UNDT/2019/120, Jackson
The Tribunal, after hearing evidence and submissions but before reaching a determination on the merits of the case save for a finding of procedural error, decided that this was an appropriate case in which to invoke art. 10.4 of the UNDT Statute to seek the concurrence of the Secretary-General to remand the case for institution or correction of the required procedure. The Tribunal considered it appropriate to approach the Secretary-General directly and not through Counsel who represents the SecretaryGeneral as the Respondent in this case. The Tribunal considered that such an approach would: (i) avoid any risk of a perception of actual or potential bias (ii) protect the integrity of the Tribunal and (iii) serve to preserve confidence in the Organization’s policies and procedures and the Secretary-General’s personal commitment to ensuring zero tolerance of sexual harassment, responding rapidly to allegations, supporting victims through their trauma and ensuring commitment and accountability for all concerned in the process. The Tribunal found that there were unconscionable procedural delays and that the failure to keep the Applicant informed of any progress in the investigation was unacceptable. The delay of 16 months was bereft of any justification. The Tribunal opined that such failures, if not curbed, will have the effect of undermining the very policy underpinning ST/SGB/2008/5 which is intended to protect staff from prohibited conduct, in this case sexual misconduct and/or assault. The Tribunal found that there were fundamental flaws in the investigation including, the failure to obtain the Applicant’s comments on the evidence obtained from the person who claimed to have been an eyewitness. The Tribunal also found that there was a failure on the part both of those responsible for the investigation and the OiC ASG/OHRM, who reviewed the investigation report, to recognize that there was a breach of due process when the Applicant was not provided with the opportunity of rebutting the evidence given by a person who stated that he was a witness to the events in question. The Tribunal found that there was a failure to act in full accordance with both the letter and spirit of the Organization’s policy and the published commitments of successive Secretary-Generals to a policy of zero tolerance of sexual harassment and/or assault.
The implied decision not to formally respond with a decision as to whether an investigation would take place following allegations of sexual misconduct pursuant to ST/SGB/2008/5.
Pursuant to art. 10.4 of the UNDT Statute, prior to a determination of the merits of a case, should the Dispute Tribunal find that a relevant procedure prescribed in the Staff Regulations and Rules or applicable administrative issuances has not been observed, the Dispute Tribunal may, with the concurrence of the Secretary-General of the United Nations, remand the case for institution or correction of the required procedure, which, in any case, should not exceed three months. In such cases, the Dispute Tribunal may order the payment of compensation for procedural delay to the applicant for such loss as may have been caused by such procedural delay, which is not to exceed the equivalent of three months’ net base salary. A referral under Article 10.4 of the Tribunal’s Statute falls outside the adversarial process, and is directed to the Secretary-General in his/her independent capacity as the Chief Administrative Officer of the United Nations and not as the Respondent in the case.
The Tribunal concluded that there was no matter for further judicial consideration because the Secretary-General had taken appropriate action, following his concurrence that the case be remanded under article 10.4 of the Statute for institution or correction of the required procedure and the payment to the Applicant of the equivalent of two months’ net base salary.