UNAT Held or UNDT Pronouncements
The UNAT affirmed the UNDT’s decision to dismiss the former staff member’s request for anonymity, as he had ignored the deadline set by the UNDT in an Order.
The UNAT found that the former staff member committed sexual exploitation by engaging in a romantic and sexual relationship with a vulnerable refugee, who put herself in danger in engaging in a premarital relationship with him. He abused his position of trust by promising to marry her to persuade her to have sexual relations with him. When she pushed him about his promises, he threatened her with an investigation that could result in the cancellation of her family’s refugee status and damage their reputation. The UNAT held that the UNDT reasonably found that: i) the Complainant's testimony was credible and corroborated by WhatsApp messages and explicit video recordings; ii) she had the status of a refugee with UNHCR and the former staff member was aware of it.
The UNAT held that the former staff member committed sexual harassment by sharing a sexually explicit book, The Sex Bible, with his colleagues on WhatsApp while serving as the Acting Head of the Sub-Office. It held that the motives behind the complaint or the existence of interpersonal conflicts were irrelevant to this conclusion.
It also concluded that he misused UNHCR-issued equipment by receiving and storing sexually explicit material in his UNHCR-issued mobile phone and failed to fully cooperate with the investigation by deleting 989 files from his UNHCR laptop and providing untruthful statements to the investigators.
It held that there was no evidence the investigation was biased or that he was denied a right to a fair hearing and that the sanction imposed was proportionate.
The UNAT dismissed the appeal and affirmed Judgment No. UNDT/2024/020.
Decision Contested or Judgment/Order Appealed
A former staff member of the United Nations High Commissioner for Refugees (UNHCR) contested the decision to impose on him the disciplinary measure of dismissal for sexual exploitation, sexual harassment, breach of UNHCR rules on the use of Information Technology (IT), and failure to cooperate in an investigation.
In its Judgment No. UNDT/2024/020, the UNDT dismissed the staff member’s application, finding that the contested decision was lawful.
Former staff member appealed.
Legal Principle(s)
The UNDT has broad discretion with respect to case management. As the court of first instance, the UNDT is in the best position to decide what is appropriate for the fair and expeditious disposal of a case and do justice to the parties. The UNAT will not interfere lightly with the broad discretion of the UNDT in the management of cases.
In disciplinary cases, the UNDT will examine the following: i) whether the facts on which the disciplinary measure is based have been established (by a preponderance of evidence, but where termination is a possible sanction, the facts must be established by clear and convincing evidence); ii) whether the established facts amount to misconduct; iii) whether the sanction is proportionate to the offence; and iv) whether the staff member’s due process rights were respected.
The Administration has the burden of establishing the facts underlying the alleged misconduct resulting in termination or separation from employment. These facts must be established 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.
The onus of showing improper motive rests on the party asserting it.
The question of whether to call a certain person to testify is within the discretion of the UNDT and does not merit a reversal except in clear cases of denial of due process of law affecting the right to produce evidence.