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Of 40 UNITED NATIONS DISPUTE TRIBUNAL Before: Judge Eleanor

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Of 40 UNITED NATIONS DISPUTE TRIBUNAL Before: Judge Eleanor Case No.: UNDT/GVA/2019/009 Judgment No.: UNDT/2021/043 UNITED NATIONS DISPUTE TRIBUNAL Date: 28 April 2021 Original: English Before: Judge Eleanor Donaldson-Honeywell Registry: Geneva Registrar: René M. Vargas M. APPLICANT v. SECRETARY-GENERAL OF THE UNITED NATIONS JUDGMENT Counsel for Applicant: George Irving Counsel for Respondent: Matthias Schuster, UNICEF Alister Cumming, UNICEF Page 1 of 40 Case No. UNDT/GVA/2019/009 Judgment No. UNDT/2021/043 Introduction 1. The Applicant’s career with the United Nations Children’s Fund (“UNICEF”), spanned his adult life, from 1984 to 2018. In 2018, he served on a permanent appointment as a Senior Adviser, which was a supernumerary post, following his removal from a country office he had been appointed to as Head of Office. 2. On 28 December 2018, the Respondent informed the Applicant that he was dismissed with immediate effect, for abuse of authority, harassment, and sexual harassment. The Applicant, by the instant application, challenges the summary dismissal decision. He seeks rescission of the decision, reinstatement and compensation. 3. For the reasons further explained in this Judgment, the Application is successful in part. Procedural history 4. On 20 February 2019, the Applicant filed an application before the United Nations Dispute Tribunal to challenge the Respondent’s decision to dismiss him. 5. The Respondent filed his Reply on 25 March 2019. The Respondent argues that there is clear and convincing evidence of the Applicant’s misconduct and that the sanction imposed on him was proportionate. 6. On 4 February 2021, the Tribunal issued Order No. 25 (GVA/2021) setting this matter down for a case management discussion (“CMD”). 7. The CMD took place, as scheduled, on 17 February 2021 with Counsel for both parties present. The Applicant was not present at the discussion. 8. Following the CMD, on 18 February 2021, the Tribunal issued Order No. 54 (GVA/2021) in which it recorded the salient aspects of the discussion, the issues to be adjudicated and the orders that ensued. Page 2 of 40 Case No. UNDT/GVA/2019/009 Judgment No. UNDT/2021/043 9. While the parties took the view that this matter can be decided on the basis of their written submissions and the documentary evidence that had been filed, the Tribunal’s position was that an oral hearing in which the Applicant testifies would be necessary if the parties are not able to resolve this dispute informally. The Tribunal left it up to the Respondent to decide who, if anyone, he would like to call. 10. On 10 March 2021, the parties filed separate submissions with motions for further submissions and partial postponement of the oral hearing respectively. 11. On 12 March 2021, the Tribunal issued Order No 69 (GVA/2021) with directions to the parties. Facts and Parties’ submissions 12. From 1984 to 1990, the Applicant worked in his home country on a UNICEF assisted Water and Environmental Sanitation project (“WASH”). Thereafter, he joined UNICEF as a staff member in 1990. Following assignments at progressing levels of seniority in many countries, he was appointed as the Head of the Papua New Guinea (“PNG”) Country Office in May 2016. 13. This assignment was the Applicant’s first as Head of Office. This assignment is acknowledged as having been a challenging duty station, with a difficult programme and office environment. 14. The Applicant’s challenges with handling the situation were addressed early on, in supportive correspondence by his first line supervisor, namely the Regional Director, Regional Office of East Asia and Pacific (“EAPRO”). Staff members’ complaints about the Applicant being unpredictable and not consulting with them properly were discussed. 15. There were also several missions by the Regional Office to the Country Office in 2016 to deal with the challenges. The appointment of a Deputy Representative in May 2017 to assist with the management of the Country Office, which position had been difficult to fill, was one of the measures taken to alleviate the difficulties faced by the Applicant. Page 3 of 40 Case No. UNDT/GVA/2019/009 Judgment No. UNDT/2021/043 16. Despite the difficulties associated with the Country Office, the Applicant was appraised on 3 May 2017 as a person who relates easily with colleagues and partners, and a strong network and partnership builder; it was also recorded that he “communicates well” but could do with improving on his “active listening skills.”1 The Regional Director’s final comments are noteworthy for the context provided: 2016 has been a year of enormous transformation for [the Applicant]. He is very eager to become a respected leader. The context in which programs are delivered is very challenging in PNG including because of the violence against women and children and the lack of connectivity and means to reach deprived rural populations. The Office had too many vacancies and maybe not all staff have the right profile to achieve the expected results. [The Applicant] had to work very long hours often having to deal with meeting high expectations. He is likely to grow into his new role. I hope to see in 2017 more active participation in RMTs. I would like to thank [the Applicant] for organising an impressive mission for the DED, Management, Fatoumata, and myself in December 2016. The mission gave a lot of insights of the conditions under which the UNICEF programs are delivered. 