UNDT/2020/189, Conteh
Have the facts on which the disciplinary measure was based been established? The evidence on record, including the investigation report, the coherent hearsay evidence pointing to a pattern of behaviour, the consistency of the witness statements, the Applicant’s contradictory statements, and the inherent probabilities of the situation in the working and living conditions, cumulatively constitute a clear and convincing concatenation of evidence establishing, with a high degree of probability, the acts of sexual harassment. Do the established facts legally amount to misconduct? The Tribunal finds that the High Commissioner properly qualified the Applicant’s conduct towards the complainants as sexual harassment. Indeed, the Applicant’s actions constitute physical conduct of a sexual nature that might reasonably be excepted or be perceived to cause offence or humiliation to the complaints. In the present case, there is no doubt that the Applicant’s conduct in relation to the complainants was unwelcome. As a general principle of the working relationship, facts of the private life of the worker are purely their own concern and are not relevant for the imposition of a disciplinary measure. An application of this principle is in ST/SGB/2008/5, where the prohibition of discrimination, harassment, including sexual harassment, and abuse of authority requires that for the conduct to be disciplinary relevant, it must interfere with work or affect the work environment. For UNHCR, however, the definition of sexual harassment in UNHCR/HCP/2014/4 explicitly provides that sexual harassment “may occur outside the workplace and/or outside working hours”. Consequently, the Administration may impose disciplinary measures on staff members who sexually harass their colleagues in private life, in a social context and outside the work environment. This is also due to UNHCR’s specific working conditions, as in the present case, where staff members were required to live and work within a small compound next to the refugee camp, without a clear separation between private life and their work environment. The Tribunal concludes that private life and activities of a staff member may be intruded in the context of imposition of disciplinary measures within the United Nations when the highest standards of efficiency, competence, and integrity are not observed, or the behaviour may reflect on the image and reputation of the Organization or on its activities, or the activities are specifically prohibited by the Staff Regulations and Rules of the United Nations. With reference to sexual harassment, the above-mentioned aspects come into play all together. The Tribunal finds that by engaging in sexual harassment, the Applicant committed misconduct as he did not comply with his obligations under staff regulation 1.2(a) and (b), staff rule 1.2(f), para. 21 of the Standards of Conduct for the International Civil Service and paras. 4.2 and 4.3 of UNHCR/HCP/2014/4. Is the disciplinary measure applied proportionate to the offence committed? In order to properly determine the sanction, the Tribunal considers that not all misconduct must result in termination and that a gradual assessment of the possible measures should be undertaken on a case by case basis. As to sexual harassment (not combined with other additional facts of misconduct), the Tribunal considers relevant factors such as whether the behaviour of the offender is objectively unlawful or harsh, fearful, repetitive, persistent, intolerable, and incompatible with a direct and continuous supervision of the victim. These factors, especially if combined, deserve the maximal sanction, that is the offender’s dismissal or separation. However, absent globally those factors the sanction should be milder, especially when, like in the present case, none of them occurred. There is no evidence on record produced by the Respondent showing that those alleged facts concretely interfered with the work or created an intimidating, hostile, or offensive environment the conditions themselves of the harassment (perpetrated in non-working occasions and in private locations, in an atmosphere of conviviality), without any ill intent by the Applicant (see Belkhabbaz 2018-UNAT-873, para. 76) and the fact that the professional interaction of the Applicant with the complainants was rare, can lead to the conclusion that the facts had no impact (or at least a very limited impact) on the work environment. In a graduation of sanctions, the heaviest disciplinary sanctions would perhaps have been appropriate if the IGO had found evidence—in addition to the sexual harassment examined in this case—on the allegations that the Applicant had engaged in sexual relationships with his subordinates. As it results from the records and from the conclusion of the investigation report, this behaviour, however, although investigated by the IGO was not demonstrated, so the object of the consequent disciplinary proceedings was narrower. The Tribunal finds that the only demonstrated facts, which objectively are less relevant than the facts originally envisaged, deserve a more lenient disciplinary sanction. As to the proportionality test, the Tribunal believes that it must be based on objective criteria. Therefore, it is necessary to refer to the administrative practice in the disciplinary field and, moreover, to the evaluation of the proportionality made by the Courts in their case law. The Tribunal is aware of the practice of the High Commissioner in disciplinary matters and cases of criminal behaviour over the last years. The Administration often applied the sanction of dismissal or separation from service with compensation in lieu and without termination indemnity for cases of sexual harassment that entailed touching intimate parts of a person’s body, or for inappropriately touching colleagues in different occasions outside working hours, especially when the behaviour is repetitive or connected with other facts of misconduct (such as discriminatory or insulting comments, comments on physical appearance or abuse of authority). If we examine instead the United Nations Secretariat Compendium on disciplinary measures, we note that the Administration applied only a censure for verbal and physical assault, separation from service with compensation in lieu of notice for prolonged advances, and dismissal for harassment with threat or abuse of powers towards a subordinate or in case of receipt of sex and money for a job. In light of the above considerations, the Tribunal finds that the disciplinary measure imposed in this case, namely separation from service with compensation in lieu of notice and without termination indemnity, is unfair and disproportionate to the established misconduct, which deserves a more clement disciplinary sanction. Accordingly, the Tribunal rescinds the disciplinary measure imposed on the Applicant. The Appeals Tribunal recognizes the jurisdiction of this Tribunal in replacing the disciplinary sanction (after an assessment of its unlawfulness) with a different one, more adequate to the real gravity of the offense (Abu Hamda 2010-UNAT-022 see also Yisma UNDT/2011/061). In the present case, the sanction imposed must be replaced by the disciplinary measure of suspension without pay as per staff rule 10.2(iv), for a period of twelve months effective the date of the Applicant’s separation from service, that is 9 January 2018. In accordance with art. 10.5(a) of its Statute, the Tribunal shall also set an amount of compensation that the Respondent may elect to pay as an alternative to the rescission as the contested decision concerns termination. The Tribunal set it at a sum equivalent to two years of net base salary. Due process The Tribunal is satisfied that the key elements of the Applicant’s due process rights were respected as per staff rule 10.3(a). The evidence shows that the Applicant was informed of the allegations against him and of his right to seek legal assistance he was given the opportunity to comment on the allegations against him, he provided comments on the allegations of misconduct, and he was informed of the reasons for a disciplinary measure imposed on him. The Tribunal also notes that the Applicant does not argue that his due process rights were violated.
