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UNAT found that the UNDT correctly concluded that the contested decision not to initiate an investigation due to the resignation of her SRO was lawful as part of a reasonable exercise of discretion. Though the term “preliminary assessment” in ST/SGB/2019/8 was not specifically used in the contested decision, it was clear that Ms. Fosse’s complaint was preliminarily assessed before the decision was made that no investigation would be undertaken. While the previous Bulletin (ST/SGB/2008/5) may have been in force when she lodged her complaint and when it was the subject of a preliminary...

There is no evidence of collusion or bias against the Applicant. On the contrary, several congruent testimonies corroborated the complainants’ statements and confirmed the allegations of bullying and harassment against the Applicant. The Applicant failed to substantiate his arguments against the complaint and the complainants. The facts are established by a preponderance of evidence and constitute misconduct.
Bearing in mind the nature of the facts attributed to the Applicant, it is not unreasonable that he be obliged to attend mandatory training to improve his managerial and communication’s...

The allegations in the Applicant’s complaint squarely [fell] in the realm of workplace disagreements about the normal exercise of managerial authority. Section 1.1 of ST/SGB/2019/8 states that “[d]isagreement on work performance or on other work-related issues is normally not considered prohibited conduct and is not dealt with under the provisions of the present bulletin but in the context of performance management”. The responsible official’s conclusion that it was unlikely that an investigation would reveal sufficient evidence to further pursue the matter as a disciplinary case (section 5.5...

The Tribunal found that the sanction in this case bore no rational connection or suitable relationship to the evidence on the record and the purpose of progressive or corrective discipline. The Applicant’s messages were mainly reactionary, and he showed great pateince in not responding to the complainant's tone. The Applicant was provoked. The Applicant identified no special circumstances which would warrant the anonymization of this matter, apart from potential personal embarrassment and discomfort, which were not sufficient grounds to grant anonymity.

There are incidents on which the Applicant had no direct knowledge. Consequently, he has no standing in filing a complaint of prohibited conduct in relation to them.

It was inappropriate for the Director, DA, UNOG, to play an instrumental role in the constitution of the investigation panel considering that he was the decision-maker in relation to one alleged incident, was a material witness in the investigation and was highly likely to be interviewed by the investigation panel. Several factors cumulatively gave rise to a reasonable perception of a conflict of interest on the part of a panel...

Preliminary matter: the use of prior conduct evidence The Applicant argues that his due process rights were violated during the investigation, particularly by the irregular use of prior conduct evidence which allegedly created a bias against him and masked the lack of clear and convincing evidence in relation to the sexual harassment complaint. The Tribunal considers it is proper and not unlawful for the Organization to consider the staff member’s background and behaviour towards others in the context of a disciplinary case, as long as it is relevant, uncontroversial and probative. UNAT...

Scope of judicial review and the contested decision The Applicant described the contested decision as a failure to implement “measures to promote a harmonious work environment and protect personnel from prohibited conduct through preventive measures”. As remedies, the Applicant sought damages for moral harm and emotional distress resulting from the Administration’s breach of its duty to ensure a harmonious work environment. Accordingly, the Applicant seeks to contest the Administration’s failure to take appropriate measures to promote a harmonious work environment and protect him from...

A false allegation of sexual harassment against the Applicant and the sensitive information regarding V01’s medical history in the present case constitute exceptional circumstances warranting anonymity.

The Administration erred in concluding that the Applicant making inappropriate comments between February and May 2018 constituted harassment of V01 and that the Applicant’s handling of V01’s complaint against Mr. N. constituted harassment and abuse of authority. The Applicant’s due process rights were respected during the investigation and the disciplinary process.

Although not constitutive...

The administrative decision to close a staff member’s complaint with no disciplinary action produces direct legal consequences affecting his/her terms and conditions of appointment. Moreover, when the claim concerns issues covered by ST/SGB/2008/5, the staff member is entitled to certain administrative procedures. If he or she is dissatisfied with their outcome, he or she may request judicial review of the administrative decisions taken. Accordingly, the application is receivable in its entirety.
The Panel did not comply with its duty to take the necessary steps to obtain the testimony of one...

UNAT considered an appeal by Mr. Ramos. UNAT held that in order for conduct to constitute sexual harassment, apart from an “unwelcome sexual advance”, it is required that the behavior in question “might reasonably be expected or be perceived to cause offence or humiliation to another, when such conduct interferes with work, […] or creates an intimidating, hostile or offensive work environment” and that “[w]hile typically involving a pattern of behaviour, it can take the form of a single incident”. UNAT was satisfied that there was clear and convincing evidence that the Mr. Ramos’ conduct as...