UNAT Held or UNDT Pronouncements
The UNAT held that the UNDT did not err in concluding that the Administration lawfully imposed the disciplinary measure of demotion by one grade with deferment for three years of promotion eligibility and gender鈥憇ensitivity training. The UNAT found that the UNDT correctly applied the governing legal framework, including Staff Rule 1.2(f) and ST/SGB/2008/5, in determining that the staff member鈥檚 conduct, an inappropriate remark referencing nudity and a stroking gesture, physical intimidation of a colleague, and leering at female staff, constituted sexual harassment and workplace harassment.
The UNAT further found that the UNDT properly applied the correct evidentiary standards, requiring clear and convincing evidence for sexual harassment and preponderance of the evidence for other misconduct, and that these standards were met. The UNAT also held that the staff member鈥檚 due process rights were respected throughout the investigation and disciplinary process. Moreover, the UNAT determined that the sanction was proportionate to the nature and gravity of the misconduct, taking into account aggravating and mitigating factors, and that the Administration acted within its broad discretion in disciplinary matters.
Therefore, the UNAT dismissed the appeal and affirmed Judgment No. UNDT/2024/080.
Decision Contested or Judgment/Order Appealed
A staff member of the United Nations Office on Drugs and Crime (UNODC) contested the Administration鈥檚 decision to impose the disciplinary measure of demotion by one grade with deferment for three years of consideration for eligibility for promotion, and to require him to undertake gender鈥憇ensitivity training. The measure was imposed after findings of sexual harassment and workplace harassment, including an inappropriate remark referencing nudity and a stroking gesture, physical intimidation of a colleague, and leering at female staff.
The UNDT, in Judgment No. UNDT/2024/080, dismissed the application on the merits, finding that the Administration had established the misconduct on the applicable evidentiary standards, respected due process, and imposed a sanction that was lawful and proportionate.
Staff member appealed.
Legal Principle(s)
To find that misconduct which justifies the termination of a staff member鈥檚 employment has been established, the evidence must be found to reach the standard of clear and convincing. This requires that the truth of the facts asserted is accepted to be highly probable. For any other disciplinary measure to be proved, the standard of proof is that of preponderance of the evidence, which requires a finding that, more likely than not, the facts and circumstances behind the misconduct exist or have occurred.
There is no requirement that, before a disciplinary measure may be imposed, a trial must be conducted which meets the high standard of a civil or criminal trial. Where the relevant evidence has been gathered by an investigator and such evidence has been put to the staff member, who has been given an opportunity to answer to or rebut such evidence, it may be determined that the process has met an acceptable threshold. What is required at a minimum is that where conflicting versions of events exist, such versions must be carefully tested to allow a determination as to the credibility, reliability and probabilities of one version over another.
By its nature, the multicultural environment of international civil service implies a duty of discretion devoir de r茅serve on international civil servants. As such, an international civil servant is expected to avoid misunderstandings which may arise due to cultural differences, especially when there is a risk of double-meaning.