UNAT Held or UNDT Pronouncements
The UNAT held that the UNRWA DT did not err in finding that there was clear and convincing evidence to support that the applicant had engaged in abuse of authority by intimidating a staff member to file a false complaint of sexual harassment against another staff member. The UNRWA DT weighed the conflicting testimonies and assessed the credibility of the witnesses and found that she had a motive to solicit the false complaint.
The UNAT held that the UNRWA DT did not err in declining to review the other misconduct allegations against her, given that the abuse of authority allegation was the most serious and was sufficient to support the disciplinary measure of termination. The aggravating factors of her seniority, position of trust, multiple breaches and targets, and her resistance during the investigation supported the Agency’s decision to impose termination as the sanction.
The UNAT agreed with the UNRWA DT that the Agency failed to respect her due process rights by not providing her with a copy of the investigation report before taking the disciplinary decision, but this was cured by receiving the report prior to the UNRWA DT hearing.
The UNAT also found that the UNRWA DT had correctly determined that the former staff member failed to prove that the Agency had abused its discretion when it closed the investigation into complaints she had made against others.
The UNAT affirmed the UNRWA DT Judgment.
Decision Contested or Judgment/Order Appealed
In Judgment No. UNRWA/DT/2023/051, the UNRWA Dispute Tribunal dismissed the application of a former staff member of UNRWA, in which she challenged her separation from service for abuse of authority and harassment. The UNRWA DT also rejected her challenge to the Agency’s handling of her complaints against several current and former staff members.
The former staff member appealed.
Legal Principle(s)
Where key facts are disputed, the Dispute Tribunal in its judgment must make explicit findings pertaining to the credibility and reliability of the evidence and provide a clear indication of which disputed version it prefers and explain why. This will require the Tribunal to set out its impression about the veracity of every witness who testified before it in the hearing.
In order to overturn a finding of fact by the UNDT, the Appeals Tribunal must be satisfied that the finding is not supported by the evidence or that it is unreasonable. 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.
The fact that the misconduct is “serious” is not sufficient to automatically impose the most severe disciplinary measure without considering all relevant factors. To do so would be arbitrary. The Commissioner-General has discretion and must exercise it judiciously by considering and weighing all relevant factors (aggravating and mitigating).
The due process rights of a staff member are complied with as long as he or she has a meaningful opportunity to mount a defense and to question the veracity of the statements against him or her.
Disciplinary matters are within the discretion and authority of the Commissioner-General and the Agency has discretion as to how to conduct a review and assessment of a complaint and whether to undertake an investigation.