51ÁÔÆæ

Standard of proof in disciplinary cases - In disciplinary proceedings it is well settled now that the evidence must be clear and convincing and that would include identification evidence. Evidence of misconduct must be clear and convincing. Findings of fact by the trial judge - As a trier of facts, a first instance judge has the means and power to assess the veracity and accuracy of a witness. The findings of fact of a trial judge should rarely be reversed on appeal unless the findings are so perverse that no reasonable person would have come to the conclusions reached on the facts by the...

The Tribunal found that there was clear and convincing evidence that on the morning of 9 February 2015, at his office, the Applicant commited misconduct. The established facts legally amounted to misconduct, in violation of the norms consistently upheld by the Organization since at minimum 1992, where sexual harassment was described as unacceptable behaviour for the staff of the United Nations, and reiterated through, among other, outlawing, in 2003, sexual exploitation and abuse as serious misconduct warranting a summary dismissal, and through a detailed anti-harassment and abuse of authority...

UNDT was satisfied, based on the evidence, that the Applicant was prepared to use his power and influence to make life in the United Nations difficult for the Complainant if she pursued her complaint against him. UNDT held that this evidence satisfied the clear and convincing requirement. The evidence also showed that, during the investigation, the Applicant was afforded the due process rights he was entitled to. UNDT held that the disciplinary action of summary dismissal in this matter was justified and proportionate. UNDT dismissed the application.

UNDT accepted the Applicant¡¯s witnesses¡¯ as evidence as relevant and admissible. The witnesses generally addressed theatmosphere in which the United Nations Interim Security Force for Abyei (UNISFA) staff in Abyei functioned, including the reaction of the principal chiefs of the Dinka tribe to policy changes which they did not like. This raised issues to be considered in assessing the complaints of Complainants 1 and 2. Complainants 1 and 2 did not sign or indicate the veracity of their statements. This failure to authenticate the statements created doubt as to the veracity of the statements...

The Applicant¡¯s attempt to hug V01 did not on its own qualify as an unwelcome sexual advance or request for sexual favour or verbal or physical conduct or gesture of a sexual nature or any other behaviour of a sexual nature. The Applicant¡¯s asking for V01¡¯s room number on multiple occasions did not constitute sexual harassment. The facts did not establish sexual harassment as defined in ST/SGB/2008/5 and as interpreted in various jurisprudence. The Respondent¡¯s investigations were skewed toward finding a case for sexual harassment regardless of the inadequacy of evidence to substantiate the...

UNDT held that the Applicant¡¯s due process rights were respected because she was afforded the opportunity to provide comments related to the administrative measures applied at every step of the process and was represented by Counsel. She also did not challenge the adversarial examination of the allegations that was undertaken. UNDT found that the facts in support of the administrative measures imposed were established as per the applicable standard of proof. UNDT held that the administrative measures imposed on the Applicant were rational and proportionate to the established facts, as well as...