UNDT/2020/090, Lucchini

UNAT Held or UNDT Pronouncements

The required facts for a finding of sexual exploitation were not proven clearly, or at all, such that a decision to impose the sanction of separation could have been justified. There was also a failure to consider relevant evidence as to a prior courtship relationship between the parties that if considered would have shed further doubt on whether the Complainant was exploited. There was no factual basis for the investigators and the Respondent to have found that there was a relationship of trust that could have been abused. The Complainant was not a beneficiary of assistance from the United Nations. She was an independent contractor who offered services in exchange for contractual payments.

Decision Contested or Judgment Appealed

The Applicant challenged the decision to separate him from service with compensation in lieu of notice without termination indemnity in accordance with staff rule 10.2(a)(viii).

Legal Principle(s)

In a disciplinary case what is required is consideration of whether the facts on which the sanction is based have been established, whether the established facts qualify as misconduct and whether the sanction is proportionate to the offence. A de novo hearing into the findings on misconduct is not always necessary. It depends on the available evidence and the circumstances of the case. The fact of abuse of trust can only be established in the context of the relationship between persons. There are certain types of relationships, including supervisorsupervisee, doctor-patient, lawyer-client and teacher-student where the inference can be drawn that there is trust and confidence that can be abused. The SGB underscores that the relationship of United Nations staff with beneficiaries of assistance is based on inherently differential power dynamics hence such a relationship can be included in the category of relationships of trust that can be abused, in a manner that amounts to sexual exploitation.

Outcome

Judgment entered for Applicant in full or in part

Outcome Extra Text

The contested decision was rescinded and the Applicant was awarded 10 months’ net base salary in lieu of rescission and 10 months’ net base salary as moral damages.

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Full Judgment

Applicants/ Appellants

Lucchini

Entity

MINUSMA

Case Number(s)

UNDT/NBI/2018/126

Tribunal

UNDT

Registry Location :

Nairobi