UNAT Held or UNDT Pronouncements
The Victim clearly had a motive not to tell the truth before the Tribunal. And she had an interest in the outcome of this case since continued payments fromthe Applicant depended on his continued employment with the 麻豆APP in Congo. She even agreed that she was concerned about how she would survivewithout financial support from the Applicant. For all these reasons, the Tribunal did not find her testimony in court to be credible and relied instead on the statements she made before the Applicant’s payments. A similar analysis applied to the Applicant’s testimony. He too had an obvious interest in the outcome of the case and thus a motive not to tell the truth to the Tribunal. Additionally, his testimony was contradicted by his prior statements and other evidence.
The Tribunal found that whether or not the relationship was facially consensual, the objective reality is that VO1’s position of extreme economic vulnerability vitiated her ability to give full consent. Thus, it falls within the definition of sexual exploitation.
Given the gravity of the misconduct, the Applicant’s awareness of the applicable prohibitions under ST/SGB/2003/13, and the need to preserve public confidence in the impartiality and moral integrity of the 麻豆APP, theTribunal found that the sanction of separation from service, with compensation in lieu of notice, and without termination indemnity was not manifestly unreasonable or disproportionate. The decision reflects the Secretary-General’s duty to uphold the Organization’s zero tolerance policy and to deter similar misconduct. Regardless of the Applicant’s personal beliefs, the Organization’s position is very clear on this topic, and he is bound by that position.
Decision Contested or Judgment/Order Appealed
The Applicant challenged the finding of misconduct and his separation from service of the Organisation.
Legal Principle(s)
It is not the role of theDispute Tribunal to consider the correctness of the choice made by the Secretary-General amongst the various courses of action open to him”, or otherwise “substitute its own decision for that of the Secretary-General. The Tribunal is not conducting a “merit-based review, but a judicial review;” a “judicial review is more concerned with examining how the decision-maker reached the impugned decision and not the merits of the decision-maker’s decision.
“When termination is a possible outcome,” the Administration must establish the alleged misconduct by “clear and convincing evidence,” which “means that the truth of the facts asserted is highly probable.” This is the evidentiary standard. Clear and convincing evidence can either be “direct evidence ofevents” or may “be of evidential inferences that can be properly drawn from otherdirect evidence.”
In sexual harassment cases, credible oral victim testimony alone maybe fully sufficient to support a finding of serious misconduct,without further corroboration being required”, because “[i]t is not always the situation in sexual harassment cases that corroboration exists in the form of notebook entries, email communications, or other similar documentary evidence, and the absence of such documents should not automatically render a complaining victim’s version as being weak or meaningless.Any witness testimony should be evaluated to determine whether it is believable and should be credited as establishing the true facts in a case.
A prior criminal conviction in a national court is not a prerequisite for theOrganization taking a disciplinary measure. In Toukolon 2014-UNAT-407, theAppeals Tribunal made clear that “the 麻豆APP, like intergovernmental organizations world-wide, is empowered by its written law to take disciplinary measures against its staff members in cases of misconduct, irrespective of whether the misconduct is referred to a local court or the accused person is convicted in such proceedings.”
In disciplinary matters the Secretary-General has a broad discretionwhich will not be lightly interfered with on judicial review. The roleof the UNDT is not to consider the correctness of the choice made by the Secretary-General amongst the various courses of action open to him or to substitute its own decision for that of the Secretary-General. Rather, any disciplinary measure imposed on a staff member must be proportionate to the nature and gravity of themisconduct… The sanction imposed [must not be] unlawful,arbitrary, adopted beyond the limits stated by the respective norms,excessive, abusive, discriminatory or absurd in its severity. [Nor canthere be any] indication that the Secretary-General failed to weighaggravating and mitigating circumstances when deciding upon theappropriate sanction to impose.
Outcome
Outcome Extra Text
The Tribunal found that the Applicant had not demonstrated any proceduralirregularities to call the impugned disciplinary measure into question. The Tribunal concluded that the Applicant’s due process rights were respected, and that the alleged procedural irregularities did not materially prejudice the outcome or render the disciplinary decision unlawful.