UNDT/2018/095, Nadasan
The established facts considered in their entirety amount to misconduct in the form of sexual harassment. Sexual harassment can manifest itself in different forms, its determination is fact specific, and its occurrence is not limited to work places during work hours. The Applicant’s conduct amounts to sexual harassment in violation of staff rule 1.2(f). A plain reading of the Applicant’s Facebook messages shows their sexual nature. Moreover, in the Tribunal’s view, the Applicant was put on notice that his sexual advances were unwelcome by Ms. X’s text message in July 2012 requesting that he stop contacting her. However, the Applicant continued sending sexually oriented messages to Ms. X. In this context, the Applicant’s actions can reasonably be perceived as intimidating, lacking sensitivity and were in pursuit of his own personal gratification. The Applicant has shown no understanding of the impact of his conduct on Ms. X and seems to still be under the impression that sexual harassment cannot occur in a situation where the harasser has romantic longerterm relationship interests in the complainant. The subjective belief of the victim must be taken into account in determining whether sexual harassment has occurred. The Tribunal is satisfied that the investigation respected the formal requirements set out in ST/SGB/2008/5 and that the Applicant was afforded due process. The evidence shows that the USG/DM considered, as mitigating factors, the period of time taken to resolve the matter, the Applicant’s long service with the Organization, including services at various field missions, and the Applicant’s claimed stress from a heavy workload and difficult work environment. All of these factors were taken into account in determining the disciplinary measure to be imposed.
The imposition of a disciplinary sanction of separation from service with compensation in lieu of notice and with termination indemnity, under staff rule 10.2(a)(viii).
The consistent jurisprudence of the Appeals Tribunal in cases concerning the imposition of a disciplinary measure is that the Dispute Tribunal must verify if a three-fold test is met as follows: (1) whether the facts on which the disciplinary measure was based have been established (2) whether the established facts qualify as misconduct and (3) whether the sanction is proportionate to the offence. It is also incumbent on the Tribunal to determine if any substantive or procedural irregularity occurred, either during the conduct of the investigation or in the subsequent procedure. The Tribunal is not vested with the authority to conduct a fresh investigation of the initial harassment allegations. It is not the Tribunal’s role to substitute its own judgment for that of the Secretary-General. However, the Tribunal may draw its own conclusions from the evidence collected by the fact-finding panel. The Panel maintains the discretion to determine how to conduct the investigation of a complaint, including who may have relevant information about alleged conduct and the extent to which additional enquiries and/or evidence may be required to reach a conclusion in regard to the issues under investigation. The jurisprudence on proportionality of disciplinary measures provides that the Tribunal will give due deference to the Secretary-General unless the decision is manifestly unreasonable, unnecessarily harsh, obviously absurd or flagrantly arbitrary. Should the Dispute Tribunal establish that the disciplinary measure was disproportionate, it may order imposition of a lesser measure. However, it is not the role of the Dispute Tribunal to second-guess the correctness of the choice made by the Secretary-General among the various reasonable courses of action open to him. Nor is it the role of the Tribunal to substitute its own decision for that of the Secretary-General. The past practice of the Organization in cases involving sexual harassment shows that disciplinary measures have been imposed at the strictest end of the spectrum, namely, separation from service or dismissal in accordance with staff rule 10.2(a).