2018-UNAT-819, Mbaigolmem
UNAT held that the undisputed facts, the evidence of a credible report, coherent hearsay evidence pointing to a pattern of behaviour, the consistency of the witness statements, the unsatisfactory statement of the staff member, and the inherent probabilities of the situation, taken cumulatively, constituted a clear and convincing concatenation of evidence establishing, with a high degree of probability, that the alleged misconduct in fact occurred. UNAT noted that the Organisation is entitled to and obliged to pursue a severe approach to sexual harassment and that the message, therefore, needs to be sent out clearly that staff members who sexually harass their colleagues should expect to lose their employment. Accordingly, UNAT concluded that the sanction imposed by the Administration, in this case, was proportionate and vacated the UNDT judgment.
The staff member contested the decision to separate him from service. The decision was based on the finding that he had engaged in sexual harassment, specifically, by making unwelcome sexual advances towards a colleague. UNDT held that the Administration had failed to discharge its onus to prove by clear and convincing evidence that the staff member had committed misconduct in the form of sexual harassment. By way of remedy, UNDT ordered rescission of the disciplinary measure and remanded the matter to the Administration to resume the disciplinary procedure and obtain additional evidence. As an alternative, UNDT ordered in-lieu compensation in the amount of six months’ emoluments.
The appeal in a disciplinary case requires consideration of whether the facts on which the sanction is based have been established, whether the established facts qualify as misconduct, and whether the sanction is proportionate to the offense. A de novo hearing into findings on misconduct might not always be necessary. Much will depend on the available evidence and the circumstances of the case.