51ÁÔÆæ

Improper motives: Whilst it is permissible for the drafters of a job opening to deviate from previously established evaluation criteria where circumstances demand it, the deviation must not be actuated by bad faith or improper motives. The Tribunal concluded that the deviation from the established criteria in this case with respect to the subject Job Opening No. 21952 was informed by the desire of the incumbent of the post with the active support of the Hiring Manager to ensure that the recruitment process in respect of the Job Opening was aborted and she was retained in service beyond the...

Pleadings - A defence to a claim must say which of the allegations in the particulars of claim are admitted, which are denied and which allegations the defendant is unable to admit or deny, but requires the claimant to prove. Every allegation made in a claim should be dealt with in the defence. Where an allegation is denied, this normally implies that the defendant intends to put up a positive case to the contrary. Where the defendant denies an allegation, he must state his reasons for doing so; and if heintends to put forward a different version of events from that given by the claimant, he...

Abuse of Process: Proceedings before the Tribunal are not the proper forum to advocate legal reform. Where the Tribunal determines that any applications before it are frivolous, vexatious and/or an abuse of the Court¡¯s process, it will not hesitate to visit sanctions upon the offending party as provided for in the UNDT Statute. Vexatious Proceedings: An action may be held to be vexatious if it is obviously unsustainable, or frivolous, improper or instituted without sufficient ground to serve solely as an annoyance to the Respondent.

Administrative decisions: What an administrative decision is or is not depends on the nature of the decision, the legal framework under which the decision has been made and the consequences of the decision, which dispels any notion that administrative decisions can be placed in any kind of legal strait jacket. Performance evaluation: Notwithstanding the bar to rebutting successful performance ratings in section 15.1 of ST/AI/2010/5, when a contested administrative decision is alleged to be in violation of the legal issuances of the Organization, it is actionable before the Tribunal in so far...

Classification - There is no evidence that the procedure for a re-classification of the Broadcast Technology Officer (¡°BTO¡±) post encumbered by the Applicant in UNMIS was ever undertaken. As already pointed out, the Chief of radio took it upon herself to re-write the competencies of the post to which in January 2010, the Applicant had been competitively recruited before she came on board as Chief of radio, perhaps in order to make the Applicant who was encumbering the post, less eligible.

Delegated Authority - The termination decision was taken without the requisite delegated authority...

The Tribunal finds that, pursuant to art. 2.1(a) of the Statute of the Dispute Tribunal, the Applicant¡¯s claim is receivable. Meaning of an ¡°agreement reached through mediation¡± - A plain reading of the full text of art. 8.2 requires that a mediated agreement must be reduced in to writing and signed by the parties as otherwise it would be inconceivable how the implementation of such an agreement would be enforced as provided for in the latter part of art. 8.2 of the Statute of the Dispute Tribunal.

Receivability: The Applications were filed within the applicable time limit, all the Applicant¡¯s claims were properly submitted for management evaluation and are therefore receivable. Full and fair consideration: The Applicant was not given full and fair consideration in the selection process. The Chief, UNON/DSS, has consistently employed personal methods to frustrate the Applicant¡¯s career prospects. Harassment: The Applicant was a victim of harassment in the workplace. The Chief, UNON/DSS¡¯ actions constituted harassment as defined under para. 1.2 of ST/SGB/2008/5. Abuse of authority: The...

Due process: The evaluation of the Applicant¡¯s performance for the 2008/2009 reporting cycle was not carried out in accordance with the established procedures and materially discredits the Respondent¡¯s case. UNON had an obligation to defer the non-renewal decision until the rebuttal process had been completed but failed to do so. This was a violation of the Applicant¡¯s due process rights. Bad faith: The negative relationship between the Applicant¡¯s former FRO and SRO was contributory to the non- renewal of the Applicant¡¯s contract. The Applicant¡¯s SRO demonstrated ill-motive and unethical...

The Tribunal considered that an employer does not have an unqualified right to refuse to accept a resignation and rejected the Applicant¡¯s submissions on receivability. The receivability of any application before the Tribunal is subject to the statutory requirement of article 8.1(c) of the Statute of the Dispute Tribunal, which is categorical that where required, an Applicant must submit a request for management evaluation of a contested decision.

The Organization¡¯s jurisdictional competence does not extend to the physical assault of a non-UN staff member by a staff member. It was within the province of the Respondent or his agents in this case to investigate the events leading up to the physical assault of Ms. Oduke. Having established that Ms. Oduke had been physically assaulted, the appropriate action for the Administration after that would have been for Ms. Oduke, as a non-staff member, to be advised or even assisted to file charges againstthe Applicant for assault in the appropriate local court. The conclusions of the local court...

