UNDT/2025/009, Herrera
The Tribunal was mindful of the Organization’s “zero-tolerance” policy against sexual harassment and abuse as well as of the need for the Organization to protect its reputation and the integrity of the workplace.
The Tribunal noted that the standard required at the stage of imposing the administrative leave without pay ("ALWOP") is not “clear and convincing evidence” but “reasonable grounds to believe”, which is a lower standard. On balance, the Tribunal was satisfied that the initial phases of the investigation uncovered sufficient evidence to support a reasonable suspicion that the Applicant had engaged in the alleged sexual abuse.
The Tribunal also recognized that ALWOP is an extraordinary administrative measure designed to be of short duration and that while it might seem like a harsh decision to make, it is not disproportionate in cases of sexual misconduct (Muteeganda 2018-UNAT-869, para. 41). Moreover, although being put on ALWOP places a considerable financial burden on a staff member, the situation can be promptly remedied by reinstating the staff member’s payments and entitlements if at the conclusion of the investigation the allegations of sexual misconduct are found not to be supported by the evidence.
The Applicant filed an application contesting (a) the decision to place him on administrative leave without pay (“ALWOP”) ; (b) the management evaluation response upholding the decision to place him on ALWOP; and (c) the decision d to extend the ALWOP.
Pursuant to the well-established jurisprudence of the Appeals Tribunal, the Dispute Tribunal has the authority to define the contested administrative decision in a case (see, for instance, Dia 2024-UNAT-1452, para. 39). The Appeals Tribunal has also held that the Dispute Tribunal has “the inherent power to individualize and define the administrative decision challenged by a party and to identify the subject(s) of judicial review” (Fasanella 2017-UNAT-765, para. 20, and similarly, in, for instance, Loto 2022-UNAT-1292, para. 45; and Massabni 2012-UNAT-238, paras. 25-26).
The Appeals Tribunal has also reiterated that “[a] determination as to whether a decision is of an administrative nature or not is to be undertaken on a case-by-case basis having regard to the nature of the decision, the legal framework under which the decision was made, and the consequences of the decision (Hoxha 2024-UNAT-1465, para. 43; see also, for instance, Najjar 2021-UNAT-1084, para. 29; Andati-Amwayi 2010-UNAT-058, para. 19, and Ngokeng 2014-UNAT-460, para. 27).
The Tribunal recalled that in the course of these proceedings, it was made aware of other unrelated evidence calling into the question the credibility of the Complainant. However, the Tribunal did not find any of that evidence relevant to the present case and did not take it into consideration in reaching its judgment on the lawfulness of the contested decision on ALWOP.