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The Appellant contested the Ä¢¹½ÊÓƵDT finding that he was afforded full and fair consideration for the position of Chief and argued that he suffered unfair and discriminatory treatment. Ä¢¹½ÊÓƵAT held that if the Administration does not comply with a Tribunal¡¯s order to disclose the reasons for an administrative decision, as such, the Tribunal cannot automatically conclude that the decision was arbitrary, but it is entitled to draw an adverse inference from the refusal. Ä¢¹½ÊÓƵAT affirmed the Ä¢¹½ÊÓƵDT finding that the Administration¡¯s decision must be deemed unlawful, as the Secretary-General refused to comply...

Ä¢¹½ÊÓƵAT 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. Ä¢¹½ÊÓƵAT 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. Ä¢¹½ÊÓƵAT held that similarly the other written documents were replete with hearsay and multiple hearsays and were neither trustworthy nor sufficient to...

Ä¢¹½ÊÓƵAT considered the appeal of Mr Bagot and the cross-appeal of the Commissioner-General. Ä¢¹½ÊÓƵAT held that the Commissioner-General¡¯s cross-appeal was receivable. Ä¢¹½ÊÓƵAT agreed with the findings of Ä¢¹½ÊÓƵRWA DT that the established facts regarding the lunch and the events that took place in the apartment did not amount to misconduct. Ä¢¹½ÊÓƵAT held that the only reasonable conclusion available to the first instance Judge was that the facts of the alleged misconduct were not established by clear and convincing evidence, in light of the plot and the sequence of the events, assessed in conjunction with the...

Ä¢¹½ÊÓƵAT held that it was not appropriate to adjudicate the ICAO Secretary-General¡¯s motion regarding the Appellant¡¯s claims impugning the AJAB¡¯s functioning as the ¡®Neutral First Instance Process¡¯ at that stage since the issues raised in the motion would be decided when Ä¢¹½ÊÓƵAT had considered the whole of the evidence in the appeal. Ä¢¹½ÊÓƵAT dismissed the motion. Ä¢¹½ÊÓƵAT held that AJAB had given a very thorough, fair, and informed consideration of the Appellant¡¯s case in which it examined the irregularities alleged. Ä¢¹½ÊÓƵAT rejected the Appellant¡¯s submission that AJAB erroneously admitted eight previously...

Ä¢¹½ÊÓƵAT agreed with the Ä¢¹½ÊÓƵRWA DT that the contested decision was a lawful exercise of discretion. Regarding the Appellant¡¯s claim that the process was tainted because of the lapse of time since the complained of behavior occurred (ten years) and because of the hearsay nature of the evidence, Ä¢¹½ÊÓƵAT explained that these same arguments were made both to the DT and to the Administration during the investigation phase. The Tribunal agreed with the Ä¢¹½ÊÓƵRWA DT that there was sufficient corroborating evidence to back the allegations. The Tribunal also noted that it is within the Ä¢¹½ÊÓƵRWA DT¡¯s role to review...

Ä¢¹½ÊÓƵAT considered an appeal by the Secretary-General of the United Nations. Ä¢¹½ÊÓƵAT held that Mr. Khamis¡¯ proven conduct did not itself amount to misconduct: he did not engage in transactional sexual relations with local persons and his sexual relations with two local women were more in the nature of domestic, albeit polygamous and ¡®open¡¯, relationships. Ä¢¹½ÊÓƵAT held that it was not established that payments made to both women were commercial transactions in return for sexual favours. Ä¢¹½ÊÓƵAT held that there was not such an imbalance of power between Mr. Khamis and the two women that they could be termed...

The staff member appealed to Ä¢¹½ÊÓƵAT arguing inter alia that there was no clear and convincing evidence in the record showing that he was aware that he was the subject of an investigation at the time he applied to the Ä¢¹½ÊÓƵICEF job. Ä¢¹½ÊÓƵAT determined that the letter from the IOM Legal Counsel (an authorized representative of an agency within the United Nations System) enjoyed the status of an ¡°official act¡± and as such carried with it ¡°the presumption of regularity¡±. The Tribunal found that once this evidence had been adduced, it was incumbent upon the staff member to rebut it, which he failed to do...

Ä¢¹½ÊÓƵAT dismissed the Secretary-General¡¯s appeal and granted the staff member¡¯s cross-appeal, in part. Ä¢¹½ÊÓƵAT found that the Ä¢¹½ÊÓƵDT properly took into account several facts that were relevant in determining whether there had been sexual exploitation and abuse of vulnerability or trust. The Tribunal reasoned the burden on the Administration was to show on clear and convincing evidence that the staff member¡¯s conduct fell in one of the following five categories: (i) he abused a position of vulnerability for sexual purposes; (ii) he abused a position of differential power for sexual purposes; (iii) he...

In its findings, the Tribunal found that the evidence in support of the charges was credible and that the Applicant failed to prove that the decision to summarily dismiss him was arbitrary or motivated by prejudice or other extraneous factors, or was flawed by procedural irregularities or error of law. With regards to the Applicant¡¯s allegations of breach of due process, the Tribunal could not find any evidence that the rights of the Applicant had been violated. The Tribunal was also satisfied that the Respondent discharged his burden of proof and that he made proper use of his discretion.

The practice of placing reliance upon recordings in initial fact finding exercises and interview notes of appointed investigators in an effort to establish gross misconduct warranting summary dismissal before the Tribunal is grossly inadequate and cannot establish the facts in issue. An investigator must be committed to ascertaining the facts of the case through relevant inquiry involving the questioning of witnesses, forensic evidence where necessary and identification and collection of relevant documentary evidence. The investigator¡¯s findings should be based on substantiated facts and...