UNDT/2022/087

UNDT/2022/087, Kazazi

UNAT Held or UNDT Pronouncements

On whether the facts were established by clear and convincing evidence, the Tribunal found that the Applicant engaged in acts affecting two staff members, namely V01 and V02. The Tribunal thus held that the facts on which the sanction was based were clearly established.

Regarding misconduct, the Tribunal concluded that the Applicant’s conduct towards V01 and V02 was (i) unwelcome, (ii) of a sexual nature, and (iii) they might reasonably be expected or be perceived to cause offence or humiliation. Further, his conduct interfered with their work and/or created for them an intimidating, hostile and offensive work environment. Accordingly, the Tribunal found that the Applicant’s acts amounted to misconduct.

On the due process prong, the Tribunal found that the Respondent had demonstrated that the investigation and the disciplinary process leading up to the disciplinary sanction were conducted in accordance with the applicable legal framework and investigation guidelines. The Applicant was interviewed and was provided with an audio-recording of the interview and all supporting documentation. He was informed of the allegations against him and afforded his right to seek the assistance of counsel. He was provided the opportunity to comment on the allegations, and his comments were duly considered. The Tribunal thus held that the Applicant’s due process rights were respected during the investigation and disciplinary process.

On whether the sanction was proportionate to the offence, the Tribunal concluded that the sanction imposed on the Applicant accorded with the practice of the Secretary-General in similar cases, was not the severest sanction available and accorded with the policies of the Organization. The Applicant engaged in serious misconduct, affecting two staff members, V01 and V02 and there were multiple incidents of sexual harassment over a period of approximately one month. Accordingly, the sanction of separation from service was proportionate to the offence.

Decision Contested or Judgment Appealed

The Applicant contested the decision to impose on him the disciplinary measure of separation from service with compensation in lieu of notice and without termination indemnity, in accordance with staff rule 10.2(a)(viii), and to enter his name in the United Nations Clear Check Database.

Legal Principle(s)

Pursuant to the jurisprudence, the role of the UNDT in disciplinary cases is to perform a judicial review of the case and assess the following elements:

i. Whether the staff member’s due process rights were guaranteed during the entire proceeding.

ii. Whether the facts were established by clear and convincing evidence;

iii. Whether facts amount to misconduct; and

iv. Whether the sanction is proportionate to the gravity of the offence.

Outcome

Dismissed on merits

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The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.

Full Judgment

Applicants/ Appellants

Kazazi

Entity

UNAMID

Case Number(s)

UNDT/NBI/2021/100

Tribunal

UNDT

Registry Location :

Nairobi