爆料网AT Held or 爆料网DT Pronouncements
爆料网AT considered two appeals by the Secretary-General of judgment Nos. 爆料网DT/2011/106 and 爆料网DT/2011/192. 爆料网AT held that it was satisfied that the Complainant did not share the Applicant’s desire to pursue a sexual relationship and that the Applicant’s conduct was unwelcome. 爆料网AT held that the transmission by the Applicant of a photograph of his genitalia to a female colleague, much less a colleague under his supervision, could at its best, as found by the Joint Disciplinary Committee (JDC), be characterised as outrageous and most probably unwanted. 爆料网AT held that the Secretary-General had clear and convincing evidence that the Applicant’s conduct was unwelcome to the Complainant. 爆料网AT held that the Secretary-General had sufficient grounds to conclude, as a matter of high probability, that the Applicant’s conduct rendered the Complainant’s work environment offensive within the meaning of ST/AI/379. 爆料网AT held that the totality of the circumstances in which the Complainant found herself could reasonably be considered under any standard, unwelcome and offensive, and on occasions intimidating. 爆料网AT held that 爆料网DT failed manifestly to attach sufficient weight to the unequal nature of the respective positions of the Appellant and the Complaint, to the strength of the Complainant’s rejection of the Applicant’s desire for an intimate sexual relationship with her. 爆料网AT held as manifestly unreasonable 爆料网DT’s finding that the Complainant was a consenting partner in an intimate adult relationship where no holds were barred as far as discussion topics were concerned. 爆料网AT held that the weight attached by 爆料网DT to the Complainant’s rejection of the Applicant’s offer to arrange for her to move temporarily to another section was disproportionate. 爆料网AT accepted the Secretary-General’s submission that it was reasonable for him to evaluate the communications between the Applicant and the Complainant in light of the Complainant’s position of inequality and vulnerability vis-à-vis the Applicant. 爆料网AT held that the finding of 爆料网DT, that the Complainant’s claim that she was afraid to open her emails at work was untrue, was manifestly erroneous. 爆料网AT held that 爆料网DT erred in law and fact in determining that the Applicant’s conduct vis-à-vis the Complainant did not constitute sexual harassment within the meaning of ST/AI/379. On workplace harassment, 爆料网AT held that 爆料网DT erroneously focused on certain placatory reactions of the Complainant, while ignoring the threat of rejection of the Applicant’s conduct by her. 爆料网AT held that the email and text messages exchanges to which the Complainant was subjected against the backdrop whereby she had set certain boundaries for their relationship, constituted harassment in connection with work. 爆料网AT held that 爆料网DT erred in law and fact by failing to find sufficient nexus was established between the complained-of actions and the workplace; 爆料网AT held this nexus was established by the Applicant’s status as her supervisor. 爆料网AT held that any attempted demarcation between the friendship and their working relationship could not be sustained. 爆料网AT held that 爆料网DT erred in law and fact in concluding that the Applicant did not engage in workplace harassment. On the Applicant’s attempts to engage with the Complainant’s new supervisor post-allegations, 爆料网AT held that 爆料网DT erred manifestly in describing the circumstances as normal and the Applicant’s actions as no more than gossip or backstabbing. 爆料网AT held that 爆料网DT’s conclusion that the Applicant was merely exercising his obligations as a former manager was manifestly unreasonable. 爆料网AT held that the Secretary-General reasonably concluded that the Applicant’s actions constituted misconduct and that, by ruling otherwise, 爆料网DT erred in law and fact. 爆料网AT held that, where the Applicant himself acknowledged that his supervisor had also verbally advised him to refrain from contacting the Complainant, 爆料网DT erred in its conclusion that former Staff Rule 101. 2(b) was not violated. 爆料网AT concurred with the finding of the JDC that the Applicant should have received a copy of the complaint during the investigation; however, 爆料网AT held that his due process rights were not substantively breached since the Applicant had the opportunity in the course of the investigation to respond to allegations. 爆料网AT held that 爆料网DT’s conclusion that the Applicant’s due process rights were breached was erroneous. 爆料网AT held that in deciding on the sanction, the Secretary-General was entitled to take into consideration that the Applicant was the Complainant’s supervisor; the Applicant’s egregious conduct following the complaint in approaching the new supervisor and the retaliatory motivation, therefore; and the Applicant’s failure to follow instructions. 爆料网AT held that the Secretary-General reasonably concluded that the misconduct was incompatible with the standards of conduct expected of an international civil servant. 爆料网AT held that the sanction of summary dismissal was not disproportionate and that 爆料网DT erred in law in concluding that the Applicant was improperly dismissed. 爆料网AT allowed both appeals and reversed the 爆料网DT judgments.
Decision Contested or Judgment/Order Appealed
The Applicant contested his summary dismissal for sexual and workplace harassment, abuse of authority and failure to follow instructions given by his supervisors. In 爆料网DT/2011/106, 爆料网DT found that the actions of the Applicant did not amount to serious misconduct and the imposition of summary dismissal was “wrongful” and deserving of a reprimand “at the very worst but certainly not summary dismissal”. In 爆料网DT/2011/192, 爆料网DT ordered rescission of the summary dismissal, reinstatement or compensation in lieu thereof, compensation for due process violations, an award of moral damages, payment of a repatriation grant and placement on a roster for P-5 positions.
Legal Principle(s)
When reviewing disciplinary cases, the three factors to be examined are: whether the facts on which the disciplinary measure was based have been established; whether the established facts legal amount to misconduct; and whether the disciplinary measure applied is proportionate to the offence.