UNDT/2013/038, Santos
The Respondent contended that the allegations of sexual harassment had been established after a proper investigation, that the disciplinary measures were appropriate and proportionate and that the Applicant had agreed to the imposition of these disciplinary measures. The Tribunal found that: (1) The OHRM had mischaracterized the Applicant’s offence as “sexual harassment†rather than “harassment†and failed to follow its own procedures in “the Guidelines on consideration for conversion to permanent appointment of staff members of the Secretariat eligible to be consideredâ€; (2) There was a breach of the duty of good faith and fair dealing in that the Applicant was induced into entering into an agreement to accept certain disciplinary measures without being properly informed of the possible or probable effect of voluntarily accepting the disciplinary measures on his prospects of obtaining a permanent appointment; (3) When recommending to the CRB not to convert the Applicant’s contractual status to a permanent appointment, OHRM should have undertaken a proper examination of the underlying facts, which would have led it to apprehend its previous mistakes and that OHRM therefore breached the Applicant’s right to have a proper assessment of his eligibility and suitability to have his contractual status being converted to a permanent appointment; (4) The Applicant was entitled to non-pecuniary damages for distress and the decision to deny him a permanent appointment was rescinded..
The Applicant appealed his contractual status not being converted into a permanent appointment based on what he perceived as him having wrongly been disciplined for sexual harassment.
The judicial review of a case of non-conversion to permanent appointment: It is not within the purview of the Tribunal’s judicial review to replace the role of the Administration when considering a staff member for permanent appointment. However, the Tribunal may consider whether the Administration undertook a proper review of the case before it, including whether it was decided on the basis of well-documented facts and not erroneous, inconsistent or fallacious grounds such as incorrect legal findings and inducement.Sexual harassment is different from harassment: Former staff rule 101.2(d) specifically sets out the different forms of harassment, which may occur in the workplace. It will be noted from the different definitions of “sexual harassment†and “harassment†in ST/SGB/2008/5 that these cover two distinctively separate behaviours albeit both being unacceptable. “Sexual harassment†is explicitly defined in sec. 1.3 in terms of the sexual content or nature of the relevant behaviours.Negotiating a disciplinary measure: Pursuant to the generally implied requirement of good faith and fair dealing between parties to an agreement, it is reasonable to assume that the Administration, when negotiating an agreement on a disciplinary measure, has a duty to inform the staff member about any foreseeable consequence of that agreement, including, in particular, any possible adverse consequencesAward of non-pecuniary damages: An award for non-pecuniary damages should be expressed as a lump-sum rather than in terms of net base salary. After all, the Tribunal is assessing the degree of injury suffered by the individual and quantifying the award accordingly. This exercise is not related to the status or seniority of the individual and an award should therefore not be related to the individual earning, but to the actual distress suffered. Each case is to be assessed on its own facts and the unique characteristics of the individual, the manner in which s/he has been treated and the impact of the treatment on the individual concerned. A principled approach minimises the risk of awards being disproportionate.