2021-UNAT-1121, Secretary-General
UNAT dismissed the Secretary-General’s appeal and granted the staff member’s cross-appeal, in part. UNAT found that the UNDT properly took into account several facts that were relevant in determining whether there had been sexual exploitation and abuse of vulnerability or trust. The Tribunal reasoned the burden on the Administration was to show on clear and convincing evidence that the staff member’s conduct fell in one of the following five categories: (i) he abused a position of vulnerability for sexual purposes; (ii) he abused a position of differential power for sexual purposes; (iii) he abused trust for sexual purposes; (iv) he exchanged money, employment, goods or services for sex; or (v) he engaged in some form of humiliating, degrading or exploitative sexual behavior. The Tribunal concluded there is no basis to find an abuse of vulnerability simply because the staff member was an internationally recruited staff member of Italian descent and the Complainant was a locally contracted Malian national. The staff member also had no workplace authority over the Complainant. There was no professional or supervisory relationship between the parties. The Tribunal also noted that the Complainant was not a recipient of United Nations assistance, which would have created a situation of abuse of power for sexual purposes, as contemplated under Section 3.2(d) of ST/SGB/2003/13. Additionally, the Tribunal ruled out that earnings differences between the staff member and the Complainant created a situation of abuse of power for sexual purposes. Regarding the argument of the Secretary-General that the staff member told the Complainant that he would let her know if he heard about any job opportunities, UNAT held that the UNDT was correct in finding no quid pro quo in that exchange, which was just a casual conversation. Thus, the Tribunal concluded there was no clear and convincing evidence of sexual exploitation. Regarding the issue of compensation, where the UNDT or UNAT finds that separation was illegal, the loss of remuneration during ALWOP may legitimately be taken into account by the tribunal in making an award of compensation. UNAT found that UNDT erred in assuming that it needed to consider compensation in lieu once it determined that reinstatement was impractical. The correct application of the relevant provision requires that in cases of termination where the UNDT orders rescission (reinstatement) or specific performance (re-employment), it must set an amount of compensation in lieu that the Secretary-General may elect to pay as an alternative to the rescission or specific performance. The Tribunal also explained that UNDT erred in treating pecuniary harm (loss of salary and medical expenses during ALWOP) as moral damages. The Tribunal found an adequate award of compensation in lieu will compensate the staff member for the loss of his FTA and his other losses. As such, the Tribunal granted the maxim compensation equivalent to two years’ net base salary. Therefore, UNAT dismissed the Secretary-General’s appeal and upheld the cross-appeal to the limited extent that the order of the UNDT is modified by an order rescinding the contested decision and setting an amount of compensation (in lieu) equivalent to two years’ net base salary that the Secretary-General may elect to pay as an alternative to recission of the contested administrative decision.
Following a Police complaint by a woman in Mali (Complainant) that a staff member had raped her, OIOS initiated its own investigation and looked into the allegations. The police did not eventually pursue the rape charge against the staff member, but OIOS proceeded with its investigation and found that the staff member had failed to observe the standards of conduct expected of an international civil servant and had breached Staff Rule 1.2(e), which prohibits sexual exploitation and abuse. Notably, however, OIOS did not uphold the Complainant’s allegations of rape. During the course of the investigation, the Administration placed the staff member on administrative leave without pay (ALWOP). At the conclusion of the investigation, the staff member was invited to respond to the allegations of sexual exploitation. Following the response from the staff member, the Administration decided to impose the sanction of separation from service with compensation in lieu of notice and without any termination indemnity. The staff member challenged the dismissal decision with the UNDT. The UNDT held that sexual exploitation had not been proven and that separation as a sanction was not justified. The tribunal explained there was no clear and convincing evidence that there was a power differential between the staff member and the Complainant or that there was an inappropriate exchange of money for sex – these are elements required to substantiate a charge of sexual exploitation. The UNDT thus ordered rescission of the contested decision and set in lieu compensation equivalent to the remuneration payable for the time remaining on the staff member’s FTA. Since the staff member did not challenge the ALWOP decision, his claim for loss of salary during the administrative leave period was not receivable. However, the UNDT awarded the staff member moral damages for loss of salary and medical difficulties he faced during the administrative leave period. The Secretary-General appealed the UNDT Judgment claiming that the tribunal had made several errors of law and fact. The Secretary-General also requested in the event that UNAT decided to uphold the recission of the contested decision and the in lieu compensation, it should, however, vacate the award in moral damages as there was no basis for providing such. The staff member cross-appealed, seeking an upward revision of the compensation awarded.
To prove non-compliance with the standards stipulated in Secretary-General’s Bulletin ST/SGB/2003/13 (Special measures for protection from sexual exploitation and sexual abuse), the Administration must show (on clear and convincing evidence in cases of dismissal) that the staff member’s conduct fell in one of the following five categories: (i) he abused a position of vulnerability for sexual purposes; (ii) he abused a position of differential power for sexual purposes; (iii) he abused trust for sexual purposes; (iv) he exchanged money, employment, goods or services for sex; or (v) he engaged in some form of humiliating, degrading or exploitative sexual behavior. A differential in contract status between an internationally recruited staff member and a locally contracted national does not create an inherent situation of vulnerability of the locally contracted national vis-à-vis the international staff member. Earnings differences between two parties do not create an inherent situation of abuse of power for sexual purposes on the part of the person earning more against the person earning less. A staff member promising to let someone know in case he hears about a job opportunity in exchange for sex does not appear to be a plausible case of sexual exploitation. Where the Tribunal finds that separation was illegal, the loss of remuneration during administrative leave without pay may legitimately be taken into account by the Tribunal in making an award of compensation. In cases of termination, if the UNDT orders rescission or specific performance, it must also set an amount of compensation in lieu that the Secretary-General may elect to pay as an alternative to the rescission or specific performance. Loss of salary and medical expenses incurred during administrative leave without pay are pecuniary in nature and cannot be treated as moral harm.
The Secretary-General’s appeal is dismissed and the cross-appeal is granted to the limited extent that the order of the UNDT is modified by an order rescinding the contested decision and setting an amount of compensation (in lieu) equivalent to two years’ net base salary that the Secretary-General may elect to pay as an alternative to recission of the contested administrative decision.