UNDT/2021/082, Ramos
While DD refused to give testimony to the Tribunal, and not being a United Nations staff member is not obliged to do so, this does not by itself render his interview statement inadmissible or otherwise invalid.; The Tribunal notes that the crux of the present case is whether the comments and proposals of the Applicant were of inappropriate sexual nature, or if instead, they simply concerned the security and safety of the premises or otherwise were nothing but jokes and lighthearted remarks.; As the Tribunal rejected all the Applicant’s submissions regarding the facts not having been established, it found that the factual findings set out in the sanction letter were been proved by clear and convincing evidence.; Staff regulations 1.2(a) and 1.2(f) and staff rule 1.2(f) set out a number of normative behavioral rules according to which, as relevant to the present case, staff members shall (a) not abuse the power and authority vested in them, (b) conduct themselves at all times in a manner befitting their status as international civil servants, and (c) not commit sexually harassment or other abuse in any form at the workplace or in connection with work.; ST/SGB/2008/5 prohibits four different types of conduct that are specifically defined in this Bulletin. In the present case, the USG fails to explicitly state which category of misconduct offence it is that the Applicant is found to have committed under ST/SGB/2008/5 in connection with the finding of misconduct. It follows, however, from another place in the sanction letter that the conclusion is that the Applicant has committed “harassment, including sexual harassment”. It is unclear whether this refers to “harassment”, “sexual harassment” or both types of “prohibited conduct” as per the statutory definitions in sec. 1.3 of ST/SGB/2008/5. This is evidently a procedural error.; With reference to the factual findings and the legal provisions set out in the sanction letter, as well as the Appeals Tribunal’s seminal judgment in Sanwidi, the Tribunal, nevertheless, finds that the USG acted within the scope of her discretion when concluding that the Applicant had committed misconduct during the residential security inspection in the form of sexual harassment.; As follows from the factual findings in the sanction letter and with reference to the statutory definition of sexual harassment in sec. 1.3 of ST/SGB/2008/5, the comments and proposals of the Applicant can reasonably be categorized as a “pattern of behaviour”, which in their totality amounted to “any unwelcome sexual advance, request for sexual favour, verbal or physical conduct or gesture of a sexual nature, or any other behaviour of a sexual nature” (emphasis added). Also, the comments and proposals could “reasonably be expected or be perceived to cause offence or humiliation to another, when such conduct interferes with work … or [create] an intimidating, hostile or offensive work environment”.; In accordance with staff regulations 1.2(a) and 1.2(f) and staff rule 1.2(f), the Tribunal further finds, since the Applicant acted in his official capacity as the DSS Security Adviser when conducting the residential security inspection, he was vested with a particular power and authority towards AA in the situation. Considering the Applicant’s long and distinguished United Nations career, he should also have known better than to act in the way that he did and not sexually harass AA as per the statutory definition in sec. 1.3 of ST/SGB/2008/5. Such behavior is evidently unbefitting of an international civil servant.; The Tribunal notes that staff rule 10.2(a) lists an exhaustive number of disciplinary measures of which the imposed sanction, namely separation from service with compensation in lieu of notice, constitutes the second most strict measure (the strictest sanction is dismissal). In addition, the Applicant was granted a termination indemnity, which the USG could also have decided to deny him in accordance with staff rule 201.2(a)(viii); The general trend is that in sexual harassment cases, the perpetrator has either been dismissed or separated with compensation in lieu of notice. In the latter situation, in some instances, unlike in the present case, the staff member was not given a termination indemnity. The various summarized cases included both single instances and repetitive cases of sexual harassment and also different degrees of severity. From the scant descriptions in the compendium, the present case would best fit in the category of less severe cases.; The Tribunal therefore concludes that the imposed sanction against the Applicant was in line with the general practice of the Secretary-General in cases of sexual harassment. This, however, does not mean that the imposed sanction is necessarily lawful, because the Tribunal is not bound by this practice if the Secretary-General is thereby viewed as having overstepped the scope of his discretion. In this regard, the Tribunal notes that the degree of severity is a factor that must be taken into account, and no statutory or other provisions state that all cases of sexual harassment per se must result in either dismissal or separation with compensation in lieu of notice. ; Considering the objective of the imposed sanction—separation with compensation in lieu of notice—the evident purpose is to remove the Applicant from the role as a Security Adviser with DSS. The Respondent has established that the Applicant, in this capacity, undertook an official residential security inspection of a staff member’s private home, where he made different comments and proposals with a sexual undertone. Also, the Tribunal notes that during the entire process, the Applicant has maintained that none of his comments and proposals had a sexual meaning and instead said they concerned the safety and security of the premises or labeled them as jokes or otherwise lighthearted statements, if admitting to them at all.; The Tribunal thereby finds that the Applicant has demonstrated no understanding of how his comments and proposals could have had sexual connotation, or how these comments and proposals could negatively impact AA. Such minimum level of comprehension would appear to be fundamental for a DSS Security Officer, who as part of his tasks undertake residential security assessments of staff members’ private homes. No staff member should inappropriately be put in an uncomfortable and/or harmful place in such a private and sensitive situation by the very official, whose responsibility is to secure her/his safety and security.
The decision to impose against the Applicant the disciplinary measure of separation from service, with compensation in lieu of notice, and with termination indemnity.
The judicial review of a disciplinary case requires the Dispute Tribunal to consider the evidence adduced and the procedures utilized during the course of the investigation by the Administration. In this context, the Dispute Tribunal is to examine whether the facts on which the sanction is based have been established, whether the established facts qualify as misconduct [under the Staff Regulations and Rules], and whether the sanction is proportionate to the offence. In this regard, the Administration bears the burden of establishing that the alleged misconduct for which a disciplinary measure has been taken against a staff member occurred, and when termination is a possible outcome, misconduct must be established by clear and convincing evidence. Clear and convincing proof requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt—it means that the truth of the facts asserted is highly probable.; The Administration enjoys a broad discretion in disciplinary matters; a discretion with which the Appeals Tribunal will not lightly interfere. This discretion, however, is not unfettered. When judging the validity of the exercise of discretionary authority, the Dispute Tribunal determines if the decision is legal, rational, procedurally correct, and proportionate. This means that the Tribunal can consider whether relevant matters have been ignored and irrelevant matters considered, and also examine whether the decision is absurd or perverse. It is not the role of the Dispute Tribunal to consider the correctness of the choice made by the Secretary-General amongst the various courses of action open to him or otherwise substitute its own decision for that of the Secretary-General. In this regard, the Dispute Tribunal is not conducting a merit-based review, but a judicial review explaining that a judicial review is more concerned with examining how the decision-maker reached the impugned decision and not the merits of the decision-maker’s decision.; Among the circumstances to consider when assessing the Administration’s exercise of it discretion, there can be no exhaustive list of the applicable legal principles in administrative law, but unfairness, unreasonableness, illegality, irrationality, procedural irregularity, bias, capriciousness, arbitrariness and lack of proportionality are some of the grounds on which tribunals may for good reason interfere with the exercise of administrative discretion. ; The sanction should not be more excessive than is necessary for obtaining the desired result. In assessing the seriousness of misconduct and deciding on the proportionality of a disciplinary sanction, the Appeals Tribunal it has consistently granted large discretion to the Secretary-General.