惇蹋厙DT/2010/053

惇蹋厙AT Held or 惇蹋厙DT Pronouncements

The charge relating to the unauthorized use of the 惇蹋厙ON ID card to gain access to the 惇蹋厙 premises in Nairobi was properly brought. However, before a conclusion was reached, the decision maker was required not simply to ask whether, as a question of fact, tax and duty free purchases were made by the staff member but also whether by doing so the staff member had the mens rea to abuse 惇蹋厙 privileges and immunities or whether he genuinely believed, on reasonable grounds that he was entitled to have access to the 惇蹋厙 Commissary. Based on the evidence, the Tribunal found that on the balance of probabilities, the Applicant did not have the intention to defraud and as such, the Respondent did not have the necessary evidential basis to prove a charge of serious misconduct within the meaning of staff rule 110.1. The Applicant was unfairly dismissed as the charge of serious misconduct was not well-founded.

Decision Contested or Judgment/Order Appealed

The Applicant was employed with the 惇蹋厙ICEF Kenya Country Office from 1990 to 2002 and was issued a 惇蹋厙ON ID card. In 2003, he was reassigned to the 惇蹋厙ICEF office in Windhoek, Namibia, but retained his 惇蹋厙ON ID card, which he used to access the 惇蹋厙ON premises and the 惇蹋厙 Commissary. In September 2008, the Applicant＊s 惇蹋厙ON ID card was confiscated by 惇蹋厙ON Security on the basis that the card was invalid. Based on the outcome of an investigation by the Office of Internal Audit, 惇蹋厙ICEF informed the Applicant, by a letter dated 31 August 2009, that he was to be separated from service without notice for serious misconduct, namely, for abuse of 惇蹋厙 privileges and immunities in relation to his unauthorized use of the 惇蹋厙 Commissary. The Applicant contested the decision to separate him from service.

Legal Principle(s)

N/A

Outcome

Judgment entered for Applicant in full or in part

Outcome Extra Text

The Respondent is ordered to either rescind his decision and reinstate the Applicant and pay him for lost earnings or to compensate the Applicant for loss of earnings from the date of his separation to the date of the Judgment and to compensate him in the amount of two years＊ net base salary.

OAJ prepared this case law summary for informational purposes only. It is no official record and should not be relied upon as an authoritative interpretation of the Tribunals' rulings. For the authoritative texts, please refer to the judgment or order rendered by the respective Tribunal. The Tribunals are the only bodies competent to interpret their respective judgments, as provided under Article 12(3) of the 惇蹋厙DT Statute and Article 11(3) of the 惇蹋厙AT Statute. Any inaccuracies in the publication are the sole responsibility of OAJ, which should be contacted directly for any correction requests. To provide comments, don't hesitate to get in touch with OAJ at oaj@un.org.

The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.

Applicants/Appellants

Mmata

Entity

Case Number(s)

Tribunal

Registry

Date of Judgement