UNAT Held or UNDT Pronouncements
The Tribunal held:
a. The evidence demonstrated that the Applicant was not credible, particularly in his denial of misconduct during the incident in the Complainant’s container.
b. The facts upon which the disciplinary measure was based had been established by clear and convincing evidence.
c. The established facts about the Applicant’s behaviour in the Complainant’s container room that evening amounted to misconduct.
d. The disciplinary sanction imposed on the Applicant was proportionate.
e. The Applicant's due process rights were not violated during the UNHCR Inspector General’s Office investigation of his misconduct.
Decision Contested or Judgment/Order Appealed
The Applicant contested his separation from service with compensation in lieu of notice and without termination indemnity for sexual misconduct, in accordance with staff rule 10.2(a)(viii).
Legal Principle(s)
According to art. 9.4 of the Tribunal’s Statute, in reviewing disciplinary cases,the Dispute Tribunal shall consider the record assembled by the Secretary-General and may admit other evidence to make an assessment on whether the facts on which the disciplinary measure was based have been established by evidence; whether the established facts legally amount to misconduct; whether the applicant’s due process rights were observed; and whether the disciplinary measure imposed was proportionate to the offence.
When judging the validity of the Secretary-General’s exercise of discretion in administrative matters, the Dispute Tribunal determines if the decision is legal, rational, procedurally correct, and proportionate. The Tribunal can consider whether relevant matters have been ignored and irrelevant matters considered, and also examine whether the decision is absurd or perverse.
Sexual harassment is any unwelcome sexual advance, request for sexual favour, verbal or physical conduct or gesture of a sexual nature, or any other behavior of a sexual nature that might reasonably be expected or be perceived to cause offence or humiliation to another.
The Administration has wide discretion in applying sanctions for misconduct but at all relevant times must adhere to the principle of proportionality.
The Tribunal can only consider the sanction to be unlawful if it exhibits obvious absurdity or flagrant arbitrariness.
The Organisation is entitled and obliged to pursue a severe approach to sexual harassment. The message needs to be sent out clearly that staff members who sexually harass their colleagues normally should expect to lose their employment.