2024-UNAT-1477, Sandi Arnold
The UNAT held that the UNDT did not err in finding that the staff member’s action of gifting a sex toy to a subordinate was inappropriate, as it transgressed the boundary between the professional and personal life of the subordinate, even if the event took place in private. Whether solicited or not, it had the potential to negatively impact the image and interests of the Organization. Consequently, the UNAT concluded that by doing so, the staff member failed to uphold the required standard expected of her role as a manager.
The UNAT also found that the UNDT committed no error in finding that the staff member violated the minimum level of civility expected in the workplace when she bullied another colleague by swearing at her over the printing of a document, even if she apologized for it on the same day.
Furthermore, the UNAT found that the UNDT correctly concluded that the staff member also committed misconduct by calling her colleagues by nicknames related to their physical characteristics or national origins. The UNAT observed that the fact that no colleague expressed concern about the use of such nicknames, or that they were used in casual e-mail communications and reciprocated by the staff, did not negate the fact that her actions were patently inappropriate.
The UNAT held that the sanction imposed on the staff member was not unlawful, arbitrary, excessive, abusive, discriminatory or absurd in its severity. On the contrary, it found that the measure imposed was the most lenient option available and was imposed within accepted limits, with due regard to the applicable norms, the purpose of discipline, and its potential to be constructive and corrective.
The UNAT dismissed the appeal and affirmed Judgment No. UNDT/2023/124.
A staff member with the United Nations Mission in Kosovo (UNMIK) contested the decision of the Administration to impose on her the disciplinary measure of written censure, together with the managerial action of managerial coaching for one year for misconduct.
In its Judgment No. UNDT/2023/124, the UNDT, limiting the scope of judicial review to the disciplinary measure of written censure, dismissed the staff member’s application. It concluded that the Administration had established the facts underlying the disciplinary measure of written censure to the required standard of a preponderance of evidence and that the sanction imposed was lawful.
Staff member appealed.
For an appeal to be considered by the Appeals Tribunal, it must identify the defects in the impugned Judgment and the grounds on which it is contended that any error has been committed, which warrants intervention by the Appeals Tribunal.
In disciplinary matters, when termination is not a possible outcome, the facts underlying the alleged misconduct must be shown to be more likely than not, based on the facts and circumstances established (i.e., preponderance of evidence), with the established facts constituting misconduct under the Staff Regulations and Rules.
The high standards of conduct for international civil servants justify that even if there is only a possibility of creating a hostile work environment, the contested actions may still constitute misconduct.
All staff members are entitled to be treated with dignity and respect and to work in an environment free from harassment and abuse. Staff members are also required to exhibit respect for all cultures.
A manager is expected to act as a role model, with a special obligation to uphold the highest standards of conduct in their position of leadership and as an international civil servant. This includes refraining from engaging in any activity incompatible with the proper discharge of their duties or that could compromise the image and interests of the Organization, even with regard to events that take place in private.