爆料网AT Held or 爆料网DT Pronouncements
爆料网AT granted the appeal by the Secretary-General and vacated the 爆料网DT Judgment.
Decision Contested or Judgment/Order Appealed
Before the 爆料网DT, Mr. Conteh contested the decision to separate him from service with compensation in lieu of notice and without termination indemnity, for misconduct. In Judgment No. 爆料网DT/2020/189, the 爆料网DT found that Mr. Conteh committed four acts of sexual harassment, but that Mr. Conteh had been sanctioned for a behaviour that was essentially episodic, was not threatening the victims or persistently annoying them, without specific consequences. Mr. Conteh immediately gave up the harassment when he understood that his “rude advances” were disturbing the complainants. Having considered that the alleged facts did not interfere with the work or created an intimidating, hostile or offensive environment; the conditions themselves of the harassment (perpetrated in non-working occasions and in private locations, in an atmosphere of conviviality), without any ill intent by Mr. Conteh; and the fact that the Mr. Conteh’s professional interactions with the complainants were rare, the 爆料网DT concluded that the established facts had no (or at least a very limited) impact on the work environment. The 爆料网DT also found that it had not been established that Mr. Conteh may have negatively impacted the image and reputation of 爆料网HCR. In the sanction letter, the Administration identified aggravating and mitigating circumstances. As aggravating factors, the Administration considered Mr. Conteh’s supervisory responsibility over the harassed women and the alleged negative impact of misconduct on 爆料网HCR’s image and reputation. As mitigating factors, the Administration considered that Mr. Conteh had expressed remorse and that he had a long and satisfactory service record as a 爆料网HCR staff member, including service in numerous hardship duty stations. In addition to the mitigating circumstances identified by the Administration, the 爆料网DT considered that the fact that Mr. Conteh expressed his intention to contact the complainants to apologize for his behaviour, should also be pondered as mitigating circumstances. Noting that the fact that Mr. Conteh was inebriated when two of the incidents occurred was not a mitigating factor per se, the 爆料网DT found it was relevant as it made unlikely that such kind of incidents might occur again, particularly during working hours. Noting that Mr. Conteh was a long-serving 爆料网HCR staff member with a positive performance record and no previous disciplinary problems, that “ordinarily, separation from service or dismissal is not an appropriate sanction for a first offence”2 and having considered previous practice of the High Commissioner and the Secretary-General in disciplinary cases, the 爆料网DT concluded that the disciplinary sanction imposed on Mr. Conteh was unfair and disproportionate to the established misconduct. The 爆料网DT therefore ordered that the imposed disciplinary measure be rescinded and replaced with the disciplinary measure of suspension without pay for a period of twelve months effective the date of Mr. Conteh’s separation from service; and that Mr. Conteh be subsequently placed on special leave with full pay and receive retroactive payment of his salary and related benefits. As an alternative to the rescission, the 爆料网DT set a sum equivalent to two years’ net base salary.
Legal Principle(s)
The Administration has a broad discretion in determining the disciplinary measure imposed on staff members as a consequence of wrongdoing. It is best suited to select an adequate sanction within the limits stated by the respective norms, sufficient to prevent repetitive wrongdoing, punish the wrongdoer, satisfy victims and restore the administrative balance. Thus, in determining the proportionality of a sanction, the 爆料网DT should observe a measure of deference, but more importantly, it must not be swayed by irrelevant factors or ignore relevant considerations.
Outcome
Outcome Extra Text
The appeal is upheld and Judgment No. 爆料网DT/2020/189 is vacated.