2024-UNAT-1493, AAY
The Appeals Tribunal found that in its rigid treatment of the evidence in relation to AAY’s conduct, the UNDT failed to have appropriate regard to what had been admitted to by AAY when interviewed by OIOS. The fact that AAY chose not to testify at the UNDT hearing made it clear that he stood by his statement to the OIOS investigators. The UNDT was required to consider this undisputed evidence from him in its assessment whether the misconduct against him had been proved, more so in circumstances in which he did not elect to testify further in his own defence. The fact that the three witnesses he called to testify before the UNDT had not witnessed the incidents in question, did not undermine the weight of his own admissions and the body of evidence against him. In relation to CC, the Appeals Tribunal found that the hearsay evidence of AA and BB was corroborated in important respects by CC in her oral testimony and there was no reason for the UNDT to ignore this evidence or attach limited weight to her evidence.
As to whether AAY’s conduct was sexually motivated, the Appeals Tribunal noted that the UNDT repeated the statement made in the first UNAT judgment that “(w)hile the conduct was unwelcome, AA did not consider it to have been sexual in nature or offence. An unwelcome kiss, without sexual motivation, and which causes no offence, is not sexual harassment”. The Appeals Tribunal disagreed with that statement finding that the suggestion that the unwelcome kiss given by AAY did not cause offence did not accord with the express evidence to the contrary.
The Appeals Tribunal granted the appeal and reversed the second judgment of the UNDT.
AAY, a former United Nations staff member, challenged the disciplinary measure of separation from service with compensation in lieu of notice, and with termination indemnity. This sanction was imposed after the Administration found it to have been established by clear and convincing evidence that during a farewell party for a colleague at the offices of the United Nations Headquarters in New York, AAY sexually harassed three female colleagues, AA, BB and CC.
In a first Judgment, the UNDT dismissed AAY’s application contesting the sanction, and AAY appealed.
The UNAT found that, by refusing to allow key witnesses to testify and by over-relying on hearsay evidence, the UNDT had committed an error in procedure such as to affect the decision of the case, resulting in a manifestly unreasonable decision. The UNAT remanded the matter to be heard and determined by a different UNDT Judge.
On remand, the UNDT granted AAY’s application. The UNDT found that given the unavailability of key witnesses, the issues raised in the UNAT Judgment could not be addressed, and it had not been established by clear and convincing evidence that AAY’s conduct was of a sexual nature. The UNDT ordered rescission of the disciplinary sanction and, in the alternative to rescission, payment of two years’ net base salary.
The Secretary-General appealed.
Clear and convincing evidence of misconduct, including serious misconduct, imports two high evidential standards: clear requires that the evidence of misconduct must be unequivocal and manifest and 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.
Evidence, which is required to be clear and convincing, can be direct evidence of events, or may be of evidential inferences that can be properly drawn from other direct evidence.
The OIOS investigation is a fact-finding exercise on which the Secretary-General places reliance in taking decisions in disciplinary matters. While an oral hearing is not mandatory, it falls to the UNDT to determine on appeal whether the disciplinary measure imposed was correct in the sense that the facts have proved misconduct on clear and convincing evidence, and the sanction imposed was lawful and proportionate.
Where difficulty arises is in those matters in which conflicting versions are apparent during the course of the investigation but are not carefully and thoroughly tested during the process. In such instances it is usually not possible to determine, without oral evidence being heard and witnesses cross-examined, whether the allegations have been proved on clear and convincing evidence.
The investigation report prepared often contains a good deal of hearsay evidence, which may be considered inadmissible, or it may be given less weight than direct evidence given by a witness before the UNDT as fact-finding tribunal. Unless its admission is agreed by the party against whom it is adduced, the person on whose credibility the probative value of such evidence depends testifies or the UNDT admits such evidence having regard to the interests of justice having considered issues including the nature of the proceedings, the nature, probative value and purpose of the evidence, the reason why the evidence is not given by the person upon whose credibility its probative value depends and considerations of prejudice.
The reason hearsay is usually not admitted into evidence is that it is not possible to question or cross-examine the person who made the hearsay statement since that person is not in court. There are, however, unique considerations which pertain in the context of a disciplinary matter given that it is not a civil or criminal trial. The investigation report and the record of the evidence it contains may, in the interests of justice, despite its hearsay, be admitted into evidence. This will usually occur where the employee has been provided with a fair and adequate opportunity to understand the disciplinary complaint raised, been allowed to answer to the allegations and the investigation report illustrates that the investigator(s) has properly weighed and assessed the evidence in all its facets carefully. What weight will be given to the investigation report will depend on the circumstances of the case on an assessment of the totality of evidence. This includes whether there exist material factual disputes on key issues; whether corroborating evidence such as video and other evidence exists; whether significant due process violations have occurred during the investigation; and the severity of the sanction imposed. Thus, while hearsay evidence has its intrinsic limitations and drawbacks, it nevertheless is admissible in appropriate circumstances with the requirement that it be treated with caution.
Sexual harassment is more often than not concerned with the exercise of power and usually reflects the power relations that exist in society generally and specifically within a particular workplace. By its nature sexual harassment undermines the dignity, privacy and integrity of the victim, creates an offensive and often intimidating work environment and risks creating a barrier to substantive equality in the workplace. It falls outside of the bounds of acceptable conduct for an employee to intrude on the privacy, dignity and personal space of others in a workplace setting. We accept that the facts matter, and the circumstances in which events occur and their context are relevant. Whether an unwelcome kiss causes offence and whether it is given without sexual motivation is a matter to be determined on the facts and the circumstances. However, as a general proposition, any environment in which unwelcome kisses are condoned, risks developing into a hostile one.
The appeal is granted, and Judgment No. UNDT/2023/111 is hereby reversed.