2023-UNAT-1384, Humphreys Timothy Shumba
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 without the opportunity to question it was significant.
Moreover, the UNAT held that the UNDT also erred on a question of fact resulting in a manifestly unreasonable decision when it found that the alleged misconduct had been proven by clear and convincing evidence. The UNAT concluded that it was not an instance in which the UNDT could forgo an oral hearing as there was a genuine dispute of fact and that the evidence in record cannot attain the standard of clear and convincing evidence due to internal inconsistencies in the witnesses’ statements to the OAIS investigators.
The UNAT held that considering the delays in this matter and that the facts of this case occurred more than eight years ago, it was more than doubtful that the witnesses would still be available and, therefore, it would not be in the interest of justice and would be impracticable to remand the matter to the UNDT to conduct an oral hearing.
The UNAT granted the appeal and reversed Judgment No. UNDT/2022/103.
The Appellant, a former staff member of the Office of the United Nations Population Fund (UNFPA), contested the decision of the Administration to summarily dismiss him for sexual harassment, sexual exploitation and abuse of a youth volunteer for a UNFPA Implementing Partner. In its Judgment No. UNDT/2022/103, the UNDT concluded, without conducting an oral hearing, that there was clear and convincing evidence of serious misconduct and dismissed the Appellant’s application.
Applications against a contested decision imposing a disciplinary measure differ significantly from a conceivable judicial review of the fairness of the OAIS investigation and the reasonableness of its decision. Therefore, it will be unlikely that the Administration can discharge its burden before the UNDT to establish the relevant facts by clear and convincing evidence based solely on the investigation report and entirely hearsay evidence, without an oral hearing. On the contrary, the UNDT is required to engage in a fact-finding exercise and the general rule is that for disciplinary cases, it will normally conduct oral hearing except in specific instances where it is not necessary with regard to the evidence and circumstances of the case.
Hearsay evidence is evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence. The admission of adverse hearsay evidence by definition denies a party the right to challenge it effectively and fairly since the declarant is not before the tribunal and cannot be cross-examined. For that reason, hearsay is usually given lesser weight and is normally not admitted or relied upon if it is used to prove the truth of the hearsay statement but only to support the fact that the statement was made.
Hearsay may be admitted and relied upon having regard to: i) the nature of the proceedings; ii) the nature of the evidence; iii) the purpose for which the hearsay evidence was tendered; iv) the probative value of the hearsay evidence; v) the reason why the evidence was not given by the person upon whose credibility the probative value of the evidence depends; and vi) the prejudice to a party, which the admission of such evidence might entail.
The Secretary-General is directed to expunge the name of Mr. Shumba from the ClearCheck database. In the event the Secretary-General elects not to rescind the contested decision, compensation in lieu is set at two years' net base salary.