2013-UNAT-291, Perelli
UNAT considered two appeals by Ms Perelli, against judgment Nos. UNDT/2012/034 and UNDT/2012/100. On the matter of due process, given Ms Perelli had the opportunity to rebut allegations and contents of the relevant report, UNAT held that these procedural steps were part of her due process entitlements and, to the extent that UNDT found the Administration to have respected these procedural steps, UNAT upheld the finding of UNDT. UNAT held that the Investigation Panel report satisfied neither the remit given to it nor the statutory requirements of ST/AI/371. UNAT held that Ms Perelli was entitled to a judicial review by UNDT of the Secretary-General’s decision to reject the findings of the Joint Disciplinary Committee (JDC) on due process, given the very serious admissions made by the Investigation Panel members to the JDC. UNAT held that UNDT should have exercised judicial review of the Secretary-General’s response before satisfying itself that the required standard of proof for dismissal for misconduct was met. UNAT held that, in view of the fundamentally flawed nature of the Investigation Panel investigation, it was satisfied that the Secretary-General’s rejection of the JDC’s findings on due process tainted his decision. UNAT held that UNDT failed manifestly to attach sufficient weight to the findings of the JDC on the limitations which attached to the Appellant’s constructive knowledge of her conduct being unwelcome. UNAT held that, in failing to take the factors outlined in the JDC’s report into account, UNDT legitimised the Secretary-General’s unlawful rejection of the JDC findings and thereby allowed the dismissal of the Appellant to be affirmed on foot of a charge of sexual harassment, which could not be sustained given the absence of the third requisite statutory element, namely, that the conduct complained of was unwelcome. UNAT held that there was no clear and convincing evidence as a matter of high probability that the Appellant had engaged in sexual harassment within the definition of ST/AI/379. UNAT allowed the appeal, reversed the UNDT judgment (that the dismissal was lawful) and ordered reinstatement or compensation in lieu of two years’ net base salary.
The Applicant contested her summary dismissal for sexual harassment, professional harassment, and abuse of authority. In judgment UNDT/2012/034, UNDT found against the Applicant. In judgment UNDT/2012/100, UNDT dismissed the application as moot, not receivable and manifestly inadmissible.
When reviewing disciplinary cases, the three factors to be examined are: whether the facts on which the disciplinary measure was based have been established; whether the established facts legally amount to misconduct; and whether the disciplinary measure was proportionate to the offence.