²Ù±ÆÊÓƵapp

The essential question for determination on appeal is whether the UNDT correctly held that the alleged misconduct of creating a hostile work environment and giving of gifts was proved in accordance with the standard of clear and convincing evidence. In other words, did the evidence establish the alleged misconduct to a high degree of probability? At its essence, therefore, this case involves strongly contested disputes of fact about whether AAC conducted himself in a manner that was abusive and created a hostile working environment. The Administration says he did. AAC strongly denies it. Thus, it was necessary for the UNDT to resolve the disputes of fact in accordance with the conventional judicial methodology for resolving disputes of fact. Unfortunately, the key factual findings of the UNDT in relation to the relevant issues are not clearly explicated in the Judgment. The Judgment does not coherently identify the evidence relied upon to make the critical findings against AAC. Besides not referring to the witnesses who testified on behalf of both parties, there is no overt attempt in the Judgment to analyze or assess the testimony of such witnesses to determine its reliability and credibility with a view to making specific factual findings on the probabilities. The assessment of the evidence for the most part appears to have been based on the hearsay analysis in the OIAI report and the statements of witnesses who did not appear before the UNDT. Most of the findings are vague, impressionistic, unsubstantiated, rely on untested hearsay, or merely repeat factual allegations from witness statements without reaching conclusive findings. Prejudicial opinions are expressed about AAC’s character which are accepted as true and accurate without any clearly articulated supporting factual foundation for them. In addition, the UNDT’s findings are inconsistent. In some instances, the UNDT discounted the evidence as subjective and unreliable but then went ahead and relied upon that very same evidence to make adverse findings against AAC. Thus, as counsel for AAC correctly pointed out, the UNDT acknowledged that many accounts of the other staff members (in the OIAI report) lacked sufficient probative value when looked at in isolation and were too subjective to stand as evidence of harassment. But then it later contradicted itself by holding that the hearsay comments illustrated the unhealthy work environment and found unsustainably that it was improbable that staff members would speak in these negative terms unless there was truth to the allegations. It thus simultaneously, and incongruously, rejected and accepted the same evidence.  In the final analysis, there has not been proper fact-finding in relation to the key issues in this case. The Judgment in many parts appears to be founded upon impressions drawn from the OIAI investigation report and subjective opinions about AAC’s character offered by persons who did not testify before the UNDT. It is accordingly not possible to clearly ascertain and test the factual basis of the UNDT’s conclusion that harassment was established as highly probable. There simply has not been a fair trial of the issues.  A finding that a staff member is a harasser will have serious consequences. It likely will impact significantly on his or her life, status, financial security, and family life. AAC had an unblemished employment history with the Organization which spanned 35 years during which he admirably and successfully rose up the ranks. If his impressive career is to be terminated on the grounds that he is a harasser, the factual basis for that decision must be established properly, in accordance with the conventional methodology and prerequisites of judicial fact finding, as highly probable on clear and convincing evidence. It is best therefore for the matter to be remanded to the UNDT in terms of Article 2(4)(b) of the Statute of the UNAT with a request that it make clearer factual findings with fuller and more systematic reference to the evidentiary basis upon which they are made. The findings must distinctly identify the testimony of the witnesses upon which they are based and discuss the nature of the testimony (hearsay, opinion, character etc.), its admissibility, relevance and cogency, as well as the weight afforded to it. At danger of repetition, it must be emphasized that disputes of fact must be resolved with regard to the reliability and credibility principally of the testimony of the witnesses who testified and the inherent probabilities.