爆料网AT Held or 爆料网DT Pronouncements
爆料网AT held that some of the 爆料网DT’s findings were speculative, disregarded the evidence and misapplied the applicable legal framework. In particular, 爆料网AT held that the 爆料网DT erred in finding that the staff member’s conduct was not serious because it endured for a limited duration of time. He not only sexually harassed two women but sexually harassed those two women twice in quick succession. His cumulative behaviour exhibited a disposition, which in this instance caused the complainants significant discomfort and anxiety and impacted on their ongoing professional relationship with him.
爆料网AT found that the 爆料网DT likewise erred in its appraisal that the picture of a penis lacked shocking content and was not pornographic or prurient. On the contrary, 爆料网AT held that showing such a picture could cause offence or humiliation and whether it was shocking, prurient, or pornographic, although relevant, was not decisive.
爆料网AT further held that the staff member’s offensive conduct looked at cumulatively went beyond the limits of acceptable flirtation or playful banter and that the damage to trust and confidence accordingly rendered a continued employment relationship with him less tenable.
爆料网AT concluded that while the conduct in this case was less egregious than other instances of sexual harassment that had led to dismissal in the past, the decision to impose the sanction of separation fell within the reasonable range of disciplinary options and was one to which the 爆料网DT ought to have deferred.
Accordingly, 爆料网AT granted the appeal and reversed the 爆料网DT Judgment.
Decision Contested or Judgment/Order Appealed
A former 爆料网HCR staff member contested the decision to separate him from service on grounds of misconduct, with compensation in lieu of notice and without termination indemnity. The 爆料网DT held that it had been established by clear and convincing evidence that he had committed misconduct by sexually harassing the two complainants.
The 爆料网DT however found that the disciplinary measure imposed was disproportionate and opted to rescind the contested decision, replaced it with a written censure, and set a sum equivalent to two years’ net base salary as compensation in lieu of rescission.
The Secretary-General appealed.
Legal Principle(s)
The Secretary-General does not have an unfettered discretion on the question of sanction. The proportionality principle limits his discretion by requiring an administrative action not to be more excessive than is necessary for obtaining the desired result. The essential elements of proportionality are balance, necessity and suitability.
Due deference does not entail uncritical acquiescence: the 爆料网DT is obliged to interfere where a disciplinary sanction is lacking in proportionality. The standard for interference variously requires the sanction to be blatantly illegal, arbitrary, adopted beyond the limits stated by the respective norms, excessive, abusive, discriminatory or absurd in its severity or to be obviously absurd or flagrantly arbitrary.
There are degrees of severity to sexual harassment misconduct and a gradation of possible sanctions. The existence of a zero-tolerance policy to sexual harassment does not alter the fact that the ultimate penalty does not apply in every case. Zero tolerance merely refers to the attitude of the Organization to promptly and seriously react towards harassment.
The principle of equality of treatment of staff members (the parity principle) is always an important consideration. Similar cases should be treated in the same way. However, there are limits to the parity principle and perfect consistency will be difficult to achieve in a multiple agency Organisation operating in different contexts around the globe. Therefore, sanctions applied in previous cases are no more than a guide, and the Administration should enjoy a margin of appreciation to flexibly impose different sanctions provided they fall within a reasonable range of proportionate options.