2023-Ģ��ƵAT-1366

Ģ��ƵAT Held or Ģ��ƵDT Pronouncements

The Ģ��ƵAT considered an appeal by the staff member.

The Ģ��ƵAT found that because of a combination of the staff member��s failure to recall the events in question and of the Ģ��ƵDT��s decision (concurred in by the parties) not to hold an in-person hearing, the Ģ��ƵDT had appropriately referred to the investigation report.

The Ģ��ƵAT was of the view that the Ģ��ƵDT had correctly determined the staff member��s acts were sexual in nature. The staff member had, without invitation, encouragement or consent, embraced two different women in a sexual manner at a party at a staff retreat. The Ģ��ƵAT held that the Ģ��ƵDT properly concluded that AAN��s conduct fell within the definition of prohibited conduct, namely, sexual harassment, set down in the relevant Ģ��ƵICEF directive. The Ģ��ƵAT rejected the staff member��s contention that the Ģ��ƵDT should have considered as a mitigating factor that this was a one-off incident caused by his excessive drinking. The staff member��s long dedicated service, and absence of any disciplinary record should not be underestimated, but the converse of this positive factor is that as a senior staff member he should have known not to behave in such a manner. The Ģ��ƵAT concluded that in arriving at an appropriate sanction, a balance was required to be struck between the Appellant��s long record and seniority, and the nature of his behavior, and the Ģ��ƵAT did not agree that the Administration or the Ģ��ƵDT got this balance wrong.

The Ģ��ƵAT noted that several grounds of appeal were inadmissible.

The Ģ��ƵAT dismissed the appeal and affirmed Judgment No. Ģ��ƵDT/2022/073.

Decision Contested or Judgment/Order Appealed

A former staff member contested the disciplinary decision to separate him from service, with compensation in lieu of notice, and with termination indemnity, for sexual harassment.

In Judgment No. Ģ��ƵDT/2022/073, the Ģ��ƵDT dismissed the application. The Ģ��ƵDT found that the investigation had gathered clear and convincing evidence that supported the allegations that the staff member had touched two female colleagues without their consent, the acts being sexual in nature. The Ģ��ƵDT was of the view that the sanction imposed was adequate and proportionate to the gravity of the offence. The Ģ��ƵDT noted that his due process rights had been respected; he had not indicated the relevance of other proposed witnesses.

Legal Principle(s)

When the appellant criticizes the investigators for not interviewing his nominated witnesses, the answer was for the appellant to ask the Dispute Tribunal to hear from these witnesses at an oral hearing.

Notwithstanding a staff member��s assertion that hugging and touching of women by men is culturally acceptable behavior for him, his actions were clearly sexual in nature and not acceptable by or towards United Nations staff.

Outcome

Appeal dismissed on merits

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The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.

Applicants/Appellants

AAN

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