����AV

Pursuant to ITC/EDB/2015/07, when a fact-finding panel is appointed, it shall investigate the complaint and “prepare a detailed report, giving a full account of the facts that they have ascertained in the process and attaching documentary evidence” (sec. 5.18). The report shall be submitted to the Director, DSP, who will review it together with the related documentation and make a recommendation on the appropriate course of action to the Executive Director, ITC (see secs. 5.15, 5.18, 5.19 and 5.20). Seeking assistance from OIOS was a reasonable solution in the framework of ITC/EDB/2015/07. This administrative issuance specifically grants authority to OIOS to investigate complaints when the report is made directly to it (see sec. 5.12). The Director, DPS, when selecting a fact-finding panel, may also elect to appoint investigative officials from OIOS or designated by it (see sec. 5.15 of ITC/EDB/2015/07). Investigations into possible violations of administrative issuances such as ITC/EDB/2015/07 and misconduct fall squarely within the mandate and expertise of OIOS, as defined in secs. 16 and 18 of ST/SGB/273 (Establishment of the Office of Internal Oversight Services). Pursuant to ITC/EDB/2015/07, it was incumbent upon the panel to ascertain the facts and then upon the Executive Director, ITC, to make a decision on the course of action to be taken, based on the recommendation of the Director, DPS. Under ITC/EDB/2015/07, the facts shall be established by those who have investigated them, such that they could, inter alia, assess the credibility of witnesses. Those who heard the witnesses are the best placed to assess their credibility. The opinion of OIOS on facts investigated by the fact-finding panel had no probative value. The mandate would thus have been more appropriately defined as one to review the investigation of the fact-finding panel and to complete it as necessary to ascertain the facts alleged in the complaint. The Tribunal finds that the intervention of OIOS to assist in the investigation into the complaint was not unlawful and the evidence it collected in the course of its investigation into the allegations of rape could be used to inform the factual findings on the allegations of sexual harassment and abuse of authority. However, both the fact-finding panel and OIOS reached a conclusion that the Applicant sexually harassed the Complainant and abused his authority without ascertaining the facts as required by sec. 5.18 of ITC/EDB/2015/07. Furthermore, any opinion expressed by OIOS on the evidence collected by the fact-finding panel, which is not based on an assessment of additional evidence it itself collected, fell beyond the scope of its authority under ITC/EDB/2015/07 and had no legal value. Therefore, the Tribunal deemed it necessary to re-hear the witnesses and review all the evidence collected by the fact-finding panel and OIOS to ascertain the facts. As such, any procedural flaw related to the expression of an opinion by OIOS on the findings of the fact-finding panel is cured by the Tribunal’s review. Neither the OIOS report nor the contested decision contain any conclusion on possible interference with the investigation by the Applicant, which would not only strongly affect his credibility in respect of the allegations of sexual harassment and abuse of authority but may also constitute separate serious offenses for which he could be held accountable. As to the allegations of bias by the fact-finding panel, the Applicant has adduced no evidence that would support them, as required by the jurisprudence of the Appeals Tribunal (Staedtler 2015-UNAT-577). As to the alleged violation of the Applicant’s right to be represented by Counsel during the investigation, the Tribunal recalls that ITC/EDB/2015/07 does not provide for such a right. The Tribunal notes that since the allegations of rape have been dismissed and that none of the underlying facts for the finding of sexual harassment in the contested decision are based upon any of the allegations made by the Complainant that the Applicant had lured her into his apartment, these evidentiary elements are not material to the contested decision. Any failure to collect them would thus not constitute a procedural flaw that could vitiate it. The Applicant’s providing implausible explanations in respect of the allegations made by the Complainant necessarily affects his credibility and this is an element to take into account when considering whether the facts have been established through clear and convincing evidence. Similar to the credibility of the Complainant, the credibility of the Applicant is material to the determination of the case. In this connection, the Tribunal finds that the Applicant’s argument that the Executive Director, ITC, reversed the burden of proof is without merit. The Tribunal has serious doubts about the credibility of both the Complainant and the Applicant, such that little weight can be given to their testimonies unless corroborated by additional evidence. The various allegations made by one another suggest the existence of a relationship that may have gone beyond a purely professional one, including various encounters outside the workplace. […] The Tribunal is also concerned by the Complainant’s motivation for filing the complaint, to which she kept adding additional grievances throughout time, including an allegation that the Applicant raped her twice almost a year after she filed her initial complaint. The Tribunal finds that there is clear and convincing evidence to establish the following facts retained in the contested decision, which are supported by material evidence. The Tribunal finds that the two text messages and the love card sent by the Applicant to the Complainant, which contain terms of endearment and convey messages of sexual or at least romantic connotation, amount to a behaviour of a sexual nature within the definition of sec. 1.3 of ITC/EDB/2015/07. The first element for sexual harassment is thus met. The Tribunal concurs with the conclusion of the Executive Director, ITC, that the Applicant’s conduct may reasonably be perceived to cause offense or humiliation to the Complainant, such that this conduct was unwelcome. Absent any information as to the context in which this conduct occurred, and without any submission or admission by the Applicant—and/or the Complainant—that they had engaged in an ambiguous relationship, the Tribunal must examine the situation in light of the standards that apply to a normal professional relationship between a supervisor and his supervisee. There is no doubt that a reasonable person would feel intimidated or offended by the above referenced messages from the Applicant and, indeed, the Complainant claimed that she was. In turn, there is not enough evidence of a situation of quid pro quo that would have required the Complainant to put the Applicant on notice that his conduct was unwelcome. The second requirement for sexual harassment is thus met. The Applicant’s conduct occurred in the workplace in the context of a superiorsubordinate relationship. There can be no doubt that it interfered with work under the terms of sec. 1.3 of ITC/EDB/2015/07 and, thus, the third element for sexual harassment is met. Therefore, the Tribunal finds that the Applicant’s conduct amounts to sexual harassment under sec. 1.3 of ITC/EDB/2015/07. This conduct also amounts to abuse of authority under sec. 1.4 of ITC/EDB/2015/07, as it occurred in a context where the Complainant was in a vulnerable situation of employment and was under a reasonable impression that the Applicant could secure her employment. The Tribunal sees no compelling reasons to intervene here in the exercise of discretion. Furthermore, the Tribunal concurs with the ASG, OHRM, that the continuing denial of the Applicant, his implausible explanations and the lack of remorse are aggravating factors. The Tribunal also considers that the element of abuse of authority constitutes an aggravating factor, as provided in sec. 1.4 of ITC/EDB/2015/07. The Tribunal found that the decision to impose a disciplinary measure of separation from service with compensation in lieu of notice and without termination indemnity was lawful.