����AV

UNAT considered two appeals by the Secretary-General of judgment Nos. UNDT/2011/106 and UNDT/2011/192. UNAT held that it was satisfied that the Complainant did not share the Applicant’s desire to pursue a sexual relationship and that the Applicant’s conduct was unwelcome. UNAT held that the transmission by the Applicant of a photograph of his genitalia to a female colleague, much less a colleague under his supervision, could at its best, as found by the Joint Disciplinary Committee (JDC), be characterised as outrageous and most probably unwanted. UNAT held that the Secretary-General had clear and convincing evidence that the Applicant’s conduct was unwelcome to the Complainant. UNAT held that the Secretary-General had sufficient grounds to conclude, as a matter of high probability, that the Applicant’s conduct rendered the Complainant’s work environment offensive within the meaning of ST/AI/379. UNAT held that the totality of the circumstances in which the Complainant found herself could reasonably be considered under any standard, unwelcome and offensive, and on occasions intimidating. UNAT held that UNDT failed manifestly to attach sufficient weight to the unequal nature of the respective positions of the Appellant and the Complaint, to the strength of the Complainant’s rejection of the Applicant’s desire for an intimate sexual relationship with her. UNAT held as manifestly unreasonable UNDT’s finding that the Complainant was a consenting partner in an intimate adult relationship where no holds were barred as far as discussion topics were concerned. UNAT held that the weight attached by UNDT to the Complainant’s rejection of the Applicant’s offer to arrange for her to move temporarily to another section was disproportionate. UNAT accepted the Secretary-General’s submission that it was reasonable for him to evaluate the communications between the Applicant and the Complainant in light of the Complainant’s position of inequality and vulnerability vis-à-vis the Applicant. UNAT held that the finding of UNDT, that the Complainant’s claim that she was afraid to open her emails at work was untrue, was manifestly erroneous. UNAT held that UNDT erred in law and fact in determining that the Applicant’s conduct vis-à-vis the Complainant did not constitute sexual harassment within the meaning of ST/AI/379. On workplace harassment, UNAT held that UNDT erroneously focused on certain placatory reactions of the Complainant, while ignoring the threat of rejection of the Applicant’s conduct by her. UNAT held that the email and text messages exchanges to which the Complainant was subjected against the backdrop whereby she had set certain boundaries for their relationship, constituted harassment in connection with work. UNAT held that UNDT erred in law and fact by failing to find sufficient nexus was established between the complained-of actions and the workplace; UNAT held this nexus was established by the Applicant’s status as her supervisor. UNAT held that any attempted demarcation between the friendship and their working relationship could not be sustained. UNAT held that UNDT erred in law and fact in concluding that the Applicant did not engage in workplace harassment. On the Applicant’s attempts to engage with the Complainant’s new supervisor post-allegations, UNAT held that UNDT erred manifestly in describing the circumstances as normal and the Applicant’s actions as no more than gossip or backstabbing. UNAT held that UNDT’s conclusion that the Applicant was merely exercising his obligations as a former manager was manifestly unreasonable. UNAT held that the Secretary-General reasonably concluded that the Applicant’s actions constituted misconduct and that, by ruling otherwise, UNDT erred in law and fact. UNAT held that, where the Applicant himself acknowledged that his supervisor had also verbally advised him to refrain from contacting the Complainant, UNDT erred in its conclusion that former Staff Rule 101. 2(b) was not violated. UNAT concurred with the finding of the JDC that the Applicant should have received a copy of the complaint during the investigation; however, UNAT held that his due process rights were not substantively breached since the Applicant had the opportunity in the course of the investigation to respond to allegations. UNAT held that UNDT’s conclusion that the Applicant’s due process rights were breached was erroneous. UNAT held that in deciding on the sanction, the Secretary-General was entitled to take into consideration that the Applicant was the Complainant’s supervisor; the Applicant’s egregious conduct following the complaint in approaching the new supervisor and the retaliatory motivation, therefore; and the Applicant’s failure to follow instructions. UNAT held that the Secretary-General reasonably concluded that the misconduct was incompatible with the standards of conduct expected of an international civil servant. UNAT held that the sanction of summary dismissal was not disproportionate and that UNDT erred in law in concluding that the Applicant was improperly dismissed. UNAT allowed both appeals and reversed the UNDT judgments.