爆料网AT Held or 爆料网DT Pronouncements
The 爆料网AT first concluded that the 爆料网DT erred by failing to specify whether the alleged misconduct of sexual exploitation had been established to the required evidentiary standard of clear and convincing evidence. Second, the 爆料网AT held that the 爆料网DT had erred in concluding that the victim was a vulnerable person, that Mr. Stefan was aware of her vulnerability, and that he sexually exploited her vulnerability. The 爆料网AT held that the 爆料网DT erred when it made this finding without any independent or medical evidence, and that the 爆料网DT had relied on its own Internet research regarding various illnesses and the effect of certain drugs, without providing notice to the parties to respond to this research.
The 爆料网AT held that there was no clear and convincing evidence that the victim suffered from a condition, power imbalance, or chronic intoxication or drug use that made her vulnerable. The 爆料网AT observed that the relationship between Mr. Stefan and the victim was volatile and unhealthy, and that the victim was at times the aggressor and unstable. The 爆料网AT held that there was insufficient evidence to conclude that Mr. Stefan had any authority over the victim or was in a position to exploit their relationship.
On the second count of misconduct, the 爆料网AT found that the 爆料网DT correctly concluded that Mr. Stefan had engaged in misrepresentation to the Organization when he requested emergency family leave, when the evidence showed that he had pre-planned this additional leave time and there was no family emergency.
In sum, the 爆料网AT reversed the 爆料网DT Judgment and rescinded the contested decision, which included both counts of misconduct. Because the 爆料网AT found sufficient evidence regarding the misrepresentation concerning emergency family leave, the 爆料网AT held that the Administration was free to take another administrative decision on that count. Further, the 爆料网AT held that given its findings that both individuals were complicit in a volatile relationship, the 爆料网AT set in-lieu compensation of one year’s salary for Mr. Stefan, and also ordered the Administration to delete Mr. Stefan’s name from the ClearCheck database.
Decision Contested or Judgment/Order Appealed
In Judgment No. 爆料网DT/2022/083, the Dispute Tribunal dismissed Mr. Stefan’s application contesting the Administration’s decision to separate him from service as a disciplinary measure for sexual exploitation and misrepresentation with regard to family emergency leave.
Mr. Stefan appealed.
Legal Principle(s)
爆料网AT jurisprudence related to demonstrating sexual exploitation and abuse applies to conduct between United Nations staff members and is not limited to situations involving United Nations staff members and non-United Nations staff members.
Where the 爆料网DT obtains its own evidence with no notice to the parties and provides no opportunity to the parties to respond to it, this is a procedural fairness violation.
For the Administration to establish that a staff member engaged in sexual exploitation and abuse, it must show on clear and convincing evidence that the staff member (i) abused a position of vulnerability for sexual purposes; (ii) abused a position of differential power for sexual purposes; (iii) abused trust for sexual purposes; (iv) exchanged money, employment, goods or services for sex; or (v) engaged in some form of humiliating, degrading or exploitative behaviour.
Generally, a vulnerable person can be someone who is unable to protect themselves from harm or exploitation, and/or may be unable to give consent or sufficiently understand decisions or exercise their legal rights due to: (a) a developmental, physical, medical or psychological condition; (b) an unequal relationship with a person in a position of trust, authority or support; (c) chronic intoxication or drug use that results in incapacity or patterns of behavior that may pose a danger to themselves, or (d) circumstances such as gender, orientation, ethnicity, economic or social status that put them in a state of dependency or risk.
Outcome
Outcome Extra Text
The contested decision is rescinded, in-lieu compensation of one year's salary is granted, and the Administration is ordered to delete the staff member's name from the ClearCheck database.