Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
The Ä¢¹½ÊÓƵAT first concluded that the Ä¢¹½ÊÓƵDT erred by failing to specify whether the alleged misconduct of sexual exploitation had been established to the required evidentiary standard of clear and convincing evidence. Second, the Ä¢¹½ÊÓƵAT held that the Ä¢¹½ÊÓƵDT had erred in concluding that the victim was a vulnerable person, that Mr. Stefan was aware of her vulnerability, and that he sexually exploited her vulnerability. The Ä¢¹½ÊÓƵAT held that the Ä¢¹½ÊÓƵDT erred when it made this finding without any independent or medical evidence, and that the Ä¢¹½ÊÓƵDT had relied on its own Internet research regarding various illnesses and the effect of certain drugs, without providing notice to the parties to respond to this research.
The Ä¢¹½ÊÓƵAT held that there was no clear and convincing evidence that the victim suffered from a condition, power imbalance, or chronic intoxication or drug use that made her vulnerable. The Ä¢¹½ÊÓƵAT observed that the relationship between Mr. Stefan and the victim was volatile and unhealthy, and that the victim was at times the aggressor and unstable. The Ä¢¹½ÊÓƵAT held that there was insufficient evidence to conclude that Mr. Stefan had any authority over the victim or was in a position to exploit their relationship.
On the second count of misconduct, the Ä¢¹½ÊÓƵAT found that the Ä¢¹½ÊÓƵDT correctly concluded that Mr. Stefan had engaged in misrepresentation to the Organization when he requested emergency family leave, when the evidence showed that he had pre-planned this additional leave time and there was no family emergency.
In sum, the Ä¢¹½ÊÓƵAT reversed the Ä¢¹½ÊÓƵDT Judgment and rescinded the contested decision, which included both counts of misconduct. Because the Ä¢¹½ÊÓƵAT found sufficient evidence regarding the misrepresentation concerning emergency family leave, the Ä¢¹½ÊÓƵAT held that the Administration was free to take another administrative decision on that count. Further, the Ä¢¹½ÊÓƵAT held that given its findings that both individuals were complicit in a volatile relationship, the Ä¢¹½ÊÓƵAT set in-lieu compensation of one year¡¯s salary for Mr. Stefan, and also ordered the Administration to delete Mr. Stefan¡¯s name from the ClearCheck database.
Decision Contested or Judgment/Order Appealed
In Judgment No. Ä¢¹½ÊÓƵDT/2022/083, the Dispute Tribunal dismissed Mr. Stefan¡¯s application contesting the Administration¡¯s decision to separate him from service as a disciplinary measure for sexual exploitation and misrepresentation with regard to family emergency leave.
Mr. Stefan appealed.
Legal Principle(s)
Ä¢¹½ÊÓƵAT jurisprudence related to demonstrating sexual exploitation and abuse applies to conduct between United Nations staff members and is not limited to situations involving United Nations staff members and non-United Nations staff members.
Where the Ä¢¹½ÊÓƵDT obtains its own evidence with no notice to the parties and provides no opportunity to the parties to respond to it, this is a procedural fairness violation.
For the Administration to establish that a staff member engaged in sexual exploitation and abuse, it must show on clear and convincing evidence that the staff member (i) abused a position of vulnerability for sexual purposes; (ii) abused a position of differential power for sexual purposes; (iii) abused trust for sexual purposes; (iv) exchanged money, employment, goods or services for sex; or (v) engaged in some form of humiliating, degrading or exploitative behaviour.
Generally, a vulnerable person can be someone who is unable to protect themselves from harm or exploitation, and/or may be unable to give consent or sufficiently understand decisions or exercise their legal rights due to: (a) a developmental, physical, medical or psychological condition; (b) an unequal relationship with a person in a position of trust, authority or support; (c) chronic intoxication or drug use that results in incapacity or patterns of behavior that may pose a danger to themselves, or (d) circumstances such as gender, orientation, ethnicity, economic or social status that put them in a state of dependency or risk.
Outcome
Outcome Extra Text
The contested decision is rescinded, in-lieu compensation of one year's salary is granted, and the Administration is ordered to delete the staff member's name from the ClearCheck database.