2024-Ģ��ƵAT-1493

Ģ��ƵAT Held or Ģ��ƵDT Pronouncements

The Appeals Tribunal found that in its rigid treatment of the evidence in relation to AAY��s conduct, the Ģ��ƵDT failed to have appropriate regard to what had been admitted to by AAY when interviewed by OIOS. The fact that AAY chose not to testify at the Ģ��ƵDT hearing made it clear that he stood by his statement to the OIOS investigators. The Ģ��ƵDT was required to consider this undisputed evidence from him in its assessment whether the misconduct against him had been proved, more so in circumstances in which he did not elect to testify further in his own defence. The fact that the three witnesses he called to testify before the Ģ��ƵDT had not witnessed the incidents in question, did not undermine the weight of his own admissions and the body of evidence against him. In relation to CC, the Appeals Tribunal found that the hearsay evidence of AA and BB was corroborated in important respects by CC in her oral testimony and there was no reason for the Ģ��ƵDT to ignore this evidence or attach limited weight to her evidence.

As to whether AAY��s conduct was sexually motivated, the Appeals Tribunal noted that the Ģ��ƵDT repeated the statement made in the first Ģ��ƵAT judgment that ��(w)hile the conduct was unwelcome, AA did not consider it to have been sexual in nature or offence. An unwelcome kiss, without sexual motivation, and which causes no offence, is not sexual harassment��. The Appeals Tribunal disagreed with that statement finding that the suggestion that the unwelcome kiss given by AAY did not cause offence did not accord with the express evidence to the contrary.

The Appeals Tribunal granted the appeal and reversed the second judgment of the Ģ��ƵDT.

Decision Contested or Judgment/Order Appealed

AAY, a former United Nations staff member, challenged the disciplinary measure of separation from service with compensation in lieu of notice, and with termination indemnity. This sanction was imposed after the Administration found it to have been established by clear and convincing evidence that during a farewell party for a colleague at the offices of the United Nations Headquarters in New York, AAY sexually harassed three female colleagues, AA, BB and CC.

In a first Judgment, the Ģ��ƵDT dismissed AAY��s application contesting the sanction, and AAY appealed.

The Ģ��ƵAT found that, by refusing to allow key witnesses to testify and by over-relying on hearsay evidence, the Ģ��ƵDT had committed an error in procedure such as to affect the decision of the case, resulting in a manifestly unreasonable decision. The Ģ��ƵAT remanded the matter to be heard and determined by a different Ģ��ƵDT Judge.

On remand, the Ģ��ƵDT granted AAY��s application. The Ģ��ƵDT found that given the unavailability of key witnesses, the issues raised in the Ģ��ƵAT Judgment could not be addressed, and it had not been established by clear and convincing evidence that AAY��s conduct was of a sexual nature. The Ģ��ƵDT ordered rescission of the disciplinary sanction and, in the alternative to rescission, payment of two years�� net base salary.

The Secretary-General appealed.

Legal Principle(s)

The OIOS investigation report prepared often contains a good deal of hearsay evidence, which may be considered inadmissible, or it may be given less weight than direct evidence given by a witness before the Ģ��ƵDT as a fact-finding tribunal. Unless its admission is agreed by the party against whom it is adduced, the person on whose credibility the probative value of such evidence depends testifies or the Ģ��ƵDT admits such evidence having regard to the interests of justice having considered issues including the nature of the proceedings, the nature, probative value and purpose of the evidence, the reason why the evidence is not given by the person upon whose credibility its probative value depends and considerations of prejudice.

Sexual harassment is more often than not concerned with the exercise of power and usually reflects the power relations that exist in society generally and specifically within a particular workplace. By its nature sexual harassment undermines the dignity, privacy and integrity of the victim, creates an offensive and often intimidating work environment and risks creating a barrier to substantive equality in the workplace. It falls outside of the bounds of acceptable conduct for an employee to intrude on the privacy, dignity and personal space of others in a workplace setting. We accept that the facts matter, and the circumstances in which events occur and their context are relevant. Whether an unwelcome kiss causes offence and whether it is given without sexual motivation is a matter to be determined on the facts and the circumstances. However, as a general proposition, any environment in which unwelcome kisses are condoned, risks developing into a hostile one.

Outcome

Appeal granted

Outcome Extra Text

The appeal is granted, and Judgment No. Ģ��ƵDT/2023/111 is hereby reversed.

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

AAY

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Tribunal

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Date of Judgement