Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
The Ä¢¹½ÊÓƵAT noted that the staff member allowed an unauthorized female individual to board a United Nations vehicle assigned to him and to publicly commit acts of a sexual nature in the rear seat, bringing disrepute to the Organization and difficulties with the host country.
The Ä¢¹½ÊÓƵAT found that the case was not one where the issues required the Ä¢¹½ÊÓƵDT¡¯s determination of the credibility of contradicting testimonies of parties or witnesses and the lack of a Ä¢¹½ÊÓƵDT hearing had not affected its decision. The Ä¢¹½ÊÓƵDT appropriately considered the former staff member's admissions, as well as the video clip depicting the events in question.
The Ä¢¹½ÊÓƵAT agreed with the Ä¢¹½ÊÓƵDT that the lawfulness of the investigation had already been considered and determined by the Ä¢¹½ÊÓƵDT in an earlier judgment.
The Ä¢¹½ÊÓƵAT was of the view that the staff member had not discharged his burden to rebut the presumption of integrity and impartiality of the Ä¢¹½ÊÓƵDT Judge.
The Ä¢¹½ÊÓƵAT held that the staff member had failed to provide any corroborating medical evidence to support his contention that he was so ill that he could not have the mental capacity to commit the prohibited conduct.
The Ä¢¹½ÊÓƵAT observed that the Ä¢¹½ÊÓƵDT might not have addressed the staff member¡¯s criticism of a Ä¢¹½ÊÓƵDT judge in the impugned Judgment because it was irrelevant to this matter as that judge had not been involved in the present case.
The Ä¢¹½ÊÓƵAT found that the Secretary-General had considered all the relevant factors (aggravating and mitigating) and that the disciplinary measure imposed was consistent with prior precedent and proportionate to the offence, i.e. neither excessive nor unreasonable. The Ä¢¹½ÊÓƵAT agreed with the Ä¢¹½ÊÓƵDT that the staff member's conduct could not be tolerated given the "unprecedented" damage to the Organization's reputation.
The Ä¢¹½ÊÓƵAT dismissed the appeal and affirmed the Ä¢¹½ÊÓƵDT¡¯s Judgment.
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 without termination indemnity for permitting a female individual, external to the United Nations, to be transported unauthorized in a United Nations vehicle assigned to him, and who also publicly engaged in sexually suggestive behaviour in the vehicle.
In Judgment No. Ä¢¹½ÊÓƵDT/2023/060, the Ä¢¹½ÊÓƵDT dismissed the application.
The staff member appealed.
Legal Principle(s)
As a factual finding of misconduct is of serious import, the determination of misconduct should preferably be done in an oral hearing.
The burden to rebut the presumption of integrity and impartiality of the judge is not discharged by simply pointing out paragraphs and bullet points that have the same format, wording and syntax, including punctuation, as another judgment. The entire judgment must be reviewed to consider whether the presumption has been rebutted.
Only substantial procedural irregularities in the disciplinary investigation will render a disciplinary measure unlawful.
The Secretary-General has broad discretion in determining the appropriate disciplinary measure for the established misconduct and the Tribunal will only overturn a measure if it finds that it is excessive or unreasonable.