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The situation of the present case is that only two persons, namely the Applicant and AA, were present when the alleged sexual abuse occurred, and they have presented contradictory witness testimonies. As the case involves termination, the question for the Tribunal to determine is therefore whether the Respondent has established with clear and convincing evidence that the factual background upon which the disciplinary sanction is well-founded. This means that AA’s testimony is highly probable whereas, in consequence, the Applicant’s testimony is not reliable.

With reference to the Tribunal’s...

The essential question for determination on appeal is whether the UNDT correctly held that the alleged misconduct of creating a hostile work environment and giving of gifts was proved in accordance with the standard of clear and convincing evidence. In other words, did the evidence establish the alleged misconduct to a high degree of probability? At its essence, therefore, this case involves strongly contested disputes of fact about whether AAC conducted himself in a manner that was abusive and created a hostile working environment. The Administration says he did. AAC strongly denies it. Thus...

Mr. Krioutchkov appealed. UNAT found that the UNDT correctly held that the timing of the written test was justifiable in that holding the test at a set hour worldwide was a rational way of avoiding leaks of the test materials. The inconvenience to the Administration of accommodating different test schedules outweighed the inconvenience of Mr. Krioutchkov being required to adjust his schedule. The scheduling decision was accordingly reasonable. Moreover, having refused to participate in the written examination, Mr. Krioutchkov was estopped from challenging the non-selection decision. UNAT found...

UNAT held that the UNDT erred both in not permitting the Appellant to call a witness (AA) and in the incorrect conclusions it drew from her hearsay evidence. UNAT held that, to the extent that BB (a non-UN staff member) was a witness adverse to the Appellant, the failure of the Secretary-General to secure her attendance before the UNDT permitted an adverse inference which detracted considerably from the credibility and reliability of her allegations in the OIOS investigation report. UNAT held that little weight could be attached to the evidence of two unidentified UN staff members, to whom the...

UNAT first explained that this is a case where the UNDT should have held a hearing to determine the states of mind of those persons who decided that the Staff Member should not have been placed on the roster. The Tribunal defined bias as follows: (paras. 29 - 32) "29. Bias is an element of natural justice which examines not only the mind of the decision‑maker subjectively, but the manifestation of the process of decision-making examined objectively. Put another way, a decision is not only biased if made by a decision‑maker deliberately intending to favour or disadvantage the subject of it for...

UNAT affirmed the UNDT award of compensation for loss of earnings for seven months from the date of the staff member’s separation from service to the date of the UNDT judgment (as an alternative to the order for reinstatement of the staff member) plus an additional amount of two years’ net base salary. The Secretary-General maintained that, while the total of these amounts exceeded the compensation limit of two years’ net base salary, UNDT did not particularize any reasons to justify an increased award under Article 10.5(b) of the UNDT Statute. UNAT held that Article 10.5(b) does not require a...

UNAT held that UNDT had erred in law by upholding the decision to summarily dismiss the staff member, which was taken in violation of the requirements of adversarial proceedings and due process. UNAT held that, while the use of statements gathered in the course of an investigation from witnesses who remain anonymous throughout the proceedings, including before UNAT, cannot be excluded as a matter of principle from disciplinary matters, a disciplinary measure may not be founded solely on anonymous statements. UNAT ordered rescission of the contested decision to summarily dismiss the staff...

UNAT held that UNDT erred in failing to consider adequately the Appellant’s evidence, noting she was not given the opportunity to prove her case, including allegations of discrimination, at the UNDT hearing, which included the opportunity to call evidence and to challenge the Administration’s evidence. UNAT held that UNDT erred in law in allowing testimony to be given at the hearing that was neither sworn, affirmed, nor made under a promise, to tell the truth. UNAT allowed the appeal, set aside the UNDT judgment and ordered reinstatement or the award of compensation in lieu of reinstatement in...

UNAT preliminarily held that the appeal should be regarded as timely because the initial submission in Arabic was received within the prescribed time limit. UNAT noted that the fact-finding committee acted in an objective and responsible manner in conducting its investigation and assessing the charges. UNAT noted that there was clear and convincing evidence supporting a finding of misconduct, which was not successfully rebutted by the Appellant, which alone was a sufficient basis for the impugned decision. Given the established misconduct and the seriousness of the incident, UNAT held that it...

As a preliminary issue, UNAT held that UNDT did not err in declining to hear the proffered evidence from witnesses for the Appellant, as the testimonies related to facts that were not specifically in dispute and could not have refuted the uncontested fact that the decision had been confirmed. UNAT held that the Appellant failed to demonstrate that UNDT erred in concluding that the confirmation decision was lawful and in awarding her compensation only in the amount of the Special Post Allowance she would have received. UNAT held that UNDT did not err by failing to order the Appellant’s...