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This case revealed overt sexual harassment where both words and physical touching were used and attempted to extract sexual favour, but even though no such favour was extracted, the harassment caused harm to the victim who was put in fear of loss of her position in the Organization and caused unnecessary tension in the staff relations between the persons involved.

In this case both words and acts were used together during a short period of persistence. When this happens in a work setting it can cause serious emotional stress and hurt. Based on the evidence this is what occurred in this case.

There is no evidence that the facts that were taken into consideration to substantiate the investigator¡¯s finding of ¡°prior conduct¡± were properly investigated up to the threshold of clear and convincing evidence. Therefore, the credibility assessment made by the Administration via the use of prior conduct evidence cannot stand, and the alleged prior conduct evidence was not considered by this Tribunal in its judicial review of the facts.
With respect to the allegation that the Applicant sexually harassed V01, based on the 8 and 21 November 2017 emails, which confirm the Applicant¡¯s persistency...

The ±¬ÁÏÍøAT held that the ±¬ÁÏÍøDT committed an error of procedure such that it affected the outcome of the case in not holding an oral hearing and relying significantly on the OAIS investigation report to corroborate the truth of the events alleged by the Complainant, when there was no direct witnesses to the alleged misconduct and all the witnesses relied upon by the OAIS investigators obtained their evidence and information from the Complainant. As such, the ±¬ÁÏÍøAT concluded that their evidence was hearsay evidence and that the prejudice to the Appellant in admitting and relying upon this evidence...

The Respondent failed to secure the attendance of two victims at the remanded hearing. Four witnesses testified before the Tribunal, including only one victim. None of their testimonies corroborates the charges as laid. On the contrary, they are exculpatory in so far as all three witnesses testify that they did not see the Applicant doing anything improper at the event in question. Accordingly, there is no effective response to the concerns that formed the basis for the Appeals Tribunals¡¯ decision to remand the case for a fresh hearing.

Neither the allegations memorandum nor the sanction...

The ±¬ÁÏÍøDT was faced with two irreconcilable versions of the case, and thus it was necessary for the ±¬ÁÏÍøDT to satisfy itself on the credibility and reliability of the various factual witnesses and probabilities. This task was made especially difficult for the ±¬ÁÏÍøDT since the relevant witnesses did not present their evidence in person. In this case, the evidence presented by the Secretary-General was of an exceedingly limited nature and value. The Secretary-General relied exclusively on the contents of the written report of the OIOS investigation, which was entirely hearsay and, in some instances...

The Tribunal assessed the evidence gathered by the investigators in relation to each incident and concluded that, in most instances, there was no direct or corroboratory evidence of harassment or sexual harassment, and the investigators based their conclusions solely on V01¡¯s narrative. Since almost all the evidence in support of the finding of misconduct comes from V01¡¯s testimony, in opposition to that of the Applicant, establishing V01¡¯s credibility is an essential exercise for a proper adjudication of the case.

However, the investigation failed to adequately establish the reliability of...

The sensitive nature of the sexual harassment allegations and the fact that the victim may be easily identified by the factual circumstances surrounding the case constitute exceptional circumstances that warrant granting anonymity.

The Complainant¡¯s account of facts in relation to the relevant incidents is credible and reliable. The Applicant failed to adduce any evidence that could have undermined the credibility of the Complainant¡¯s evidence. There is no evidence of ulterior motives on the part of the Complainant.

The Administration succeeded in discharging its burden of proof to show that...

The situation of the present case is that only two persons, namely the Applicant and AA, were present when the alleged sexual abuse occurred, and they have presented contradictory witness testimonies. As the case involves termination, the question for the Tribunal to determine is therefore whether the Respondent has established with clear and convincing evidence that the factual background upon which the disciplinary sanction is well-founded. This means that AA¡¯s testimony is highly probable whereas, in consequence, the Applicant¡¯s testimony is not reliable.

With reference to the Tribunal¡¯s...

Have the facts on which the disciplinary measure was based been established according to the applicable standard? It was alleged that during the Cox¡¯s Bazar all-staff retreat in February 2020, the Applicant: a. Grabbed V01 from behind her and held her tight with his hands around her waist to the front of her body. He rested his head on her back while he pulled her back so that the front of his body rested against the back of her body. V01 did not consent to him touching her; and b. Hugged V02 from the front side of her body with his body pressed against her body. He hugged her with both his...

Preliminary matter: the use of prior conduct evidence The Applicant argues that his due process rights were violated during the investigation, particularly by the irregular use of prior conduct evidence which allegedly created a bias against him and masked the lack of clear and convincing evidence in relation to the sexual harassment complaint. The Tribunal considers it is proper and not unlawful for the Organization to consider the staff member¡¯s background and behaviour towards others in the context of a disciplinary case, as long as it is relevant, uncontroversial and probative. ±¬ÁÏÍøAT...