ST/SGB/2003/13

This case revealed overt sexual harassment where both words and physical touching were used and attempted to extract sexual favour, but even though no such favour was extracted, the harassment caused harm to the victim who was put in fear of loss of her position in the Organization and caused unnecessary tension in the staff relations between the persons involved.

In this case both words and acts were used together during a short period of persistence. When this happens in a work setting it can cause serious emotional stress and hurt. Based on the evidence this is what occurred in this case.

Under “Preliminary Issues”, the Tribunal decided to strike from the record the Applicant’s motion for anonymity and to exceptionally accept the Applicant’s closing submission which exceeded the page limit.

Whether the facts on which the disciplinary measure was based have been established by evidence and up to the required standard of proof.

The Tribunal noted that the sanction was based on four allegations, which it considered separately. After having considered the evidence on record for each allegation, the Tribunal found that it had been established by clear and convincing evidence that...

The UNAT held that the UNDT committed an error of procedure such that it affected the outcome of the case in not holding an oral hearing and relying significantly on the OAIS investigation report to corroborate the truth of the events alleged by the Complainant, when there was no direct witnesses to the alleged misconduct and all the witnesses relied upon by the OAIS investigators obtained their evidence and information from the Complainant.  As such, the UNAT concluded that their evidence was hearsay evidence and that the prejudice to the Appellant in admitting and relying upon this evidence...

The UNAT first concluded that the UNDT erred by failing to specify whether the alleged misconduct of sexual exploitation had been established to the required evidentiary standard of clear and convincing evidence.  Second, the UNAT held that the UNDT had erred in concluding that the victim was a vulnerable person, that Mr. Stefan was aware of her vulnerability, and that he sexually exploited her vulnerability.  The UNAT held that the UNDT erred when it made this finding without any independent or medical evidence, and that the UNDT had relied on its own Internet research regarding various...

The UNAT concluded that the UNDT erred in considering that the different periods of ALWOP on which Mr. Okwakol was placed, were the subject of a single and continuing administrative decision.  The UNAT held that each of the three identifiable periods was the subject of consideration or reconsideration of the circumstances at that time. On each occasion, the Organisation took a decision about the state of the misconduct investigation and its ongoing nature and advised Mr. Okwakol accordingly. It was not decisive or even material that the renewals of the ALWOP were referred to as extensions of...

The UNAT first dismissed Mr. Okwakol’s appeal of the UNDT Order, finding that  Mr. Okwakol’s complaints about what the UNDT decided it would admit into evidence and what submissions it would consider in deciding his substantive case, were remediable as part of his appeal on the merits if they were wrongly decided.

The UNAT agreed that the UNDT was correct to admit the audio-recording made by the SEA victim because this evidentiary material was relied upon by the Administration in taking the decision to impose the disciplinary measure of separation from service.  The audio-recording needed to...

The UNAT first dismissed as not receivable Mr. Loto’s appeal of the UNDT’s Order denying his motion to strike an audio-recording and certain pleadings submitted by the Secretary-General.  The UNAT held that these matters could be addressed in Mr. Loto’s appeal of the judgment on the merits of his application.

The UNAT was satisfied that the UNDT correctly admitted the audio-recording of the meeting between the alleged victim, Mr. Loto and others, as the recording assisted in resolving any evidential conflict about what transpired at this meeting, in which payment to the victim was discussed...

The UNDT was faced with two irreconcilable versions of the case, and thus it was necessary for the UNDT to satisfy itself on the credibility and reliability of the various factual witnesses and probabilities. This task was made especially difficult for the UNDT since the relevant witnesses did not present their evidence in person. In this case, the evidence presented by the Secretary-General was of an exceedingly limited nature and value. The Secretary-General relied exclusively on the contents of the written report of the OIOS investigation, which was entirely hearsay and, in some instances...

AAA appealed and the Secretary-General cross-appealed. The UNAT disagreed with the UNDT’s position that AAA could not be required to report a rape allegation “which he heard from another person who attended court” and that Section 4.1 of  ST/AI/2017/1 “does not apply to an individual who merely hears second-hand about a case of misconduct since much of what such a person has to report would be hearsay and possibly misleading and devoid of the kind of detail the rule is seeking to elicit from the staff member”. This approach erroneously imposes a requirement that the staff member must have a...

It was crucial for the Tribunal to examine the relationship between the Applicant and the alleged victim of his behaviour. There was clear evidence of constant financial support to the complainant/victim. The Applicant built a relationship of trust with the complainant/victimthe  where she was able to rely on him for support and was comfortable to meet with him outside of the UNFPA Malawi Country Office. The victim was placed in a very vulnerable position. The abuse by the Applicant was not an isolated episode, as the Applicant is accused also for sexual assault and harassment in different...