����AV

UNDT’s findings that the former supervisor may have retaliated against the staff member for her work-related conduct and for seeking recourse in the internal justice system and that he used his position of authority to improperly influence her work conditions are supported by the available evidence. UNAT found that the former supervisor had evicted the staff member from her functions preventing her from carrying out her duties and intended to humiliate and embarrass her by unjustifiably copying uninterested persons in personal and confidential communications concerning her performance. The former supervisor adopted an aggressive and abrasive tone, made demeaning remarks in his communications to the staff member, and thereby created a hostile and offensive work environment. Such actions constituted possible misconduct or harassment as defined in ST/SGB/2008/5. For these reasons, the contested decision to take no further action into the staff member’s complaint against her former supervisor was irrational and not one that a reasonable decision-maker could reach. UNAT concluded that the rescission of the contested decision by UNDT was therefore correct and within its remedial powers under Article 10(5) of the UNDT Statute. As for the contention that the investigation panel was improperly constituted, UNAT noted that Section 5. 14 of ST/SGB/2008/5 does not introduce a mandatory condition that the panel be constituted by individuals from the department, office, or mission and only exceptionally from the OHRM roster, but merely professes a preference. UNAT held that non-compliance with that preference will not lead to the nullity of any appointment from the roster provided that the selection is not unreasonable. UNAT further held that UNDT’s order directing the ASG/OHRM to “institute” disciplinary proceedings impinges upon the discretion of the ASG/OHRM. UNAT modified the order of UNDT to direct the ASG/OHRM to act in terms of Section 5. 18(c) of ST/SGB/2008/5. UNAT further found that the medical evidence convincingly established that the staff member suffered psychological harm from the alleged harassment and the manner of the investigation of her complaints. Nonetheless, UNAT noted that the staff member had contributed to several months of delay and that she did not lose an opportunity to have her complaint properly investigated. Therefore, UNAT reduced UNDT’s award of moral damages to USD 10,000.