UNDT/2024/106, Ngigi
The Tribunal held:
1. The Applicant repeatedly engaged in attempts of corruption by requesting money from at least six refugees in exchange for promising UNHCR services that should have been provided without charge. As a consequence, the decision to dismiss the Applicant was lawful.
2. The facts which the Applicant was accused of were proved in a consistent and unequivocal manner, and the Respondent fulfilled his burden to prove that the Applicant took bribes from some refuges, or at least that she asked for them.
3. The disciplinary measure was not based solely on anonymous statements. The statements by identified witnesses were sufficient to substantiate the accusations against the Applicant. Some witnesses were clearly identified, and their testimony sufficed to ground the accusations
in the case.
4. The multiple instances of corruption committed by the Applicant were seriously prejudicial to UNHCR’s work and reputation, and anonymity was necessary to ensure the safety of the witnesses.
5. The facts the Applicant is accused of were extremely serious and totally incompatible with the position of a staff member of an international organization. A consideration of the facts in their repetition during years justifies a strong reaction by the Organization with the most severe
disciplinary sanction.
6. The Applicant’s due process rights were fully respected.
7. The Applicant’s assertion that she was not allowed to cross-examine the witnesses had no merit as there is no right of cross-examination at the investigation stage and no witnesses were called to testify during the judicial proceedings.
The Applicant contested the UNHCR High Commissioner’s decision to dismiss her from service pursuant to staff rule 10.2(a)(ix) for misconduct.
In disciplinary cases “when termination is a possible outcomeâ€, the evidentiary standard is that the Administration must establish the alleged misconduct by “clear and convincing evidenceâ€, which “means that the truth of the facts asserted is highly probable.
Clear and convincing evidence can either be “direct evidence of events†or may “be of evidential inferences that can be properly drawn from other direct evidenceâ€.
“Clear†evidence is that the evidence of misconduct must be unequivocal and manifest and “convincing†requires that this clear evidence must be persuasive to a high degree, appropriate to the gravity of the allegation against the staff member and in light of the severity of the consequence of its acceptance.
The Administration bears the burden of establishing that the alleged misconduct for which a disciplinary measure has been taken against a staff member occurred.
Anonymous statements may be used as evidence in disciplinary matters in exceptional cases: the use of statements gathered in the course of the investigation from witnesses who remained anonymous throughout the proceedings, including before the Tribunal, cannot be excluded as a matter of principle from from disciplinary matters, even though anonymity does not permit confrontation with the witnesses themselves but only with the person who recorded the statements of the latter.
Not disclosing the identity of a witness is a reasonable measure to protect a witness, a vulnerable refugee, in accordance with paragraph 7.4(c) of UNHCR/AI/2018/18/Rev.1.
In the absence of evidence indicating that the witnesses colluded and provided false statements, the United Nations Appeal Tribunal has consistently refrained from presuming dishonesty.