2024-Ģ��ƵAT-1469-Corr.1

Ģ��ƵAT Held or Ģ��ƵDT Pronouncements

The Ģ��ƵAT observed that the Secretary-General elected to limit the scope of his appeal only against the findings of the Ģ��ƵDT with respect to two of nine instances of alleged misconduct by the former staff member. The Ģ��ƵAT further acknowledged that the Secretary-General��s contention was that the Ģ��ƵDT erred in law when it applied the legal tests for harassment and sexual harassment to the two incidents.

Nonetheless, the Ģ��ƵAT held that to determine the issue on appeal required more than simply an application of the correct legal test. To reach any conclusions requires more than simply regard to the law, but also necessitates consideration of the established relevant facts after resolving disagreements between the parties about those facts. The Ģ��ƵAT held that the questions of law were not extricable from the factual issues, and the errors made by the Ģ��ƵDT were sufficiently grave so as to overturn the factual findings.

The Ģ��ƵAT noted that the Ģ��ƵDT failed to hear any oral evidence about the two incidents of harassment and sexual harassment. Instead, the Ģ��ƵDT held a hearing focused only on whether the staff member��s allegations that the victim had a retaliatory motive was adequately investigated. Once the Ģ��ƵDT determined that the investigation had been flawed, it was not clear on what basis the Ģ��ƵDT made its findings of fact, especially when it did not hear from the staff member or the victim with regard to the two incidents.

The Ģ��ƵAT held that the errors of the Ģ��ƵDT were not capable of correction on appeal, reversed the Ģ��ƵDT Judgment, and remanded the case for a de novo hearing on the two incidents of misconduct.

Decision Contested or Judgment/Order Appealed

In Judgment No. Ģ��ƵDT/2023/063, the United Nations Dispute Tribunal granted the application of Mr. Parmosivea Soobrayan, a former staff member of the United Nations Children��s Fund (Ģ��ƵICEF), and rescinded the Administration��s decision to impose on him the disciplinary measure of separation from service for sexual harassment.

The Secretary-General appealed.

Legal Principle(s)

When the question of law is not extricable from the factual issues, an application of the Ģ��ƵDT findings to the appropriate legal test is a question of mixed law and fact. In such cases, there must be a palpable and overriding error for the Appeals Tribunal to interfere, namely that the error is obvious and is sufficiently grave to overturn the finding of fact as it goes to the root of the issue and as such cannot stand.

In cases of alleged misconduct, which typically involve disputed factual issues, a hearing not only allows for witnesses�� versions to be tested and challenged, but also affords the Ģ��ƵDT the opportunity to question witnesses and consider the veracity of their testimony having had the benefit of viewing their performance and considering their demeanor.

An oral hearing and cross-examination will not be required in all disciplinary cases, and whether an oral hearing will be required will depend on the circumstances of the case before the Ģ��ƵDT.

By its nature, harassment or sexual misconduct usually occurs between two individuals and often in the absence of any third-party witness able to corroborate the events. Given as much, a proper assessment of the credibility, reliability, and probabilities of the account of one witness over another is fundamental to an assessment of the veracity or otherwise of distinct versions in such matters.

Whether the investigation report alone provides sufficient evidence to establish the relevant facts by clear and convincing evidence will depend on the particular facts and circumstances of the case, including what facts are disputed, the nature and extent of such disputes, whether any supporting documentary or recorded evidence exists, and admissions made by the parties.

Outcome

Appeal granted

Case remanded

Outcome Extra Text

The Judgment is reversed and remanded to the Ģ��ƵDT for a de novo hearing pursuant to the instructions in the Ģ��ƵAT Judgment.

OAJ prepared this case law summary for informational purposes only. It is no official record and should not be relied upon as an authoritative interpretation of the Tribunals' rulings. For the authoritative texts, please refer to the judgment or order rendered by the respective Tribunal. The Tribunals are the only bodies competent to interpret their respective judgments, as provided under Article 12(3) of the Ģ��ƵDT Statute and Article 11(3) of the Ģ��ƵAT Statute. Any inaccuracies in the publication are the sole responsibility of OAJ, which should be contacted directly for any correction requests. To provide comments, don't hesitate to get in touch with OAJ at oaj@un.org.

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

Applicants/Appellants

Parmosivea Soobrayan

Entity

Case Number(s)

Tribunal

Registry

Date of Judgement