Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
The Ä¢¹½ÊÓƵAT held that the Ä¢¹½ÊÓƵDT had not failed to exercise jurisdiction nor committed an error in procedure. The Ä¢¹½ÊÓƵAT found that the Ä¢¹½ÊÓƵDT had not exceeded its broad discretion in overruling the objections of the staff member¡¯s counsel when it permitted additional questions by the Secretary-General¡¯s counsel and, in any event, the Ä¢¹½ÊÓƵDT¡¯s ruling had no material or prejudicial impact on the outcome of the case.
The Ä¢¹½ÊÓƵAT found that the Ä¢¹½ÊÓƵDT had not erred in finding that the picture the staff member had sent to the complainant had been of an explicit sexual and even pornographic character. The Ä¢¹½ÊÓƵAT agreed with the Ä¢¹½ÊÓƵDT that sending the picture and the preceding messages to the complainant had amounted to sexual harassment.
The Ä¢¹½ÊÓƵAT was of the view that there was no merit to the staff member¡¯s argument that the broader context of the communications between himself and the complainant ought to have been given more importance.
The Ä¢¹½ÊÓƵAT held that the sanction was not unlawful, arbitrary, adopted beyond the limits stated by the respective norms, excessive, abusive, discriminatory or absurd in its severity, and the Secretary-General had not failed to weigh aggravating and mitigating circumstances.
The Ä¢¹½ÊÓƵAT dismissed the appeal and affirmed the Ä¢¹½ÊÓƵDT Judgment.
Decision Contested or Judgment/Order Appealed
A former staff member contested a disciplinary decision to separate him from service for sexual harassment with compensation in lieu of notice and one half of the termination indemnity and to enter his name in the ClearCheck database.
In Judgment No. Ä¢¹½ÊÓƵDT/2024/068, the Ä¢¹½ÊÓƵDT dismissed the application on the merits.
The staff member appealed.
Legal Principle(s)
The Ä¢¹½ÊÓƵDT has a broad discretion in managing the cases that come before it. We will not interfere lightly with this broad discretion unless in clear cases where it has shown that due process has been denied. This may occur in instances such as where an error made by the Ä¢¹½ÊÓƵDT is shown to impact on a party¡¯s right to present their case or produce necessary evidence in support of it. However, the existence of an error alone is not sufficient. In order to be successful on appeal, it must also be shown that the error committed materially affected the outcome of the case.
A finding of sexual harassment requires proof that: i) the conduct in question occurred; ii) it falls within the legal understanding of sexual harassment and is of a sexual nature; iii) the conduct was unwelcome and reasonably expected or perceived to cause offence or humiliation; and iv) it interfered with work or created an intimidating, hostile, or offensive work environment.
While a power imbalance between staff members may very often exist in circumstances in which sexual harassment occurs, this is not always so.
In disciplinary matters, the Secretary-General has a broad discretion which will not be lightly interfered with on judicial review. The role of the Ä¢¹½ÊÓƵDT is not to consider the correctness of the choice made by the Secretary-General amongst the various courses of action open to him or to substitute its own decision for that of the Secretary-General.
Any disciplinary measure imposed on a staff member must be proportionate to the nature and gravity of the misconduct and be lawful, reasonable and procedurally fair.
Sexual harassment has been recognized as a scourge in the workplace which undermines the morale and well-being of staff members subjected to it.