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Testimony of anonymous witnesses: The Tribunal held that the testimony of witnesses whom the Applicant has not had the opportunity to confront in proceedings is not inadmissible per se. However, a decision adverse to a staff member in a disciplinary case may not be based solely on this. There must be some independent evidence that can confirm the anonymous testimony, especially where the staff member has not had a chance to confront the witnesses and therefore challenge any incriminating evidence they have given against the staff member. The Tribunal also held that the requirements of due...

The Applicants argue that the facts were not established and that their actions did not amount to misconduct, since they were acting in self-defense or in defense of someone else. The Tribunal noted that video evidence, i.e. hotel security camera footage, constituted the only reliable evidence to establish the facts in the instant case and concluded that the Applicants, who were on an official mission at the material time, initiated the dispute and the physical altercation and did not act in self-defense when they assaulted a security guard. Accordingly, the UNDT found that the facts...

The UNDT found that the facts in this case have not been established to the required standard, that is, the alleged misconduct has not been established by clear and convincing evidence. The Respondent’s case was based on inconclusive evidence linked together by certain inferences and assumptions, without other possible explanations having been given due weight and consideration. As the facts have not been established, the Applicant’s actions cannot be classified as misconduct and no disciplinary measures should have been applied to the Applicant. The UNDT found that this case was not marred by...

The Tribunal found that the Applicant’s due process rights had been respected, that the facts on which the disciplinary measure was based were established and amounted to misconduct, and that the disciplinary measure was proportionate to the offence, and rejected the application. Misconduct: Under the relevant rules, misrepresentation, forgery or false certification in connection with an official claim or benefit—which can include failure to disclose a fact material to that claim or benefit—can be “wilful, reckless or grossly negligent”. Gross negligence is defined as “an extreme or aggravated...

Standard of proof in disciplinary cases - In disciplinary proceedings it is well settled now that the evidence must be clear and convincing and that would include identification evidence. Evidence of misconduct must be clear and convincing. Findings of fact by the trial judge - As a trier of facts, a first instance judge has the means and power to assess the veracity and accuracy of a witness. The findings of fact of a trial judge should rarely be reversed on appeal unless the findings are so perverse that no reasonable person would have come to the conclusions reached on the facts by the...

The Tribunal found that there was clear and convincing evidence that on the morning of 9 February 2015, at his office, the Applicant commited misconduct. The established facts legally amounted to misconduct, in violation of the norms consistently upheld by the Organization since at minimum 1992, where sexual harassment was described as unacceptable behaviour for the staff of the United Nations, and reiterated through, among other, outlawing, in 2003, sexual exploitation and abuse as serious misconduct warranting a summary dismissal, and through a detailed anti-harassment and abuse of authority...

UNDT was satisfied, based on the evidence, that the Applicant was prepared to use his power and influence to make life in the United Nations difficult for the Complainant if she pursued her complaint against him. UNDT held that this evidence satisfied the clear and convincing requirement. The evidence also showed that, during the investigation, the Applicant was afforded the due process rights he was entitled to. UNDT held that the disciplinary action of summary dismissal in this matter was justified and proportionate. UNDT dismissed the application.

UNDT accepted the Applicant’s witnesses’ as evidence as relevant and admissible. The witnesses generally addressed theatmosphere in which the United Nations Interim Security Force for Abyei (UNISFA) staff in Abyei functioned, including the reaction of the principal chiefs of the Dinka tribe to policy changes which they did not like. This raised issues to be considered in assessing the complaints of Complainants 1 and 2. Complainants 1 and 2 did not sign or indicate the veracity of their statements. This failure to authenticate the statements created doubt as to the veracity of the statements...

The Applicant’s attempt to hug V01 did not on its own qualify as an unwelcome sexual advance or request for sexual favour or verbal or physical conduct or gesture of a sexual nature or any other behaviour of a sexual nature. The Applicant’s asking for V01’s room number on multiple occasions did not constitute sexual harassment. The facts did not establish sexual harassment as defined in ST/SGB/2008/5 and as interpreted in various jurisprudence. The Respondent’s investigations were skewed toward finding a case for sexual harassment regardless of the inadequacy of evidence to substantiate the...

UNDT held that the Applicant’s due process rights were respected because she was afforded the opportunity to provide comments related to the administrative measures applied at every step of the process and was represented by Counsel. She also did not challenge the adversarial examination of the allegations that was undertaken. UNDT found that the facts in support of the administrative measures imposed were established as per the applicable standard of proof. UNDT held that the administrative measures imposed on the Applicant were rational and proportionate to the established facts, as well as...