2024-UNAT-1494/Corr.1, Zafarkhon Sheralov
The UNAT first considered the staff member’s request for an oral hearing, and decided it was not necessary for the expeditious and fair disposal of his case.
The UNAT observed that when the only persons present in a physical assault are the perpetrator and the victim, an oral hearing may be useful for reaching credibility findings. However, in this case, the UNAT noted that the staff member and his counsel agreed that they had no witnesses to present at an oral hearing and preferred to rely on the investigation report. In these circumstances, the UNDT did not err in not holding an oral hearing.
The UNAT held that the UNDT properly considered the credibility of the staff member and the unarmed security guard (the complainant) when making its findings. The sworn witness statements of individuals who received reports of the assault immediately after it occurred were credible. A video and photographs also corroborated the complainant’s account. The UNAT also found that the UNDT reasonably concluded that the staff member’s explanation of the incident was contrary to other evidence or contained internal discrepancies.
The UNAT agreed with the UNDT that the facts of the physical assault were established by clear and convincing evidence, and that this amounted to misconduct under the relevant Staff Regulations and Rules. The UNAT also held that the UNDT correctly found that the sanction of separation from service reflected the past practice of the Organization in similar matters as well as the mitigating and aggravating factors in the case.
The UNAT found no due process violations. In particular, the UNAT held that it was reasonable for the Head of UNAMA to be the responsible official for oversight of the investigation, and that there was no material error in the Special Investigation Unit conducting the investigation instead of OIOS.
The UNAT dismissed the appeal and affirmed the UNDT Judgment.
In Judgment No. UNDT/2023/116, the UNDT dismissed the staff member’s, Mr. Sheralov, application in which he challenged his separation from service for assaulting an unarmed security guard inside the compound of the United Nations Assistance Mission in Afghanistan (UNAMA). The UNDT concluded that the Administration had established the facts of the assault by clear and convincing evidence, and that the disciplinary measure of separation from service was proportional to the nature and gravity of the misconduct. In addition, the UNDT concluded that the staff member failed to substantiate any procedural irregularities that materially impacted his case.
The staff member appealed.
Evidence, which is required to be clear and convincing, can be direct evidence of events, or may be evidential inferences that can be properly drawn from other direct evidence.
What weight will be given to the investigation report and whether an oral hearing will be ordered will depend on the circumstances of the case and on an assessment of the totality of evidence.
While hearsay evidence has its intrinsic limitations and drawbacks by virtue of its nature, it nevertheless can be admissible and relied upon in appropriate circumstances as long as the Dispute Tribunal Judge understands those limitations and ensures that it is considered with caution.
Reports of spontaneous statements made by a person who is still under stress from a startling event are exceptions to the rule against hearsay and considered likely to be trustworthy because they are unlikely to be premeditated.
The employment relationship or length of service with the Organization does not make the employee more credible or reliable than the non-staff member with respect to an individual incident.
Due process entitlements, which every staff member has, come into play in their entirety once a disciplinary process is initiated. During the preliminary investigation stage, only limited due process rights apply.
When reviewing due process rights issues in disciplinary cases, the Tribunal bears in mind that procedural fairness is a highly variable concept and is context specific.