UNDT/2022/115, Nkoyock
There is no evidence of collusion or bias against the Applicant. On the contrary, several congruent testimonies corroborated the complainants’ statements and confirmed the allegations of bullying and harassment against the Applicant. The Applicant failed to substantiate his arguments against the complaint and the complainants. The facts are established by a preponderance of evidence and constitute misconduct.
Bearing in mind the nature of the facts attributed to the Applicant, it is not unreasonable that he be obliged to attend mandatory training to improve his managerial and communication’s style in addition to the imposition of a disciplinary sanction. There is no legal obstacle to the cumulative application of disciplinary sanctions and managerial action.
In cases touching upon allegations of harassment/work environment, the whole professional background of the employee, including past administrative or disciplinary sanctions, are relevant considerations. Entertaining past behaviour (prior conduct evidence) is limited, however, to conduct and/or instances that have been properly and sufficiently investigated.
The Administration properly exercised its managerial discretion by considering the Applicant’s record in applying two cumulative sanctions, particularly in considering a previous written reprimand as an aggravating factor.
The Organization did not demonstrate that it was impossible to select panel members from the department, office or mission concerned, before choosing individuals trained in investigating allegations of prohibited conduct registered in the roster. The Applicant did not meet the burden of proof that such a procedural error negatively impacted the outcome of the investigation or his defence rights. Accordingly, the procedural irregularity that the Applicant raised does not by itself invalidate or nullify the entire investigation and disciplinary process.
The investigation panel did not exceed its mandate. The investigation panel, as mandated, issued conclusions on whether the investigated facts had been established. The Applicant’s due process rights were fully respected throughout the investigation stage and the disciplinary process.
The Applicant contests the disciplinary sanction of loss of three steps in grade and deferment for three years of eligibility for consideration for promotion, together with a requirement to attend on-site or online interactive training on workplace civility and communication, for creating a hostile, offensive and humiliating work environment between 2015 and 2018 when he was Officer-In-Charge (“OiC”).
The standard of proof applicable to a case where the disciplinary measures do not include separation or dismissal is that of preponderance of evidence. Pursuant to sec. 9.1(b) of ST/AI/2017/1, this means that the Administration must prove more likely than not, that the facts and circumstances underlying the misconduct exist or have occurred. In the case at hand, dismissal is not at stake.
The Organization has the burden of proof to demonstrate the alleged misconduct. An applicant must provide evidence substantiating his arguments to successfully challenge the facts that an investigation established.