UNDT/2020/050, Muteeganda
The Respondent requested the Tribunal to redact the names of the victim and her family from “any public filings in this caseâ€. The Tribunal considered the request reasonable and decided to refrain from using the victim’s name as well as the name of the members of her family in its judgment to preserve their privacy and to protect them from any negative repercussion. Based on the evidence on file, the Tribunal found that the facts on which the disciplinary measure was based had been established by clear and convincing evidence. Since the Applicant had been working for the Organization since 2006, he perfectly knew or should have known that he was subject not only to the Regulations and Rules of the Organization but also to the highest ethical standards. The Tribunal found that the sanction was adequate and proportionate to the gravity of the offence, and that it was aligned with the zero tolerance policy of the Organization in relation to sexual exploitation and abuse. The Tribunal is satisfied that all the procedural rights foreseen in the internal legal framework were granted to the Applicant. The Applicant’s request for compensation was rejected.
The Applicant contested the decision to dismiss him from service following a disciplinary process for alleged misconduct.
The standard of review in disciplinary cases was recently reiterated in Nadasan 2019UNAT-918 (para. 38) whereby the UNDT will examine: i) whether the facts on which the disciplinary measure is based have been established (by a preponderance of evidence, but where termination is a possible sanction, the facts must be established by clear and convincing evidence) ii) whether the established facts amount to misconduct iii) whether the sanction is proportionate to the offence and iv) whether the staff member’s due process rights were respected. In accordance with section 3.2(b) of ST/SGB/2003/13, “sexual activity with children (persons under the age of 18) is prohibited regardless of the age of majority or age of consent locally†and that [“m]istaken belief in the age of a child is not a defenceâ€. Staff members of the United Nations are bound by a strict set of internal rules and regulations that do not only impose legal rights and obligations but also set ethical standards. In the context of disciplinary cases, proportionality comes into play as an essential principle that guides the decision-maker when choosing the appropriate sanction according to the gravity of an offence and the specific circumstances of a case-from a set of different possible ones. It is incumbent on the Applicant to identify the errors and breaches of due process rights committed, if any, during the investigation and the disciplinary process. The disciplinary process is not of a criminal nature and, as consequence, the applicable procedural safeguards are different and less stringent. Full procedural guarantees only come into play in the context of a disciplinary process, not earlier (see Powell 2013UNAT-295 and Akello 2013-UNAT-336). Under art. 10.5(b) of the Tribunal’s Statute, compensation for harm can only be granted if it is supported by evidence and, in general, if the contested decision is unlawful.