Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
Ä¢¹½ÊÓƵAT held that the Ä¢¹½ÊÓƵDT erred both in not permitting the Appellant to call a witness (AA) and in the incorrect conclusions it drew from her hearsay evidence. Ä¢¹½ÊÓƵAT held that, to the extent that BB (a non-Ä¢¹½ÊÓƵ staff member) was a witness adverse to the Appellant, the failure of the Secretary-General to secure her attendance before the Ä¢¹½ÊÓƵDT permitted an adverse inference which detracted considerably from the credibility and reliability of her allegations in the OIOS investigation report. Ä¢¹½ÊÓƵAT held that little weight could be attached to the evidence of two unidentified Ä¢¹½ÊÓƵ staff members, to whom the Ä¢¹½ÊÓƵDT referred, when neither were called to testify. Ä¢¹½ÊÓƵAT held that the hearsay upon hearsay and the unsubstantiated report of the unidentified witnesses did not attain the standard of clear and convincing evidence required to establish that the Appellant¡¯s conduct was sexual. Ä¢¹½ÊÓƵAT held that the Ä¢¹½ÊÓƵDT failed to discuss and analyse the evidence of one witness (CC) who gave testimony before it and made no findings about her performance as a witness, her credibility and reliability or the factual conclusions to be drawn from her testimony. Ä¢¹½ÊÓƵAT held that the Ä¢¹½ÊÓƵDT, by refusing to allow key witnesses to testify and its over-reliance on hearsay evidence, committed an error in procedure such as to affect the decision of the case and consequently erred also on the facts, resulting in a manifestly unreasonable decision. Ä¢¹½ÊÓƵAT remanded the matter to the Ä¢¹½ÊÓƵDT with direction for the application to be re-heard and considered by a different judge.
Decision Contested or Judgment/Order Appealed
The Applicant contested the decision to impose upon him the disciplinary measure of separation from service with compensation in lieu of notice and termination indemnity, for misconduct in the form of sexual harassment. Ä¢¹½ÊÓƵDT dismissed his application.
Legal Principle(s)
Sexual harassment must be shown by the evidence to have been highly probable. To ensure the satisfaction of the standard of proof in disciplinary cases, Ä¢¹½ÊÓƵDT will ordinarily be obliged to convene an oral hearing at which the alleged wrongdoer will be afforded an opportunity to face and cross-examine those who accuse him or her of misconduct. If witnesses are available to testify, there should be compelling reasons before disallowing such evidence and substituting it with hearsay. The Secretary-General bears the considerable onus to bring clear and convincing evidence before Ä¢¹½ÊÓƵDT to prove that the misconduct was highly probable. There is no overall onus on the staff member to prove his innocence. An investigative report, while useful, is no substitute for a judicial determination.
Outcome
Outcome Extra Text
The Ä¢¹½ÊÓƵAT Judgment provided the following guidance on the rehearing: the Ä¢¹½ÊÓƵDT should at the very least hear the evidence of the complainants, any eyewitnesses to the incidents, the persons to whom the first report was made, and the three witnesses identified by the Appellant; should some of the witnesses no longer be available, the Ä¢¹½ÊÓƵDT must determine on the available evidence whether the allegations of sexual harassment have been proven by the Secretary-General on evidence that attains the standard of highly probable.