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21. The decision to dismiss the Applicant without termination indemnity
or payment in lieu of notice was discriminatory, and therefore unlawful. The
Respondent referred to a few cases in which UNDP allegedly dismissed staff
members in situations similar to that of the Applicant. The Respondent failed,
however, to provide full details of these cases so the Applicant is not in a
position to compare these cases to the instant case. Even if in these cases the
Respondent took a harsh line, this still fails to clarify why such a markedly
different approach was taken in the case of Eveline Herfkens.
22. In a letter dated 23 May 2008, Kemal Dervis wrote that during the period Eveline Herfkens was employed as a staff member by UNDP, the Government of the Netherlands provided her with financial benefits in the form of rent of a three room apartment in Manhattan, relocation from the Netherlands to New York in November 2002 and from New York to Maryland in January 2006, and a continuation of her enrolment with the Netherlands national pension scheme.
23. Kemal Dervis further noted that UNDP had provided Eveline Herfkens with a copy of the applicable UN Staff Regulations and Rules relating to her appointment and that she had signed an acknowledgement of having received them. Despite this, UNDP found that:
Click here to read the UN Tribunal decision... bit.ly/R8E2XO
22. In a letter dated 23 May 2008, Kemal Dervis wrote that during the period Eveline Herfkens was employed as a staff member by UNDP, the Government of the Netherlands provided her with financial benefits in the form of rent of a three room apartment in Manhattan, relocation from the Netherlands to New York in November 2002 and from New York to Maryland in January 2006, and a continuation of her enrolment with the Netherlands national pension scheme.
23. Kemal Dervis further noted that UNDP had provided Eveline Herfkens with a copy of the applicable UN Staff Regulations and Rules relating to her appointment and that she had signed an acknowledgement of having received them. Despite this, UNDP found that:
Ms. Herfkens appear[ed] to have unknowingly breached the Staff
Regulations, in good faith and without mal-intent.
and that
Ms. Herfkens [would] remain an advocate in the global effort to achieve the MDGs, and [that UNDP would] count on her continued support in this effort.
24. The Applicant submits that in contrast to Eveline Herfkens, she was a low level general service staff member, and that unlike Eveline Herfkens, she obtained no personal gain. In light of this, to excuse Eveline Herfkens, while dismissing the Applicant without termination indemnity or payment in lieu of notice, is discriminatory and unlawful.
25. The Respondent cannot rely on the Applicant’s failure to comply with her obligations during the investigation when the Respondent failed first to comply with his. From the outset of the investigation, she was considered a possible wrongdoer and the Organization was obliged to advise her that she had the right to secure the assistance of counsel. This omission amounted to a violation of her right to due process.
and that
Ms. Herfkens [would] remain an advocate in the global effort to achieve the MDGs, and [that UNDP would] count on her continued support in this effort.
24. The Applicant submits that in contrast to Eveline Herfkens, she was a low level general service staff member, and that unlike Eveline Herfkens, she obtained no personal gain. In light of this, to excuse Eveline Herfkens, while dismissing the Applicant without termination indemnity or payment in lieu of notice, is discriminatory and unlawful.
25. The Respondent cannot rely on the Applicant’s failure to comply with her obligations during the investigation when the Respondent failed first to comply with his. From the outset of the investigation, she was considered a possible wrongdoer and the Organization was obliged to advise her that she had the right to secure the assistance of counsel. This omission amounted to a violation of her right to due process.
43. The Respondent did not apply double-standards. According to the
letter dated 23 May 2008, sent by the then Administrator, UNDP, to the
Minister of Foreign Affairs of the Kingdom of the Netherlands, the UNDP
OAI finalized an investigation concerning Ms. Eveline Herfkens on 20 May
2008 who reportedly accepted financial benefits from her government while
being a staff member with UNDP. In this connection, the Applicant claimed that Ms. Herfkens was found to be in a conflict of interest, but that no
disciplinary action was taken against her. According to the Applicant, this
demonstrated that the Respondent applied double-standards.
44. The Respondent submits that the Applicant’s reference to the letter is of limited relevance in the context of her case. Ms. Herfkens’ appointment expired on 31 October 2007 and was not subsequently renewed. Ms. Herfkens was no longer a staff member when the investigation report of 20 May 2008 was purportedly issued. Thus, in light of the foregoing, UNDP could not possibly have initiated disciplinary proceedings against Ms. Herfkens as she was no longer a staff member.
44. The Respondent submits that the Applicant’s reference to the letter is of limited relevance in the context of her case. Ms. Herfkens’ appointment expired on 31 October 2007 and was not subsequently renewed. Ms. Herfkens was no longer a staff member when the investigation report of 20 May 2008 was purportedly issued. Thus, in light of the foregoing, UNDP could not possibly have initiated disciplinary proceedings against Ms. Herfkens as she was no longer a staff member.
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