UNAT Held or UNDT Pronouncements
The UNAT held that the UNDT properly exercised its discretion in excluding the former staff member’s allegations of racism within the CAF and his claim that his counsel was treated unfairly during the UNDT hearing, as well as in denying his request to call the investigator to testify. Nevertheless, the UNAT concluded that the UNDT erred in finding that the facts underlying the alleged misconduct had been proven by clear and convincing evidence, particularly in its assessment of the credibility of the witnesses.
Regarding V01’s allegations, the UNAT found that the UNDT improperly explained away a critical inconsistency – namely that, when the former staff member allegedly told V01 that he would take her to the “seventh heaven”, she took out a pistol. It found that the UNDT relied on V01’s unsupported claim of a PTSD diagnosis and on a medical study not in evidence, violating the principle of audi alteram partem. The UNAT also found errors in the UNDT’s assessment of other witnesses’ credibility, including that of the former staff member, and noted its failure to address several inconsistencies, such as the incorrect finding that an old photograph reflected his appearance on the day of an alleged incident.
The UNAT concluded that, regardless of the former staff member’s own credibility, the inconsistent and contradictory evidence of V01 and the other witnesses failed to meet the standard of clear and convincing evidence.
As for V02, the UNAT held that her allegations were vague and insufficient.
The UNAT also held that the UNDT erred in procedure by requiring the former staff member to call witnesses contrary to his interests and then limiting him to direct examination, thereby implicitly shifting the burden of proof.
The UNAT granted the appeal and reversed Judgment No. UNDT/2025/005. The Secretary-General was directed to expunge the name of the former staff member from the relevant registers including the ClearCheck database. In the event of the Secretary-General electing not to rescind the contested decision, the Secretary-General was directed to pay the former staff member in-lieu compensation in an amount equivalent to two years of his net base salary.
Decision Contested or Judgment/Order Appealed
A former staff member of the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) contested the decision of the Administration to impose on him the disciplinary measure of separation from service, with compensation in lieu of notice and without termination indemnity, for sexually harassing V01 and V02, two female members of the Canadian Armed Forces (CAF).
In its Judgment No. UNDT/2025/005, the UNDT dismissed the former staff member’s application, finding that the contested decision was lawful.
Former staff member appealed.
Legal Principle(s)
The UNDT has broad discretion in managing its hearings, including admitting evidence and witness testimony and determining their relevance and reliability. However, this discretion is not unfettered and must not be exercised arbitrarily, improperly or unfairly.
The Administration bears the burden of establishing the facts underlying the alleged misconduct. If the misconduct results in termination or separation from service, it must establish the underlying facts of the misconduct 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.
It is for the Administration, not the staff member, to prove the alleged facts. If the conduct of the hearing affects the Administration’s onus, the burden may implicitly shift to the staff member, rendering the process unfair. Thus, in disciplinary cases, the Secretary-General should normally adduce his evidence first. This avoids forcing the staff member to call adverse witnesses or seek to have them declared hostile. If the Secretary-General wishes to rely solely on the investigation report, in most cases, the investigator should testify. Otherwise, the UNDT must determine whether the report, as hearsay, carries sufficient weight to meet the burden of proof. Depending on the circumstances, it may not be sufficient.
Inconsistencies do not automatically undermine a witness credibility, but there must be a reasonable explanation for those inconsistencies.