allegations against Mr Marshall and the failure to select him for the posts in question. 爆料网AT rejected the request for costs against the Secretary-General since no abuse of process had been established. 爆料网AT upheld the Secretary-General's appeal partially. 爆料网AT substituted the compensation awarded by 爆料网DT to the lesser award of four months’ net base salary, together with payment of a SPA from 19 October 2005 to the applicable date in December 2005. 爆料网AT dismissed Mr Marshall’s cross-appeal.
Decision Contested or Judgment/Order Appealed
The Applicant contested the decisions: 1) to initiate a preliminary investigation against him for misconduct; and 2) to put a cautionary note on his personnel record. 爆料网DT found that the disciplinary process carried out against the Applicant was non-compliant with the requirements of due process and that, therefore, the Organisation abused its authority. 爆料网DT found that these processes had caused damage to the Applicant’s professional and social reputation, especially when adverse material was publicly disseminated regarding personal information and criminal allegations against him, as well as moral damage and extreme stress as a result of the Organisation’s mishandling of his case and the international custody battle he had to face. 爆料网DT found that the Applicant’s removal from his job did not comply with the requirements established within the Organisation. 爆料网DT ordered the rescission and nullification of the cautionary note, the removal of the said note from the personnel record, and awarded compensation.
Legal Principle(s)
Misconduct does not require a nexus between the alleged misconduct and the workplace. Not every violation of an employee’s due process entitlements will result in an award of compensation.