Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
The Ä¢¹½ÊÓƵAT found that Article 9(4) of the Ä¢¹½ÊÓƵDT Statute regarding the nature of the judicial review that the Ä¢¹½ÊÓƵDT conducts in disciplinary cases did not apply to the instant case as it was adopted after the hearing was held. The parties presented their evidence, including a chronology of agreed facts as well as live testimony, and made their respective post-hearing submissions, under a legal framework where Article 9(4) was not operative and it would be inappropriate, and a denial of due process, to apply a new evidentiary framework at the point of decision, ex post facto.
The Ä¢¹½ÊÓƵAT found that although Mr. Aguilar Valle¡¯s conduct was unbecoming for a manager in his position, the Secretary-General failed to meet the burden of proving by clear and convincing evidence, that conduct tantamount to sexual harassment occurred. The hearsay evidence provided did not meet that burden when viewed in light of the entire record. Notably, there was no formal interview transcript of the complainant in the investigatory record, in addition to the fact that she did not testify at the Ä¢¹½ÊÓƵDT hearing.
The Ä¢¹½ÊÓƵAT further held that the evidence taken as a whole did not support the conclusion that Mr. Aguilar Valle¡¯s missteps constituted abuse or created a hostile work environment. The Ä¢¹½ÊÓƵDT saw no basis to reject the Ä¢¹½ÊÓƵDT¡¯s finding that while Mr. Aguilar Valle engaged in limited inappropriate behaviour towards certain staff members, his behavior did not give rise to a hostile work environment nor was it properly classified as misconduct warranting discipline.
The Ä¢¹½ÊÓƵAT recalled that it does not lightly interfere with Ä¢¹½ÊÓƵDT awards of compensation. However, in the present case, the Ä¢¹½ÊÓƵAT found that compensatory remuneration for the period of two years must be discounted by a factor reflecting several possible contingencies, including retirement, ill-health, retrenchment, abolition of post, and Mr. Aguilar Valle¡¯s questionable workplace conduct coming to notice and being sanctioned. The Ä¢¹½ÊÓƵAT considered that an award of 16 months of compensation (plus the 18 days remaining on his contract if they had not yet been paid) was the appropriate result.
Lastly, the Ä¢¹½ÊÓƵAT noted that while it has encouraged parties to await the issuance of the Judgment on Remedies from the Ä¢¹½ÊÓƵDT before filing an appeal, given that the time-limits set forth in Article 7(1)(c) of the Ä¢¹½ÊÓƵAT Statute do not distinguish between types of judgments, it could not fault the Secretary-General for seeking to preserve his rights of appeal by filing separate appeals of each Judgment. The Ä¢¹½ÊÓƵAT found that the Secretary General¡¯s cautious approach did not meet the high bar of abuse of process and rejected Mr. Aguilar Valle¡¯s request for an award of costs.
The Ä¢¹½ÊÓƵAT affirmed the Ä¢¹½ÊÓƵDT Judgment on Liability and modified the Judgment on Relief.
Decision Contested or Judgment/Order Appealed
Mr. Aguilar Valle filed an application contesting the Secretary-General¡¯s decision to impose on him the disciplinary measure of separation from service with compensation in lieu of notice and without termination indemnity for sexual harassment and hostile work environment.
The Ä¢¹½ÊÓƵDT issued two Judgments - Judgment No. Ä¢¹½ÊÓƵDT/2024/007 (Judgment on Liability), in which it found the decision unlawful and granted Mr. Aguilar Valle¡¯s application, and, in Judgment No. Ä¢¹½ÊÓƵDT/2024/032 (Judgment on Relief), the Ä¢¹½ÊÓƵDT determined that as in-lieu compensation, Mr. Aguilar Valle should be financially placed as if the contested decision had never taken place and his fixed-term appointment extended until 22 April 2024, resulting in a compensatory award spanning a time period in excess of two years. The Ä¢¹½ÊÓƵDT also awarded USD 5,000 as compensation for moral damage.
The Secretary-General appealed both Judgments.
Legal Principle(s)
There is no requirement for the complainant to testify in every case for the disciplinary measure to be upheld, provided that the requisite burden of clear and convincing proof is met by the Secretary-General, based on all the facts and circumstances of the case, and with due regard for the rights of the accused.
The weight to be given to the investigation report will depend on the circumstances of the case and on an assessment of the totality of evidence.
The accused has the right under the United Nations¡¯ internal justice system to receive due process in the face of serious accusations, which includes the protection of the clear and convincing burden of proof.
The purpose of in-lieu compensation is to restore the staff member to the position he would have been in had the contested decision not taken place. Therefore, a staff member whose fixed-term appointment has been improperly terminated may be awarded no more than the compensation they would have received for the remainder of their term. Fixed-term contracts carry no expectancy of renewal and comports with the prohibition on punitive damages.