Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
The former staff member was placed on Administrative Leave Without Pay (ALWOP) pending the conclusion of an investigation into him for misconduct. At the time that the decision-maker considered extending the ALWOP period, only a Draft Office of Internal Oversight Services (OIOS) Report was available.
The Ä¢¹½ÊÓƵAT held that the Ä¢¹½ÊÓƵDT erroneously and definitively substituted its own determination of the facts for that of the Administration. It erroneously admitted after-the-fact independent forensic reports as relevant to the reliability of the evidence cited by OIOS, when these reports were not before the decision-maker (the Director of the Bureau for Management Services or BMS Director) when the contested decision was taken.
The Ä¢¹½ÊÓƵAT found that the Ä¢¹½ÊÓƵDT erred in ordering the disclosure of, and placing reliance on, the Final OIOS Report and its Annexes, when this Report did not constitute the material before the BMS Director when the contested decision was taken and was therefore not relevant to the Ä¢¹½ÊÓƵDT¡¯s review of the contested decision.
The Ä¢¹½ÊÓƵAT found that the Ä¢¹½ÊÓƵDT erred in approaching the matter as if it was engaged in a review of a disciplinary measure, with the clear and convincing evidence standard of proof, as opposed to the review of a decision to extend a period of ALWOP. It failed to assess whether the decision to place the staff member on ALWOP was legal, rational, procedurally correct, and proportionate, and whether the decision-maker had exercised their discretion in relation to the findings that exceptional circumstances existed properly and according to the required standard of balance of probabilities.
The Ä¢¹½ÊÓƵAT held that the Ä¢¹½ÊÓƵDT erred in examining the administrative decision as if it was disciplinary in nature. In doing so, it prejudged the case, prior to the conclusion of the disciplinary process, without a full trial of the issues or a forensic determination of the sufficiency of the evidence.
The Ä¢¹½ÊÓƵAT found that the instances in the Draft OIOS Report of sexually-charged verbal comments, messages of a sexual nature, and inappropriate touching between the staff member and several different women presented a clear risk to the Organization in that such conduct creates a hostile work environment and one which exposes staff members to the risk of sexual harassment, abuse and exploitation. This alone was sufficient, cogent and compelling evidence that the staff member had misused his position of authority and engaged in sexual conduct which was improper and not that required of an international civil servant. Given this Draft OIOS Report, the Ä¢¹½ÊÓƵAT held that the ALWOP decision taken by the BMS Director was a lawful, reasonable and proportionate exercise by the Administration of its discretion and the Ä¢¹½ÊÓƵDT erred in reaching a different conclusion.
The Ä¢¹½ÊÓƵAT granted the appeal and reversed the Ä¢¹½ÊÓƵDT Judgment.
Decision Contested or Judgment/Order Appealed
A former staff member of the United Nations Development Program contested the decision of 20 August 2024 to extend his placement on Administrative Leave Without Pay from 25 August 2024 to 24 November 2024, pending conclusion of the investigation into allegations of sexual harassment.
In Judgment No. Ä¢¹½ÊÓƵDT/2025/047, the Ä¢¹½ÊÓƵDT granted his request to rescind the contested decision and ordered that he was entitled to retroactive reinstatement to the status quo prior to 20 August 2024, with all the economic consequences.
The Secretary-General appealed.
Legal Principle(s)
The placement of a staff member on Administrative Leave Without Pay (AWLOP) is an extraordinary measure designed to be of short duration given that it imposes a hardship on a staff member. In determining whether circumstances are exceptional, such as to justify ALWOP, two elements must be present: the alleged unsatisfactory conduct of the staff member must be grave enough to warrant separation from service, (with or without notice and/or indemnity) or dismissal; and the decision to place a staff member on ALWOP must be based on information which on a preponderance of probabilities, or more likely than not, proves the staff member engaged in the unsatisfactory conduct. Given the hardship caused by the placement of a staff member on ALWOP, the onus is on the Administration to prove that exceptional circumstances exist.