UNDT/2022/024, Saint-Lot
The Tribunal concludes from the evidence that the Applicant commented adversely on V01’s clothing during his visit to the National Committee. However, while acknowledging that the comments may have been out of line given that he had no supervisory role over the staff in the National Committee, the Tribunal does not find that evidence supports that this conduct had a sexual component. The Tribunal is satisfied that there is clear and convincing evidence that the Applicant compared V01’s age to his son while stating that he tried to avoid speaking to older women. The Tribunal is also satisfied that there is clear and convincing evidence that these comments were unwelcome by V01. The Applicant has no expertise to enter a disability diagnosis with respect to the witness, nor does he provide any evidence in support of his contention. In ligth of the entirety of the evidence, the Tribunal finds V01 credible and therefore, is satisfied that the facts are proven by clear and convincing evidence. The Tribunal is satisfied that the conduct was unwelcome and partly of a sexual nature. It therefore amounts to misconduct. The Tribunal is satisfied that the sanction was proportionate. The Applicant brings no evidence of his allegations that the charges were tainted by the rampant racism in the national committee. He brings no evidence of any other ulterior motive.
Imposition of disciplinary sanciton of written censure.
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”. 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 Tribunals 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. The Dispute Tribunal is not conducting a merit-based review, but a judicial review , which is more concerned with examining how the decision-maker reached the impugned decision and not the merits of the decision-maker’s decision. 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.