The Applicant contests the decision to separate him from service with compensation in lieu of notice and without termination indemnity.
The general standard of judicial review in disciplinary cases requires the Dispute Tribunal to ascertain: (a) whether the facts on which the disciplinary measure was based have been established (b) whether the established facts legally amount to misconduct (c) whether the disciplinary measure applied was proportionate to the offense and (d) whether the accused staff member was awarded due process in the disciplinary proceedings. When the disciplinary sanction results in the staff member’s separation from service, the alleged facts must be established by clear and convincing evidence. This standard of proof requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt. In other words, it means that the truth of the facts asserted is highly probable (see Molari 2011-UNAT-164). The principle of proportionality in a disciplinary matter is set forth in staff rule 10.3(b), which provides that “[a]ny disciplinary measure imposed on a staff member shall be proportionate to the nature and gravity of his or her misconduct”. In the context of administrative law, the principle of proportionality means that an administrative action should not be more excessive than is necessary for obtaining the desired result. The requirement of proportionality is satisfied if a course of action is reasonable, but not if the course of action is excessive. This involves considering whether the objective of the administrative action is sufficiently important, the action is rationally connected to the objective, and the action goes beyond what is necessary to achieve the objective. This entails examining the balance struck by the decision-maker between competing considerations and priorities in deciding what action to take. However, courts also recognize that decision-makers have some latitude or margin of discretion to make legitimate choices between competing considerations and priorities in exercising their judgment about what action to take. (Sanwidi 2010-UNAT-084, para. 39). The Administration has the discretion to impose the disciplinary measure that it considers adequate to the circumstances of a case and to the actions and behaviour of the staff member involved. The Tribunal is not to interfere with administrative discretion unless “the sanction imposed appears to be blatantly illegal, arbitrary, adopted beyond the limits stated by the respective norms, excessive, abusive, discriminatory or absurd in its severity” (George M’mbetsa Nyawa 2020-UNAT-1024, para. 89 and Portillo Moya 2015UNAT-523, paras. 19-21). The Appeals Tribunal has held that the Secretary-General has the discretion to weigh aggravating and mitigating circumstances when deciding upon the appropriate sanction to impose (George M’mbetsa Nyawa 2020-UNAT-1024, para. 89 and Toukolon 2014-UNAT-407, para. 31). However, the discretion of the Administration is not unfettered since it is bound to exercise its discretionary authority in a manner consistent with the due process principles and the principle of proportionally. Due deference [to the Administration’s discretion to select the adequate sanction] does not entail uncritical acquiescence. While the Dispute Tribunal must resist imposing its own preferences and should allow the Secretary-General a margin of appreciation, all administrative decisions are nonetheless required to be lawful, reasonable and procedurally fair. This obliges the UNDT to objectively assess the basis, purpose, and effects of any relevant administrative decision. In the context of disciplinary measures, reasonableness is assured by a factual judicial assessment of the elements of proportionality. Hence, proportionality is a jural postulate or ordering principle requiring teleological application (Samandarov 2018-UNAT-859 (paras. 24-25)). The ultimate test, or essential inquiry, is whether the sanction is excessive in relation to the objective of staff discipline. As already intimated, an excessive sanction will be arbitrary and irrational, and thus disproportionate and illegal, if the sanction bears no rational connection or suitable relationship to the evidence of misconduct and the purpose of progressive or corrective discipline. The standard of deference preferred by the Secretary-General, were it acceded to, risks inappropriately diminishing the standard of judicial supervision and devaluing the Dispute Tribunal as one lacking in effective remedial power (Samandarov 2018-UNAT-859 (paras. 24-25)). In determining the appropriate measure, each case is decided on its own merits, taking into account the particulars of the case, including aggravating and mitigating circumstances. Aggravating factors may include repetition of the acts of misconduct, intent to derive financial or other personal benefit, misusing the name and logo of the Organization and any of its entities, and the degree of financial loss and harm to the reputation of the Organization (see Yisma UNDT/2011/061, para. 29). Mitigating circumstances may include long and satisfactory service with the Organization, an unblemished disciplinary record, an employee’s personal circumstances, sincere remorse, restitution of losses, voluntary disclosure of the misconduct committed, or coercion from third parties (see Yisma UNDT/2011/061, para. 29). This list of mitigating and aggravating circumstances is not exhaustive. Apart from exceptional circumstances, compensation in lieu “shall normally not exceed the equivalent of two years’ net base salary of the applicant” (see Mushema 2012-UNAT247 Liyanarachchige 2010-UNAT-087 Cohen 2011-UNAT-131 Harding 2011UNAT-188). The amount of in lieu compensation will essentially depend on the circumstances of the case (Mwamsaku 2012-UNAT-246) and “due deference shall be given to the trial judge in exercising his or her discretion in a reasonable way following a principled approach” (Ashour 2019-UNAT-899, para. 21).