UNAT Held or UNDT Pronouncements
The UNAT held that the UNDT committed no error in its conduct of the hearing.In this regard, the UNAT observed that UNICEF Uganda was requested to provide a suitable venue from which the UNDT Judge could conduct the hearing solely for connectivity reasons, and that the Secretary-General’s counsel participated from the United Kingdom and was therefore, contrary to the former staff member’s contention, not in proximity to the Judge.It further found that the fact that the Judge did not keep her camera on at all times during the hearing did not demonstrate that she was not appropriately engaged in the hearing.
The UNAT concluded that the decision not to hear A.K.’s testimony did not amount to a denial of due process, since the evidence was not of such a material nature as would have affected the outcome of the case, given that both V01 and the former staff member testified directly in relation to the allegations and A.K.’s statement to the investigators had been considered vague.
As for the UNDT’s refusal to recall V01 for further cross-examination, the UNAT found that it did not impact on the fairness of the process or the UNDT’s assessment of V01’s credibility.It further found that the former staff member was not entitled to recall V01 to cover terrain which he had omitted when he first cross-examined her.
On the merits, the UNAT rejected the former staff member’s contention that the UNDT failed to assess the evidence of the witnesses properly or was biased against him.On the contrary, it held that the UNDT carefully considered the credibility of both V01 and the former staff member.
The UNAT dismissed the appeal and affirmed Judgment No. UNDT/2025/071.
Decision Contested or Judgment/Order Appealed
A former UNICEF staff member contested the Administration’s decision to impose on him the disciplinary measure of separation from service with compensation in lieu of notice and with termination indemnity, as well as the inclusion of his name in the ClearCheck database, for sexually harassing V01.
In its Judgment No. UNDT/2025/071, the UNDT dismissed the former staff member’s application.
Former staff member appealed.
Legal Principle(s)
The UNDT has broad discretion in case management issues. It may determine the admissibility of evidence, order its production, require any person to provide any document or information that appears to it to be necessary, call and recall witnesses, and at any time issue any orders or directions appropriate for the fair and expeditious disposal of the case and to do justice to the parties.
Case management decisions will not be interfered with lightly on appeal. Interference will be warranted on appeal only where it is clear that there has been a denial of due process, or where an error has impaired a party’s right to present their case or produce necessary evidence and has materially affected the outcome of the case.
Where an error in procedure on the part of the UNDT is alleged, in order for the appeal to be successful, that error must be shown to have affected the outcome of the case.
The test for bias requires that it be shown that a reasonable person, fully informed of all relevant circumstances, would apprehend that there was conscious or unconscious bias on the part of the judge because of which the judge could not decide the case fairly.
A finding of sexual harassment requires proof that the conduct: i) occurred; ii) falls within the legal understanding of sexual harassment and is of a sexual nature; iii) was unwelcome and might reasonably be expected or perceived to cause offence or humiliation; and iv) interfered with work or created an intimidating, hostile, or offensive work environment. The conduct does not have to be intentional to be of a sexual nature. It can arise from a single incident and does not need to cause either harm or any concrete or palpable result.