Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
The Ä¢¹½ÊÓƵAT held that the Ä¢¹½ÊÓƵDT did not err in concluding that the Administration lawfully imposed the disciplinary measure of demotion by one grade with deferment for three years of promotion eligibility and gender?sensitivity training. The Ä¢¹½ÊÓƵAT found that the Ä¢¹½ÊÓƵDT correctly applied the governing legal framework, including Staff Rule 1.2(f) and ST/SGB/2008/5, in determining that the staff member¡¯s conduct, an inappropriate remark referencing nudity and a stroking gesture, physical intimidation of a colleague, and leering at female staff, constituted sexual harassment and workplace harassment.
The Ä¢¹½ÊÓƵAT further found that the Ä¢¹½ÊÓƵDT properly applied the correct evidentiary standards, requiring clear and convincing evidence for sexual harassment and preponderance of the evidence for other misconduct, and that these standards were met. The Ä¢¹½ÊÓƵAT also held that the staff member¡¯s due process rights were respected throughout the investigation and disciplinary process. Moreover, the Ä¢¹½ÊÓƵAT determined that the sanction was proportionate to the nature and gravity of the misconduct, taking into account aggravating and mitigating factors, and that the Administration acted within its broad discretion in disciplinary matters.
Therefore, the Ä¢¹½ÊÓƵAT dismissed the appeal and affirmed Judgment No. Ä¢¹½ÊÓƵDT/2024/080.
Decision Contested or Judgment/Order Appealed
A staff member of the United Nations Office on Drugs and Crime (Ä¢¹½ÊÓƵODC) contested the Administration¡¯s decision to impose the disciplinary measure of demotion by one grade with deferment for three years of consideration for eligibility for promotion, and to require him to undertake gender?sensitivity training. The measure was imposed after findings of sexual harassment and workplace harassment, including an inappropriate remark referencing nudity and a stroking gesture, physical intimidation of a colleague, and leering at female staff.
The Ä¢¹½ÊÓƵDT, in Judgment No. Ä¢¹½ÊÓƵDT/2024/080, dismissed the application on the merits, finding that the Administration had established the misconduct on the applicable evidentiary standards, respected due process, and imposed a sanction that was lawful and proportionate.
Staff member appealed.
Legal Principle(s)
To find that misconduct which justifies the termination of a staff member¡¯s employment has been established, the evidence must be found to reach the standard of clear and convincing. This requires that the truth of the facts asserted is accepted to be highly probable. For any other disciplinary measure to be proved, the standard of proof is that of preponderance of the evidence, which requires a finding that, more likely than not, the facts and circumstances behind the misconduct exist or have occurred.
There is no requirement that, before a disciplinary measure may be imposed, a trial must be conducted which meets the high standard of a civil or criminal trial. Where the relevant evidence has been gathered by an investigator and such evidence has been put to the staff member, who has been given an opportunity to answer to or rebut such evidence, it may be determined that the process has met an acceptable threshold. What is required at a minimum is that where conflicting versions of events exist, such versions must be carefully tested to allow a determination as to the credibility, reliability and probabilities of one version over another.
By its nature, the multicultural environment of international civil service implies a duty of discretion devoir de r¨¦serve on international civil servants. As such, an international civil servant is expected to avoid misunderstandings which may arise due to cultural differences, especially when there is a risk of double-meaning.