������ҹ������

The case was decided by a bench of three judges. The Majority decided to dismiss the application with one Judge dissenting. On whether the facts of the case were established, the Majority concluded that the Respondent had substantiated with clear and convincing evidence the factual basis of the contested decision. Regarding misconduct, the Majority concurred that the act of forcing sexual intercourse, by the Applicant on the Complainant-(i.e., rape), amounted to sexual abuse in a grave form and, as such, constituted a serious misconduct prescribed by staff regulation 10.1(b) and staff rule 1.2...

UNAT considered an appeal by the Secretary-General. Regarding the evidence on which the disciplinary measure was based, UNAT held that UNDT had failed to appreciate the fact that the women who had been sexually exploited or abused came from a highly sensitive cultural background and were socially vulnerable. UNAT held that UNDT failed to consider the fact that the staff member, as Officer-in-Charge of Security of MINURSO, had a particular duty of care towards women and children, pursuant to Section 7 of ST/SGB/1999/13. UNAT held that the established facts amounted to sexual exploitation. UNAT...

UNAT considered an appeal by the Secretary-General. UNAT held that UNDT was correct to find that there was no breach of Mr Powell’s due process rights at the preliminary investigation stage. UNAT held that UNDT manifestly erred in fact and in law by finding that the investigations conducted by the Board of Inquiry (BOI) and the Sexual Exploitation and Abuse (SEA) Team were final investigations and by then attaching due process rights that were pertinent only after the initiation of disciplinary proceedings. UNAT allowed the appeal, set aside the UNDT findings in paragraphs 86 and 106 of the...

UNAT preliminarily dismissed the Appellant’s Application for Confidentiality and then considered the merits of the Appeal, which contained three grounds. With respect to the first ground, UNAT held that UNDT did not err in concluding that due process was satisfied if the staff member could comment on anonymous witness statements providing evidence against him. UNAT noted that the reasons for withholding the identities of the victims and for not producing them at trial were contained in the OIOS Investigation Report that was sent to the Appellant, thus the conditions for the admissibility for...

UNAT noted that V01 had not been placed under oath before giving her interview and that she did not sign the transcribed version of her interview statement. UNAT held that V01’s transcribed statement, in which she said that the Appellant had raped her and engaged in sex with her, was neither reliable nor trustworthy; it was solely hearsay and insufficient, by itself, to prove the charge that the Appellant engaged in sexual activity with a minor. UNAT held that similarly the other written documents were replete with hearsay and multiple hearsays and were neither trustworthy nor sufficient to...

UNAT considered an appeal by the Secretary-General. As a preliminary matter, UNAT noted that both parties agreed that a redaction of name would only be justified if the UNDT’s judgment was affirmed. UNAT held that UNDT erred when it considered that the identification of Mr. Mobanga by the complainant in the photo array was not reliable on the basis that the use of MONUSCO grounds passes in the array may have influenced the complainant. Noting that all of the photos were marked “MONUSCO” and so it did not stand out or influence anyone, UNAT held that the photographs constituted evidence that...

UNAT considered the appeal of the Appellant and the cross-appeal of the Secretary-General. UNAT denied the Appellant’s request for an oral hearing, noting that it would not have added any further value or clarification of the factual and legal issues. UNAT held that the Secretary-General's cross-appeal was receivable, according to Article 9(4) of the RoP. UNAT held that the UNDT erred in holding that the disciplinary investigation was flawed by procedural irregularities. UNAT held that UNDT erred in finding that the disciplinary decision was unlawful and, accordingly, that there could neither...

UNAT considered the appeal by the Secretary-General. UNAT held that UNDT correctly concluded that the Administration properly exercised its discretion to place the Applicant on administrative leave, considering an enduring reputational risk in light of the allegations relating to sexual abuse and exploitation of an under-age girl, which were reasonably supported by the evidence. UNAT held that the new Staff Rule 10. 4(c), which had not yet been enacted at the relevant time, was not applicable to the Applicant’s misconduct. UNAT held that UNDT’s factual findings were open to criticism in that...

MOn the issue of receivability, UNAT held that UNDT erred in concluding that the application was receivable in its entirety, as each of the three decisions taken on ALWOP were distinct and the Appellant failed to seek management evaluation of the first and second decisions. UNAT held the application was only receivable ratione materiae in respect of the third and last decision. UNAT held that UNDT’s finding that no exceptional circumstances existed to warrant the extension of the Appellant’s ALWOP was a material error of law. UNAT held that UNDT erred in concluding that 12 months ALWOP was...

UNAT held that UNRWA DT committed errors of law and fact resulting in a manifestly unreasonable decision. UNAT held that UNRWA DT erred in its assessment of the alleged victim’s credibility. UNAT held that, contrary to UNRWA DT’s understanding, there was no record that the alleged victim had stated that she had been sexually attacked by the Appellant on previous occasions. UNAT held that UNRWA DT erred in drawing a negative inference about the credibility of the alleged victim from her delayed reporting. UNAT held that UNRWA erred in its assessment of the Appellant’s credibility, in particular...