2020-UNAT-1033, Negussie
UNAT held that UNDT was correct not to conclude that the Appellant had initiated the physical fight. UNAT held that UNDT was entitled to conclude the evidence of a witness was not clear and convincing, given inconsistencies. UNAT held that UNDT determined correctly that a prior altercation could not provide propensity evidence to corroborate witnesses’ accounts of the physical fight because the prior altercation was not investigated properly. UNAT held that UNDT committed an error in concluding that the Appellant had been unduly influenced into signing the settlement agreement, but that UNDT was correct to conclude that the settlement agreement did not amount to clear and convincing evidence of guilt. With one exception that was not decisive of the appeal, UNAT held that UNDT did not err in fact or law. UNAT dismissed the appeal and affirmed the UNDT judgment.
The Applicant contested the decision to separate him from service (on notice) for his involvement in a physical fight with a contractor on the Organisation’s premises. UNDT rescinded the decision to separate the Applicant from service and awarded in-lieu compensation.
The standard to which the allegations of serious misconduct must be established before UNDT is that of clear and convincing evidence. Clear and convincing evidence of misconduct, including serious misconduct, imports two high evidential standards: the first (“clear”) is that the evidence of misconduct must be unequivocal and manifest; the second (“convincing”) requires that this clear evidence must be persuasive to a high standard appropriate to the gravity of the allegation against the staff member and in light of the severity of the consequence of its acceptance.