2018-UNAT-867, Fedorchenko
UNAT held that it was not appropriate to adjudicate the ICAO Secretary-Generalās motion regarding the Appellantās claims impugning the AJABās functioning as the āNeutral First Instance Processā at that stage since the issues raised in the motion would be decided when UNAT had considered the whole of the evidence in the appeal. UNAT dismissed the motion. UNAT held that AJAB had given a very thorough, fair, and informed consideration of the Appellantās case in which it examined the irregularities alleged. UNAT rejected the Appellantās submission that AJAB erroneously admitted eight previously undisclosed documents without his āinitial trialā. UNAT held that no such obligation arose at that time and noted that the Appellant voluntarily absented himself from the hearing, at which he could have voiced any objection he might have had to the admission of the documents. UNAT held, regarding AJABās status as a neutral first instance process, that it would not admit new evidence at that stage that could have been presented to AJAB at a previous stage. UNAT rejected the Appellantās submission that AJAB was mistaken in considering that the burden of proof was upon him to substantiate his statement that the Ethics Officer was negligent in establishing the veracity and credibility of the complaints of harassment against him. UNAT held that the Appellant failed to demonstrate any error of law or manifestly unreasonable factual findings on the part of AJAB. UNAT dismissed the appeal and affirmed the decision of the ICAO Secretary-General.
ICAO Decisions: The Applicant contested the decision of the ICAO Secretary-General to reject his request for compensation related to the distress he suffered during the investigation of harassment. The investigation had ended with a recommendation that the allegations of harassment should be dismissed for lack of evidence, which was endorsed by the ICAO Secretary-General. The Applicant appealed to the Advisory Joint Appeals Board (AJAB), which concluded that the appeal was not receivable ratione materiae. The Applicant appealed that decision to UNAT. UNAT granted the appeal in part, by annulling the ICAO Secretary-Generalās decision and remanding the case to AJAB for consideration on the merits. Following the remand, AJAB unanimously recommended that the appeal should be rejected in its entirety. The ICAO Secretary-General accepted the AJABās findings. The Applicant appealed that decision. The ICAO Secretary-General filed a motion to dismiss the Applicantās claims in the appeal impugning the AJABās functioning as the neutral first instance process.
The burden of proof principle provides that the party making an allegation of misconduct or inappropriate conduct carries the burden to prove it.