2023-UNAT-1382, Flamur Kazazi
The UNAT held that the UNDT did not commit an error of procedure in its case management that affected the outcome of the case. The Appellant had a meaningful opportunity to mount a defense and to question the veracity of the statements against him. The additional witnesses that he wished to call would have been of little assistance to his case.
The UNAT found that the UNDT correctly concluded that the alleged conduct was established by clear and convincing evidence and that the Appellant’s actions, i.e., making inappropriate comments of a sexual nature in social settings, amounted to sexual harassment. The UNAT found that the UNDT made appropriate findings on credibility by considering the factors related to the credibility and reliability of the witnesses. In its discretion, the UNDT ultimately correctly held that it believed the evidence of V01 and V02 on the basis of their lack of motive in lying and the probabilities of the statements in question.
The UNAT concluded that the investigation and the disciplinary process were conducted in accordance with the legal framework and investigation guidelines and that the irregularities relied on by the Appellant were not substantial such that they impacted his due process rights.
With regard to the proportionality of the sanction, the UNAT held that the sanction imposed on the Appellant for serious misconduct of multiple incidents and complainants accorded with the policies and practices of the Administration and that the UNDT appropriately considered mitigating factors in making this finding.
The UNAT dismissed the appeal and affirmed Judgment No. UNDT/2022/087.
The Appellant, a former staff member of the United Nations-African Union Mission in Darfur (UNAMID), contested the decision of the Administration to impose on him the disciplinary measure of separation from service, with compensation in lieu of notice and without termination indemnity and to include his name in the ClearCheck database. In its Judgment No. UNDT/2022/087, the UNDT concluded that there was clear and convincing evidence that the Appellant has committed serious misconduct by sexually harassing V01 and V02 and dismissed his application.
The UNDT has broad discretion to determine the admissibility of any evidence and the weight to be attached to it. The UNAT will only intervene with the broad discretion conferred on the first instance tribunal in the management of its cases in clear cases of denial of due process of law affecting a party’s right to produce evidence. Moreover, it is not necessary for any court, whether a trial or appellate court, to address each and every claim made by a litigant, especially when a claim has no merit.
In order to overturn a finding of fact by the UNDT, the UNAT must be satisfied that the finding is not supported by the evidence or that it is unreasonable. Some degree of deference should be given to the factual findings by the UNDT, particularly where oral evidence is heard. The UNDT has the advantage of assessing the demeanour of witnesses while they are giving evidence and this is critical for assessing the credibility of the witnesses and the persuasiveness of their evidence. Only substantial procedural irregularities in the disciplinary investigation will render a disciplinary measure unlawful.
Sexual harassment, while typically involving a pattern of conduct, may take the form of a single incident. Moreover, the perspective of the person who is the target of the conduct shall be considered and the perpetrator of the offending conduct does not have to intend or be aware of the offending nature of their behaviour.
With regard to the proportionality of the sanction, the Administration has a broad discretion in determining the appropriate disciplinary measure for the established misconduct and the UNAT will only overturn a measure if it finds that it is excessive or unreasonable.