2013-UNAT-302, Applicant
UNAT considered an appeal by the Secretary-General. UNAT held that the weight of the evidence, in that case, justified the decision taken by UNICEF. UNAT held, while acknowledging the importance of confrontation and cross-examination of witnesses, that due process did not always require that a staff member defending himself against disciplinary action for summary dismissal had the right to confront and cross-examine his/her accusers. Under certain circumstances, denial of this right did not necessarily fatally flaw the entire process, so long as it was established to UNAT’s satisfaction that the accused was afforded fair and legitimate opportunities to defend his/her position. In the instant case, UNAT was satisfied that the key elements of the staff member’s rights of due process were met: he was fully informed of the charges against him and the identity of his accusers and their testimony. UNAT held that the staff member was able to mount a defence and to call into question the veracity of their statements. UNAT upheld the appeal and vacated the UNDT judgment.
UNDT Judgment: The Applicant contested the decision to summarily dismiss him based on allegations of sexual harassment. UNDT concluded that the sanction of summary dismissal was based on unsubstantiated charges and that the Applicant’s due process rights were violated when he could not cross-examine the complainants, who did not appear at the hearing before UNDT.
Due process does not always require that a staff member defending himself against disciplinary action for summary dismissal has the right to confront and cross-examine his/her accusers.