UNDT/2024/018, Hatungimana
On whether the facts were established by clear and convincing evidence, the Tribunal held that, based on the credible testimony and the other evidence in the record, the Respondent had established by clear and convincing evidence that the Applicant committed the acts upon which the disciplinary measure was imposed. The Tribunal found the testimony of the victim to be credible and established that the Applicant had indeed sexually harassed the victim. Regarding misconduct, the Tribunal concluded that there was sufficient evidence of sexual harassment and which did constitute serious misconduct.
On the due process prong, the Tribunal held that the Applicant’s due process rights were respected during the investigation and disciplinary process. Regarding the Applicant’s claim that the Organisation had violated its duty of care towards him, the Tribunal concluded that the Organization did not violate any duty to the Applicant or any of his rights.
On whether the sanction was proportionate to the offence, the Tribunal concluded that the sanction imposed on the Applicant was not absurd, arbitrary, excessive or unreasonable. Contrary to the Applicant’s claim, the proven facts were not vague at all, but were clear, convincing and very serious. Accordingly, the Tribunal found that the sanction imposed in this case was proportionate.
The Applicant contested the decision to impose on him the disciplinary measure of separation from service, with compensation in lieu of notice, without termination indemnity pursuant to staff rule 10.2(a)(viii).
The role of the UNDT in disciplinary cases is to perform a judicial review of the case and assess the following elements: i. Whether the facts were established by clear and convincing evidence; ii. Whether the facts established amount to misconduct; iii. Whether the staff member’s due process rights were guaranteed during the entire proceeding; and iv. Whether the sanction is proportionate to the gravity of the offence.