UNDT/2024/080, Sophocleous
Applicant’s request for anonymization
The Tribunal found that the instant case is not comparable to AAE 2023-UNAT-1332 as the Applicant only refers to the“harm this case has caused†him and the “sensitive information†referred to in the case without providing further reasons for the Tribunal to deviate from the principles of transparency and accountability. Therefore, the Applicant’s motion was denied.
Receivability
The Tribunal clarified that the Applicant's reassignment to a post reflecting his new P-5 level after demotion is a separate administrative decision for which the Applicant did not request management evaluation. It thus fell outside the scope of the present case. Consequently, the Tribunal found that any challenge with respect to the reassignment decision is not receivable ratione materiae.
Merits
Whether the facts on which the disciplinary measure was based have been established by evidence and up to the required standard of proof
The Tribunal recalled that the standard of proof applicable to a case where disciplinary measures do not result in separation or dismissal is that of preponderance of evidence, i.e., more likely than not that the facts and circumstances underlying the misconduct exist or have occurred.
Having reviewed the evidence on record and the parties'submission, the Tribunal found that:
1. It had been established by clear and convincing evidence that the Applicant made a comment to V01 regarding "stroking a doll in his office while being naked and crying".
2. It had been established by a preponderance of evidence that the Applicant physically intimidated V02 on 23 December 2015.
3. It had been established by a preponderance of evidence that the Applicant engaged in different forms of physical contact with colleagues, which was not always welcome, invading their personal space.
4. It had been established by a preponderance of evidence that the Applicant commented on the physical appearance and attire of women and leered at women in the office.
Whether the established facts legally amount to misconduct
In sum, even though the allegation concerning the Applicant's physical contact with female colleagues was not considered harassment, the Tribunal found that the Applicant engaged in serious misconduct, including harassment as defined in sec. 1.2 of ST/SGB/2008/5 and sexual harassment as defined in sec. 1.3 of ST/SGB/2008/5. Furthermore, the Tribunal found that the Applicant failed in his obligation, as a senior manager, to ensure a work environment free of sexual harassment and to act as a role model for others, violating staff rule 1.2(f) as well as secs. 2.1 and 3.2 of ST/SGB/2008/5.
Whether the Applicant’s due process rights were observed
The Tribunal found that the Applicant’s due process rights were observed.
Whether the disciplinary measure imposed was proportionate to the offence.
In the case at hand, the USG/DMPSC imposed on the Applicant the disciplinary measure of demotion by one grade with deferment for three years of consideration for eligibility for promotion pursuant to staff rule 10.2(a)(vii). The Applicant was also required to undertake gender sensitivity training as identified by UNOV/UNODC pursuant to staff rule 10.2(b).
The Applicant did not contest the imposition of the administrative measure of having to undertake gender sensitivity training and having weighed all factors involved, the Tribunal concluded that the disciplinary measure of demotion by one grade with deferment for three years of consideration for eligibility for promotion was neither unlawful nor arbitrary, and fell within the range of reasonable disciplinary options.
Whether the Applicant is entitled to any remedies
The Tribunal rejected the Applicant’s request for remedies.
In view of the foregoing, the Tribunal decided to reject the application in its entirety.
The Applicant, a staff member of the United Nations Office on Drugs and Crime (“UNODCâ€), contests the decision imposing on him the disciplinary measure of demotion by one grade, with deferment for three years of consideration for eligibility for promotion.
It is well-settled case law that “the names of litigants are routinely included in judgments of the internal justice system of the United Nations in the interests of transparency and accountability, and personal embarrassment and discomfort are not sufficient grounds to grant confidentiality" (Buff 2016-UNAT-639).
The Tribunal is mindful that “the matter of the degree of the sanction is usually reserved for the Administration, which has discretion to impose the measure that it considers adequate to the circumstances of the case and for the actions and conduct of the staff member involvedâ€. As such, the Tribunal “will only interfere and rescind or modify a sanction imposed by the Administration where the sanction imposed is blatantly illegal, arbitrary, adopted beyond the limits stated by the respective norms, excessive, abusive, discriminatory or absurd in its severity†(Iram 2023-UNAT-1340; Appellant 2022-UNAT-1216).
The Appeals Tribunal has consistently held that the Secretary-General “has the discretion to weigh aggravating and mitigating circumstances when deciding upon the appropriate sanction to impose†(Nyawa 2020-UNAT-1024; Ladu 2019-UNAT-956).