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UNAT dismissed the Secretary-General’s appeal and granted the staff member’s cross-appeal, in part. UNAT found that the UNDT properly took into account several facts that were relevant in determining whether there had been sexual exploitation and abuse of vulnerability or trust. The Tribunal reasoned the burden on the Administration was to show on clear and convincing evidence that the staff member’s conduct fell in one of the following five categories: (i) he abused a position of vulnerability for sexual purposes; (ii) he abused a position of differential power for sexual purposes; (iii) he...

i. Whether the Applicant’s suspension of 26 May 2006 was lawful: The Tribunal found that the Chief of Security/UNON unilaterally and verbally suspended the Applicant in breach of the Staff Rules at that time. It was noted that such a decision could only be made by the Assistant Secretary-General, Office of Human Resources Management (ASG/OHRM) who was the properly delegated individual. Further, the Applicant was not given reasons for his suspension and the suspension was not made in conjunction with a charge of misconduct. ii. Whether the Applicant was lawfully placed on SLWFP: The Tribunal...

The impugned decision is grossly, patently, incurably and incontrovertibly unlawful. An order suspending the administrative decision pending management evaluation is bound to work injustice in the circumstances.The Application that gave rise to the proceedings and deliberations in this case clearly was brought under a wrong heading when it was filed as a suspension of action application. The Tribunal, in the present circumstances, must in the interest of justice move this matter to the cause list of applications on the merit and accordingly dispose of it fully and on the merits.Article 36 of...

The Tribunal found that the Assistant Secretary-General had conducted a fair review and had not merely rubber-stamped the Executive Secretary’s recommendation and that some of the allegations appeared well-founded so that in principle consideration of administrative leave was not improper. However, the feasibility of redeployment was not properly considered by the Executive Secretary, who had informed the ASG that there were no suitable posts available and that it would in any event be costly to redeploy the Applicant. In fact it appeared that there was a post available, to which the Applicant...

The Tribunal concluded that the sanction was taken in accordance with the applicable regulations and rules that govern disciplinary matters and that it was in line with sanctions applied in other matters of similar nature. The Applicant’s due process rights were respected throughout the preliminary investigation and the ensuing disciplinary process. The contested decision was both factually and legally reasoned and did not reflect any bias, improper motivates, flawed procedural irregularity or errors of law. The Applicant’s disciplinary liability was correctly determined and the disciplinary...

Disciplinary investigations: are not criminal in nature and the evidential standards that apply to criminal investigations do not apply. The decision maker cannot exclude the evidence obtained by an unlawful interview from consideration but the weight of the evidence obtained in unfair or unlawful circumstances should be treated with the utmost caution.

The Tribunal held that the Applicant’s challenge in relation to the decision to cancel his administrative leave (“AL”) was without merit. The Tribunal reasoned that the evidence showed that the Applicant was placed on AL after UNOPS had received allegations of intimidation, harassment and other misconduct against him in the Sudan office. The Applicant did not contest the decision to place him on AL but only the decision informing him that his AL had not been extended and that no disciplinary action was being taken against him regarding the allegations. Accordingly, the decision not to extend...

Administrative leave; The Tribunal noted that the decision letter of 27 July 2017 conveyed that the decision was based on the reputational risk to the Organization in light of the allegations against the Applicant, relating to sexual abuse and exploitation of an underage girl, and on the basis of the available evidence and findings of the investigation report.; The Tribunal was satisfied that the sensitive nature of the allegations, which were sustained by some evidence, justified the Administration’s decision, in its exercise of discretion, to put the Applicant on administrative leave, in...

Neither the intial placement of the Applicant on ALWOP nor any of its extensions could be separated; each extension of the same ALWOP decision triggered a challenge; of all the previous related decisions. The challenge of any extension of the ALWOP was a challenge of the entire continuum of ALWOP, previous or supsequent. The placement of the Applicant on ALWOP fell below the required threshold for the Respondent/decision-maker to show that exceptional circumstances existed to support it. It was unjust and unlawful to place the Applicant on ALWOP for twelve consecutive months. UNDT ordered the...

The required facts for a finding of sexual exploitation were not proven clearly, or at all, such that a decision to impose the sanction of separation could have been justified. There was also a failure to consider relevant evidence as to a prior courtship relationship between the parties that if considered would have shed further doubt on whether the Complainant was exploited. There was no factual basis for the investigators and the Respondent to have found that there was a relationship of trust that could have been abused. The Complainant was not a beneficiary of assistance from the United...