UNAT Held or UNDT Pronouncements
The UNAT held that the UNDT erred in finding that the Administration had not proven by clear and convincing evidence that Mr. Ammar made the Facebook post because the Inspector General’s Office (IGO) inappropriately discounted the possibility that Mr. Ammar’s Facebook account had been hacked. The UNAT found that the Administration met its burden of establishing that it was highly probable that Mr. Ammar posted the Comment and thus publicly expressed support for an honour killing. The Administration produced uncontradicted evidence that the comment came from Mr. Ammar’s Facebook account and he adduced no evidence that his account was hacked.
The UNAT held that the UNDT erred in finding that the IGO investigators failed in their duty to somehow compel Mr. Ammar to coordinate with Facebook to check and verify the IP address from which the Comment was made. Once the Administration met its burden of establishing the facts underlying the disciplinary measure through clear and convincing evidence, Mr. Ammar bears the burden to provide sufficient and credible evidence to substantiate allegations adduced in his defense, which he did not do.
The UNAT affirmed the UNDT’s finding that that the sanction imposed on Mr. Ammar was lawful and not arbitrary, nor adopted beyond the limits stated by the respective norms, excessive, abusive, discriminatory or absurd in its severity. The Secretary-General appropriately weighed aggravating and mitigating circumstances when deciding upon the appropriate sanction. The Comment was posted on a widely followed Facebook page, where Mr. Ammar presented himself as UNHCR staff, and it “severely clashed with the values of the Organization, displayed a complete disregard for fundamental human rights”, and created a significant risk of reputational damage to UNHCR.
The UNAT granted the Secretary-General’s appeal and reversed the UNDT Judgment.
Decision Contested or Judgment/Order Appealed
Mr. Ammar, a former staff member of the United Nations High Commissioner for Refugees (UNHCR), contested the disciplinary measure of separation from service with compensation in lieu of notice and with half termination indemnity, for posting a public comment on a Facebook page in support of an honour killing.
In Judgment No. UNDT/2024/078, the UNDT granted the application.
The Secretary-General appealed.
Legal Principle(s)
Clear and convincing evidence requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt. It means that the truth of the facts is “highly probable”.
There is no requirement that investigators pursue all lines of enquiry and search for any possible exculpatory evidence in a case. Rather, the requirement is that the investigators should make every reasonable effort to search for relevant and obtainable inculpatory and exculpatory evidence. What constitutes reasonable effort will depend on the circumstances of each case.
If a party raises a defence to the allegation, then they have the burden of proving their case. It is a principle in evidence law that the burden of proof lies with the party who presents a claim.