UNDT/2022/048, Applicant
A false allegation of sexual harassment against the Applicant and the sensitive information regarding V01’s medical history in the present case constitute exceptional circumstances warranting anonymity.
The Administration erred in concluding that the Applicant making inappropriate comments between February and May 2018 constituted harassment of V01 and that the Applicant’s handling of V01’s complaint against Mr. N. constituted harassment and abuse of authority. The Applicant’s due process rights were respected during the investigation and the disciplinary process.
Although not constitutive of misconduct, some of the Applicant’s comments may not be appropriate. The Administration correctly concluded that the Applicant violated staff regulation 1.2(a) by failing to uphold and respect the dignity and worth of a human person and violated staff regulation 1.2(b) by failing to uphold the highest standards of competency and integrity.
The contested decision is unlawful except for the imposition of the managerial action on the Applicant. The Tribunal rescinds the contested decision except for that related to the managerial action and sets aside the disciplinary measures. The Tribunal directs the Respondent to pay to the Applicant the amount of his lost earnings resulting from the loss of five steps and to remove the disciplinary measures from his official status file.
The Tribunal compensates the Applicant in the amount of USD10,000 as remedy for his loss of opportunity for career advancement. The Tribunal denies the Applicant’s request for the award of compensation for reputational harm.
The Applicant contests the decision to impose on him the disciplinary sanction of loss of five steps, and deferment for two years of eligibility for consideration for promotion, as well as the managerial action of requiring him to take training to improve his gender awareness and managerial sensitivity towards handling harassment issues.
Names of litigants are routinely included in judgments of the internal justice system of the United Nations in the interests of transparency and accountability. Personal embarrassment and discomfort are not sufficient grounds to grant confidentiality. Any deviation from the principles of transparency and accountability can only be granted if there are exceptional circumstances.
Judicial review of a disciplinary case requires the Tribunal to consider the evidence adduced and the procedures followed during an investigation by the Administration. The Administration bears the burden of establishing that the alleged misconduct for which a disciplinary measure has been taken against a staff member occurred. The standard of proof applicable to a case where the disciplinary measures do not include separation or dismissal is that of preponderance of evidence.
In assessing whether misconduct has been established, due deference should be given to the Secretary-General. The matter of the degree of the sanction is usually reserved for the Administration, who has discretion to impose the measure that it considers adequate to the circumstances of the case, and to the actions and behaviour of the staff member involved. Due deference does not entail uncritical acquiescence. The Tribunal interferes with this administrative discretion if “the sanction imposed is blatantly illegal, arbitrary, adopted beyond the limits stated by the respective norms, excessive, abusive, discriminatory or absurd in its severity”. The principle of proportionality means that an administrative action should not be more excessive than is necessary for obtaining the desired result.
The principles of equality and consistency of treatment in the workplace dictate that where staff members commit the same or broadly similar offences, the penalty, in general, should be comparable. The Secretary-General has discretion to weigh aggravating and mitigating circumstances when deciding the appropriate sanction to impose. Such discretion is not unbounded. The Tribunal may “consider whether relevant matters have been ignored and irrelevant matters considered”.
Harm must be supported by evidence. It is not enough to demonstrate an illegality to obtain compensation. The claimant bears the burden of proving the existence of negative consequences and damages resulting from the illegality on a cause-effect lien.