��ż���

The Tribunal defined the overall issues of the present case as follows:

Whether the Applicant wilfully misled the Organization

While there were many factual disagreements between the parties, including with respect to the details of the financial gains and dealings the Applicant was involved with, the Tribunal found that it was not necessary to resolve all those disputes during this exercise of judicial review. The Applicant admitted his extensive financial relationships with Mr. David Kendrick and that he failed to disclose these relationships to the Organization. These admissions were effectively a concession that he committed blatant misconduct.

The Tribunal did not conduct a deep analysis of the substantial financial gains that the Applicant received from his undisclosed financial arrangements and outside activities with Mr. Kendrick and his entities. It was sufficient to note that the Applicant agreed that he engaged in undisclosed and unauthorized outside activities that entailed personal financial arrangements between Mr. Kendrick and himself (and/or his family) resulting in financial benefits of hundreds of thousands, if not millions, of dollars. The Applicant also conceded that this could amount to a conflict of interest.

The Tribunal found that, indeed, the Applicant committed fraud against the Organization by leading it into multiple business partnerships with the Kendrick entities, with which he engaged in undisclosed and unauthorized outside activities, and from which he received several financial and material benefits.

The Tribunal was convinced that the Applicant intentionally misrepresented the investment “opportunities” with the Kendrick entities to the Organization by, inter alia, creating an exaggerated sense of urgency and need, concealing relevant information and minimizing the concerns of others to expedite the internal process of approval.

Was there a causal link between the Applicant’s actions and the financial loss of UNOPS?

The Tribunal determined that the Applicant’s personal financial relationships with Mr. Kendrick clearly interfered with the performance of his official duties and the integrity, independence and impartiality required of him in evaluating and proposing the Kendrick deals to UNOPS.

The Tribunal found that the evidence clearly and convincingly shows that the Applicant’s misconduct, including his conflicts of interest, caused the financial losses that UNOPS sustained. The failure to disclose the Applicant’s conflict of interest with Mr. Kendrick prevented the Organization from being aware of these conflicts and taking appropriate steps to mitigate their impact on UNOPS. Thereafter, every action that the Applicant took on behalf of UNOPS regarding Kendrick entities was tainted by his first transgression.

Thus, the Tribunal determined that the Applicant cannot avoid his responsibility for the Kendrick deals by claiming that the EAC+ and the ED approved the deals since he did not disclose to them the essential fact of his conflict of interest. Moreover, the alleged and potential co-responsibility of others in the matter does not remove or reduce the Applicant’s own liability.

As per the joint and several liability doctrine, the Applicant can be held responsible for the full amount of loss that UNOPS suffered, as he was. However, he may seek contribution elsewhere from any others deemed responsible as well.

What is the amount of the financial losses of UNOPS?

With respect to the amount of financial loss, the Tribunal found that the Applicant is to be held liable for the financial loss that the Organization suffered in connection with the Kendrick entities, and that the amount of loss attributable to him is USD58,800,000, which only consists of the principal capital that UNOPS gave to the Kendrick entities. This is the sum that UNOPS would not have allocated had the Applicant disclosed his conflict of interest with Mr. Kendrick.

Whether the disciplinary sanction was proportionate to the misconduct

The Tribunal agreed that the misconduct was unprecedented, causing enormous financial loss to UNOPS and tremendous damage to the reputation of UNOPS and the United Nations. Dismissal or termination without indemnities alone would not serve to punish the wrongdoer or deter others from similar wrongdoing. Indeed, financial misconduct calls for financial penalties in the form of a fine. The size of the fine imposed is outweighed by the financial benefits that the Applicant received from Mr. Kendrick and dwarfed by the monies that UNOPS lost.

Therefore, the Tribunal considered that the disciplinary sanction, including the fine, was proportionate to the misconduct.

Whether the withholding of the PF.4 form was proper and reasonable

Withholding the release of the separation notification was essentially the Administration’s last available effort to try to secure repayment. Given the amount of the Applicant’s indebtedness to the Organization, it was objectively impossible for the Organization to recover this debt against the Applicant’s salary and separation entitlements alone. Accordingly, the last resort test was sufficiently met, and the Tribunal considered that withholding the release of the separation notification in this case was a lawful exercise.

Whether there were any due process violations

The Tribunal found that the Applicant’s allegations in this respect were either not supported by evidence or not significant enough to impact the Applicant’s due process rights.

In view of the foregoing, the Tribunal decided that the amount of financial loss attributable to the Applicant was USD58,800,000 and rejected the application in its entirety as to all other claims.