UNAT Held or UNDT Pronouncements
The UNAT held that the former staff member committed sexual harassment towards the Complainant by: i) entering her accommodation without invitation, hugging, kissing, and licking her forehead without her consent, reclining her on her bed to lie next to him, and refusing to leave when asked; and ii) telling her the following day that she had been unable to sleep because she had been thinking of him.
The UNAT found that the UNDT had provided a clear and reasoned analysis of the witnesses’ credibility.It concluded that the UNDT’s determination that certain discrepancies in the Complainant’s evidence did not undermine her overall credibility was neither unsupported by the evidence nor manifestly unreasonable.It further found the testimony of four outcry witnesses to be credible and held that the UNDT properly characterized the inconsistencies between their testimony and that of the Complainant as innocent mis-recollections on extraneous details.
As for the former staff member, the UNAT found that he lacked credibility.It held that an e-mail exchange, occurring shortly after the incidents in question, in which the Complainant stated that the former staff member’s behaviour was inappropriate and unwanted, and his response offering his “sincere apologies”, supported the allegations.
The UNAT also held that the UNDT correctly denied the former staff member’s request for production of CCTV footage, finding it irrelevant, as the CCTV system was inoperable at the material time and, in any event, the incident had occurred outside the coverage of the CCTV system.
The UNAT concluded that the sanction imposed was proportionate to the gravity of the misconduct.
The UNAT dismissed the appeal and affirmed Judgment No. UNDT/2025/015.
Decision Contested or Judgment/Order Appealed
A former staff member of the 麻豆APP High Commissioner for Refugees (UNHCR) contested the decision to impose on him the disciplinary measure of separation from service, with compensation in lieu of notice and without termination indemnity, for sexually harassing the Complainant.
In its Judgment No. UNDT/2025/015, the UNDT dismissed the former staff member’s application, finding that the contested decision was lawful.
Former staff member appealed.
Legal Principle(s)
The Administration bears the burden of establishing the facts underlying the alleged misconduct. If the misconduct results in termination or separation from employment, the Administration must establish the underlying facts by clear and convincing evidence. Clear and convincing proof requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt; it means that the truth of the facts asserted is highly probable. To meet this standard, there must be very solid support for the finding, including direct evidence of events, or evidential inferences that can be properly drawn from other direct evidence.
Some degree of deference should be given to the factual findings by the UNDT as the court of first instance, particularly where oral evidence is heard.In order to overturn a finding of fact by the UNDT, the UNAT must be satisfied that the finding is not supported by the evidence or that it is unreasonable. Minor gaps or immaterial inconsistencies in recollection, particularly regarding events occurring in a confined, stressful context, do not of themselves negate credibility, especially if those inconsistencies can be reasonably explained or are immaterial.
The Administration has wide discretion in determining sanctions for misconduct. The Appeals Tribunal will only overturn a disciplinary measure where it is excessive, unreasonable, or reflects obvious absurdity or arbitrariness. Sexual misconduct is treated with particular seriousness in the Organization, and both the General Assembly and the Security Council have consistently endorsed a zero-tolerance approach. Separation from service is also expressly contemplated as a permissible disciplinary measure under Staff Rule 10.2.