UNAT Held or UNDT Pronouncements
The UNAT held that the facts were established by clear and convincing evidence. It held that the Complainant’s testimony was consistent with her earlier statements, except for the date of the incident. However, the correction of the date she made at the hearing was found to be in good faith and did not undermine her credibility. Her account was corroborated by two other staff members, M.V. and M.M., both of whom testified before the UNDT. The UNAT also held that the former staff member failed to show that these witnesses had any motive to falsely implicate him. It noted that the former staff member did not immediately deny the allegations when confronted by M.V., a failure that it considered significant.
The UNAT rejected the claim that the alleged failure to call eight staff members who resided in the guesthouse where the sexual harassment incident occurred to testify amounted to a serious procedural flaw. It observed that, according to both parties, those individuals had no knowledge of the incident. It also noted that the former staff member was given the opportunity to call witnesses but chose not to do so. Similarly, the UNAT rejected his allegations of bias against the investigators and held that: i) their failure to interview every witness did not constitute a violation of his due process rights, particularly as there was no relevant basis for them to be interviewed; and ii) their efforts to establish the date on which the sexual harassment incident occurred amounted to a proper attempt to determine the relevant facts.
Finally, the UNAT found the sanction imposed proportionate to the seriousness of the offence committed, despite the former staff member’s senior position and years of service.
The UNAT dismissed the appeal and affirmed Judgment No. UNDT/2024/034.
Decision Contested or Judgment/Order Appealed
A former staff member of the Office of the United Nations High Commissioner for Refugees (UNHCR) contested the decision to impose on him the disciplinary measure of dismissal for sexual harassment and sexual abuse.
In its Judgment No. UNDT/2024/034, the UNDT dismissed the staff member’s application, finding that the contested decision was lawful.
Former staff member appealed.
Legal Principle(s)
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 cases where an oral hearing is held, the UNDT is required to provide a full, systematic analysis of the evidence, setting explicit reasons for accepting or rejecting the testimony of each witness. This involves a consideration of issues including: i) the witness’ candour and demeanour; ii) the witness’ latent and blatant biases; iii) internal and external inconsistencies in the evidence; iv) the probability or improbability of particular aspects of the witness’ version; v) the calibre and cogency of the witness’ testimony when compared to that of other witnesses testifying in relation to the same incident; vi) the opportunities the witness had to experience or observe the events in question; and vii) the quality, integrity and independence of the witness’ recall of the events.
A contradiction regarding a date does not necessarily impact on the other evidence or materially alter the outcome of the case.
A failure on the part of an investigator to interview one witness does not necessarily mean that a fatal flaw was committed in the investigative process, nor that the wholesale rejection of the investigation is warranted.
The UNDT is not required to address each and every claim made by a litigant.
It is typical in disputes concerning sexual harassment that the alleged conduct takes place in private, without direct evidence other than from the complainant and staff member alleged to have committed the misconduct. The evidentiary questions in such cases center on the credibility of both witnesses.