17. On 3 September 2017, the Deputy Representative complained of harassment and abuse of authority by the Applicant to the Regional Director. She also had concerns about the Applicant’s leadership of the Office. 18. The Regional Director forwarded the allegations to the Deputy Executive Director (“DED”), Management and the Director, Division of Human Resources (“DHR”). 19. On 6 September 2017, the Director, DHR, forwarded the Deputy Representative’s complaint to the Office of Internal Audit and Investigations (“OIAI”), together with seventeen other grievances by PNG Country Office staff members, obtained from a confidential PNG Country Office suggestion box. 1 Annex A/28 to the Applicant’s motion filed on 15 March 2021. Page 4 of 40 Case No. UNDT/GVA/2019/009 Judgment No. UNDT/2021/043 20. On 19 September 2017, the Regional Director decided, as a managerial measure, to remove the Applicant from the Country Office. The Applicant took leave but wrote to the Regional Director questioning the basis of the decision to remove him from the Country Office. He pointed out what he saw as performance issues with the Deputy Representative. He further indicated that from the outset of the Deputy Representative’s appointment, he tried to work to address her shortcomings whilst she sought to undermine his role as Head of Office. 21. On 28 September 2017, a staff member who was not assigned to PNG (“C1”) contacted the Principal Adviser, UNICEF, to report that the Applicant had engaged in inappropriate conduct of a sexual nature with her. The conduct she referred to was said to have taken place in 2013, when they worked at a different duty station. 22. The Applicant was later placed in a supernumerary post in New York on 26 December 2017. On 24 February 2018, he was placed on administrative leave with full pay (“ALWFP”), upon notification that OIAI was undertaking an investigation. The investigation commenced with remote interviews. 23. From 16 April to 4 May 2018, OIAI conducted an on-site investigation at the Country Office; and obtained witness statements from approximately forty current and former staff members, the vast majority of whom worked in the Country Office. There were a few witnesses, including C1, who came forward as having worked with the Applicant in Sudan and Afghanistan. 24. During the investigation, further allegations of sexual harassment arose and these were also investigated. On 26 April 2018, OIAI provided the Applicant with a list of certain allegations made against him. He submitted a response, which included the names of approximately 18 witnesses, including “X1”, who could speak favourably about the Applicant. 25. On 5 September 2018, OIAI provided the Applicant with a copy of its draft investigation report for his comments. This report included summaries of the testimony given by witnesses including some of those suggested by the Applicant, such as X1. Page 5 of 40 Case No. UNDT/GVA/2019/009 Judgment No. UNDT/2021/043 26. The Applicant submitted his comments on 24 September 2018. On 8 October 2018, the final copy of the report, including the Applicant’s comments, was sent to the Director, DHR. The Investigation Report identified facts relevant to areas of alleged misconduct under four headings, namely: a. Harassment; b. Irregular recruitment of two local consultants; c. Sexual Harassment, and d. Abuse of authority. 27. On 25 October 2018, the Director, DHR, issued a charge letter. The allegations listed included the same subject headings as the Investigation Report, except that the irregular recruitment and abolition of post allegations were listed as sub-headings under abuse of authority. 28. The Applicant was charged with abuse of authority encompassing harassment, sexual harassment and failing to ensure a harmonious work environment contrary to staff regulations 1.2(a), (b), (f), (g) and (m), staff rules 1.2(f), (k), (q), and 10.1(a), constituting misconduct under CF/EXD/2012-005, secs. 1.4(a) and (m), breach of the staff selection principles under CF/EXD/2016-007, sec. 1.1, breach of the policy of discrimination, harassment, sexual harassment and abuse of authority under CF/EXD/2012-007, secs. 1.1(b), (c) and (d), secs. 2.1, 2.2, 2.3 and 4.1 and breach of the Standards of Conduct for the International Civil Service under paras.
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