UNDT/2024/057, Kiingi
the Tribunal rules in favour of the Applicant, concluding that she acted in good faith in her efforts to secure her son’s medical treatment and in the subsequent submission of medical invoices for reimbursement.
The Tribunal finds that the contested decision terminating the Applicant’s employment, was, therefore, unlawful.
A witness investigator's act of following the testimony of a Respondent witness while she was testifying contravened the ethical and procedural standards expected of a witness by decision to disregard this fundamental procedural rule not only demonstrates a potential bias but also undermined the impartiality and reliability of his subsequent testimony. This action further calls into question the objectivity he is expected to uphold in his professional capacity. The Tribunal must therefore consider these implications when evaluating the overall weight and trustworthiness of the investigator/s contributions to the case at hand. Such behaviour is unacceptable for a professional investigator, whose primary duty is to uncover and present the truth transparently. Considering these findings, the Tribunal deems it appropriate to afford less credibility to Mr. Munga’s testimony, opting to place greater reliance on the testimonies of the medical professionals and corroborating documentary evidence that support the Applicant’s claims.
The Applicant filed an application with the United Nations Dispute Tribunal sitting in Nairobi to challenge the Respondent’s decision to separate her from service of the Organization in accordance with staff rule 10.2(a)(ix). This disciplinary measure was imposed on her following a finding of misconduct.
The Applicant principally seeks the rescission of the contested decision and reinstatement to her former post. She also appeals for the sanction of reimbursing medical expenses that were disbursed be set aside.
The notion that the Applicant was obliged to seek treatment at a facility with established payment arrangements with UNHCR is fundamentally flawed. These recommendations were presented as options, not mandatory instructions. The Applicant did not breach any compulsory rule. The medical insurance policy’s flexibility regarding treatment options acknowledges that unique individual circumstances, especially during a public health crisis like Covid-19, might necessitate deviations from standard arrangements.
Given the substantial evidence presented by the Applicant side, along with the deficiencies in the Respondent’s verification process, this Tribunal finds that the Respondent did not successfully discharge its burden of proof concerning the allegations of forgery and fraudulent activities associated with the medical invoices. The Tribunal finds that there is no evidence to support that the invoices submitted by the Applicant are not authentic.
the Tribunal DECIDES:
a. To rescind the contested decision in its entirety;
b. Should the Secretary-General decide against reinstating the Applicant, the Tribunal sets compensation in lieu of reinstatement at two years’ net-base salary; and
c. To set aside the sanction of recouping from the Applicant the medical expenses that were disbursed.