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The UNAT held that the UNDT erred in finding that ST/SGB/2003/13 imposes a requirement of “undue advantage” for sexual exploitation to occur.  The UNAT further found that the former staff member abused the position of vulnerability of V01 for sexual purposes (i.e., engaging in at least four acts of sexual intercourse), which constitutes sexual exploitation and abuse.  The UNAT emphasized that the UNDT itself acknowledged that V01, allegedly a minor, was vulnerable and less powerful than the former staff member, and that his actions had a sexual connotation.  Therefore, the UNAT held that the...

On whether the facts were established by clear and convincing evidence, the Tribunal held that, based on the credible testimony and the other evidence in the record, the Respondent had established by clear and convincing evidence that the Applicant committed the acts upon which the disciplinary measure was imposed. The Tribunal found the testimony of the victim to be credible and established that the Applicant had indeed sexually harassed the victim. Regarding misconduct, the Tribunal concluded that there was sufficient evidence of sexual harassment and which did constitute serious misconduct...

Under “Preliminary Issues”, the Tribunal decided to strike from the record the Applicant’s motion for anonymity and to exceptionally accept the Applicant’s closing submission which exceeded the page limit.

Whether the facts on which the disciplinary measure was based have been established by evidence and up to the required standard of proof.

The Tribunal noted that the sanction was based on four allegations, which it considered separately. After having considered the evidence on record for each allegation, the Tribunal found that it had been established by clear and convincing evidence that...

The UNAT held that the UNDT committed an error of procedure such that it affected the outcome of the case in not holding an oral hearing and relying significantly on the OAIS investigation report to corroborate the truth of the events alleged by the Complainant, when there was no direct witnesses to the alleged misconduct and all the witnesses relied upon by the OAIS investigators obtained their evidence and information from the Complainant.  As such, the UNAT concluded that their evidence was hearsay evidence and that the prejudice to the Appellant in admitting and relying upon this evidence...

The UNAT first concluded that the UNDT erred by failing to specify whether the alleged misconduct of sexual exploitation had been established to the required evidentiary standard of clear and convincing evidence.  Second, the UNAT held that the UNDT had erred in concluding that the victim was a vulnerable person, that Mr. Stefan was aware of her vulnerability, and that he sexually exploited her vulnerability.  The UNAT held that the UNDT erred when it made this finding without any independent or medical evidence, and that the UNDT had relied on its own Internet research regarding various...

The UNAT first dismissed Mr. Okwakol’s appeal of the UNDT Order, finding that  Mr. Okwakol’s complaints about what the UNDT decided it would admit into evidence and what submissions it would consider in deciding his substantive case, were remediable as part of his appeal on the merits if they were wrongly decided.

The UNAT agreed that the UNDT was correct to admit the audio-recording made by the SEA victim because this evidentiary material was relied upon by the Administration in taking the decision to impose the disciplinary measure of separation from service.  The audio-recording needed to...

The Applicant was sanctioned for engaging in two types of misconduct: (i) sexually exploiting V01, and (ii) engaging in a misrepresentation to the Organization and a misappropriation of assets from the Organization regarding Family Emergency Leave from 22 until 27 July 2019. On whether the facts were established by clear and convincing evidence; regarding the first sanction of sexually exploiting V01, the Tribunal concluded that based on the finding that the Applicant was aware of V01’s vulnerability, the evidence that he continued to have sexual intercourse with her even at times when she had...

On the due process prong, the Tribunal concluded that the Applicant’s procedural fairness rights were respected throughout the investigation and the disciplinary process. The Applicant was interviewed by the Office of Internal Oversight Services and was provided with an audio-recording of the interview. He was provided all supporting documentation, was informed of the allegations against him, his right to seek the assistance of counsel and he was provided the opportunity to comment on the allegations; and his comments were duly considered. Accordingly, the Tribunal held that the Applicant’s...

On the due process prong, the Tribunal concluded that the Respondent had demonstrated that the investigation and the disciplinary process leading up to the disciplinary sanction were conducted in accordance with the applicable legal framework and investigation guidelines. The Applicant was interviewed and was provided with an audio-recording of the interview, and all supporting documentation. He was informed of the allegations against him and afforded his right to seek the assistance of counsel. He was provided the opportunity to comment on the allegations, and his comments were duly...

UNAT made several findings on the appeal. First, UNAT held that UNDT did not err when it did not hold a case management or substantive hearing on the issues. UNAT agreed that the first instance Judge is in the best position to decide what is appropriate for the fair and expeditious disposal of a case and to do justice to the parties. Second, UNAT agreed with the UNDT that the administrative action was not a disguised disciplinary sanction. UNAT also found that the USG had the authority to transfer the appellant to a different unit to address a political situation. However, UNAT disagreed with...