2012-Ģ��ƵAT-274

Ģ��ƵAT Held or Ģ��ƵDT Pronouncements

Ģ��ƵAT considered an appeal by the Secretary-General. Regarding the evidence on which the disciplinary measure was based, Ģ��ƵAT held that Ģ��ƵDT 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. Ģ��ƵAT held that Ģ��ƵDT 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. Ģ��ƵAT held that the established facts amounted to sexual exploitation. Ģ��ƵAT held that Ģ��ƵDT had erred on a question of fact and law in concluding that there was not an iota of evidence to establish any act of sexual exploitation since the staff member had admitted to the fact during the investigations of having compensated women for sexual services, which was a clear breach of section 3. 2(c) of ST/SGB/2003/13. Ģ��ƵAT held that the disciplinary measure of dismissal was proportionate. Ģ��ƵAT upheld the appeal and reversed the Ģ��ƵDT judgment in part.

Decision Contested or Judgment/Order Appealed

The Applicant contested the decision to dismiss him from service following the findings by a Joint Disciplinary Committee (JDC) that he had engaged in serious misconduct, specifically sexual exploitation and abuse. Ģ��ƵDT concluded that the Applicant had been wrongly charged with sexual exploitation, stating that there was no evidence to establish any act of sexual exploitation (as defined [in Section 1 of ST/SGB/2003/13]) perpetrated by the Applicant. However, Ģ��ƵDT found that the second charge of unauthorised use of the Organisation��s information technology resources was established, as the Applicant had admitted to having stored pornographic images on his office computer. Ģ��ƵDT found that the sanction of separation without notice or compensation was disproportionate in comparison to the disciplinary measures imposed in similar cases. Ģ��ƵDT reasoned that, given that the Applicant had died in the interim, the only appropriate remedy was compensation, which Ģ��ƵDT fixed at four months�� net base salary.

Legal Principle(s)

The Secretary-General has wide discretionary powers in applying sanctions for misconduct committed by staff, but the disciplinary measures must be proportionate to the offence.

Outcome

Appeal dismissed on merits

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