51ÁÔÆæ

The UNAT held that there was a preponderance of evidence that the staff member was a passenger in a clearly-marked UN vehicle in which acts of a sexual nature took place as it circulated in a heavily-trafficked area of the city. His conduct constituted an exceptional circumstance in terms of Section 11.4(b) of ST/AI/2017/1, especially considering the serious and grave nature of the conduct in which he was involved, captured on the video clip which was circulated widely, causing significant harm to the reputation and credibility of the Organization. His placement on ALWOP was a reasonable...

The UNAT held that there was no merit to the staff member¡¯s motion to strike from the record the Secretary-General¡¯s response to a UNAT order requesting information. The UNAT found that the UNDT had not erred in its determination that the available information established on a balance of probabilities that the staff member had engaged in the alleged misconduct justifying his placement on ALWOP. The video clip, circulated on social media and elsewhere, the equivocal concession (later to become an unequivocal admission) to being the person in the vehicle and the identification evidence alone...

AAA appealed and the Secretary-General cross-appealed. The UNAT disagreed with the UNDT¡¯s position that AAA could not be required to report a rape allegation ¡°which he heard from another person who attended court¡± and that Section 4.1 of ST/AI/2017/1 ¡°does not apply to an individual who merely hears second-hand about a case of misconduct since much of what such a person has to report would be hearsay and possibly misleading and devoid of the kind of detail the rule is seeking to elicit from the staff member¡±. This approach erroneously imposes a requirement that the staff member must have a...

The Tribunal found that there were severe failures in affording the Applicant due process during the investigation. After first interviewing her as a non-subject, SIU later decided that she would be a subject of the investigation but did not then afford her the due process entitlements under section 10 of ST/AI/2017/1. While there was procedural unfairness to the Applicant, inefficiency and a lack of reporting transparency; there was no due process failing on the part of the decision-maker since her decision expressly considered not only the SIU investigation report but also the Applicant¡¯s...

The allegations in the Applicant¡¯s complaint squarely [fell] in the realm of workplace disagreements about the normal exercise of managerial authority. Section 1.1 of ST/SGB/2019/8 states that ¡°[d]isagreement on work performance or on other work-related issues is normally not considered prohibited conduct and is not dealt with under the provisions of the present bulletin but in the context of performance management¡±. The responsible official¡¯s conclusion that it was unlikely that an investigation would reveal sufficient evidence to further pursue the matter as a disciplinary case (section 5.5...

The Tribunal found that the use of the investigation report was not subject to the confidentiality agreement between the parties; it was an autonomous document, which was lawfully used in court. The decision did not constitute a disciplinary measure. It was taken pending the completion of the disciplinary process and was without prejudice to the Applicant¡¯s rights. More than one circumstance warranting the placement of the staff member on ALWP occurred. The Applicant could be dismissed or separated from service with the United Nations for breach of the duty of trust and confidence, in...

There are incidents on which the Applicant had no direct knowledge. Consequently, he has no standing in filing a complaint of prohibited conduct in relation to them.

It was inappropriate for the Director, DA, UNOG, to play an instrumental role in the constitution of the investigation panel considering that he was the decision-maker in relation to one alleged incident, was a material witness in the investigation and was highly likely to be interviewed by the investigation panel. Several factors cumulatively gave rise to a reasonable perception of a conflict of interest on the part of a panel...

Scope of judicial review and the contested decision The Applicant described the contested decision as a failure to implement ¡°measures to promote a harmonious work environment and protect personnel from prohibited conduct through preventive measures¡±. As remedies, the Applicant sought damages for moral harm and emotional distress resulting from the Administration¡¯s breach of its duty to ensure a harmonious work environment. Accordingly, the Applicant seeks to contest the Administration¡¯s failure to take appropriate measures to promote a harmonious work environment and protect him from...

The administrative decision to close a staff member¡¯s complaint with no disciplinary action produces direct legal consequences affecting his/her terms and conditions of appointment. Moreover, when the claim concerns issues covered by ST/SGB/2008/5, the staff member is entitled to certain administrative procedures. If he or she is dissatisfied with their outcome, he or she may request judicial review of the administrative decisions taken. Accordingly, the application is receivable in its entirety.
The Panel did not comply with its duty to take the necessary steps to obtain the testimony of one...

UNAT rejected Mr. Valme¡¯s claim that the allegation of sexual exploitation and abuse had not been established against him, on grounds that any consideration about the complaint of sexual abuse was beyond the scope of the case, because his application concerned other prohibited conduct that came to light during the investigation. UNAT found no merit in Mr. Valme¡¯s contention that the UNDT failed to consider the totality of the evidence and referred to it in a selective way, thereby displaying bias. UNAT found that it was inherent to the principle of judicial persuasion that courts and...