The Applicant had argued that the written reprimand was a veiled disciplinary measure and as such there was no need to request a management evaluation. The Tribunal does not agree as it is for the Tribunal to make a determination as to whether the sanction was a veiled disciplinary measure or not. In view of the preceding, the Tribunal finds and holds that the Applicant¡¯s claims contesting the managerial action of a written reprimand are not receivable as they were never submitted to a management evaluation as required under art. 8(1)(c) of the Statute of the Tribunal. As stipulated at para. 5...

All the unresolved questions, the established facts and the Applicant¡¯s failure to bring evidence in order to convince the Tribunal of the alleged extortion scheme against him support an inference that the Applicant had likely engaged in a sexual relationship with V01, a minor. Given all the surrounding circumstances of the charge, investigations and his own actions and explanations, the Applicant has not sufficiently discharged the burden upon him. The wording in paragraphs 3.2 (a) and (b) of ST/SGB/2003/13 is clear. Sexual exploitation and sexual abuse constitute acts of serious misconduct...

The Tribunal found that the application was filed within the applicable time limits. The Tribunal found that in respect to decision 3, the Applicant requested management evaluation outside the prescribed time limit and therefore the Application with regard to decision 3 was not receivable. Mediation and Time-Limits: If a party to a dispute makes mediation overtures within the applicable time lines for filing an Application and the other party consents to participation in the mediation process then the time limit for filing an Application is suspended and begins to run when the mediation has...

The Dispute Tribunal shall not award exemplary or punitive damages. The Tribunal did not find any procedural flaws in the competitive review process as it was implemented in the Applicant¡¯s case. All three candidates for the PIO posts were assessed against the same methodology and criteria adopted by the CRP. The Applicant was not accorded full and fair consideration for the second P-3 PIO post in UNMISS contrary to the policy adopted by the CRP. In this regard, there were both substantive and procedural irregularities on the part of the Respondent.The Applicant is entitled to compensation for...

On the score of prima facie unlawfulness, the Tribunal noted that, in the letter to the; Applicant dated 19 November 2012, the Chief Human Resources and Planning Section (HRPS), informed her that her application of for the FS-5 post was not successful. The Applicant was also informed that a suitable positin had been identified for her, namely, a Claims Assistant at the G-6 level. The Tribunal found that the identification of a G-6 level post for the Applicant who at the time encumbered an FS-4 level post could not be considered a suitable position for the Applicant as required by sections 10.2...

The Administration, having reviewed the OIOS report, had reason to believe that the Applicant may have engaged in unsatisfactory conduct for which disciplinary measures may be imposed. The discretion was exercised judiciously by the responsible officers after review of the OIOS Investigation Report. The findings of the ASG/OHRM were those of an objective observer who had scrutinized the entire dossier and made conclusions on the basis of the evidence before him. There was no procedural irregularity on the part of the Organization as there was full compliance with ST/AI/371. Where an Applicant...

The events leading up to the Applicant¡¯s separation from service do not amount to a termination. The Applicant was in fact wrongly placed on Special Leave With Full Pay from 21 May 2004 to 31 December 2004. UNDP guidelines on Results and Competency Assessment do not confer any power on the Resident Representative to place a staff member on special leave with full pay for unsatisfactory performance as was done by the RR in this case. Not only was the decision to place the Applicant on SLWFP illegal, it was a disguised disciplinary measure designed to humiliate and embarrass the Applicant to the...

Reason to believe: that a staff member has engaged in unsatisfactory conduct is buttressed by a fact-finding, which in turn creates the requirement to investigate.Fact-Finding: fact-finding process is the collection and analysis of information to determine the veracity of an allegation against a staff member. It is a prerequisite for an investigation and cannot replace an investigation. As such cannot be used as the basis for imposing a disciplinary measure. Investigation: A disciplinary process can only be initiated based on proper official investigation being conducted under ST/AI/371.

The Applicant¡¯s post was one of 45 posts earmarked in November 2007 for abolition by December 2008. It is not contested that the 45 posts for abolition which included the Applicant¡¯s post were extended on GTA funding through June 2011. In the present Application on the merits, the Applicant needs to prove, at least on the balance of probabilities, that the Retention Panel was unfair in its evaluation of him and was discriminatory. Not only did he fail in his earlier suspension of action application to give particulars of the irregularities, errors, omissions and favoritism which he alleged...

The purported termination conveyed in the letter from the ED of UNOPS dated 11 May 2010 is accordingly rescinded. The Tribunal finds that the Applicant had not misused his UNLP and UN ID when he showed it to the person with whom he had entered into a business transaction. Ultra Vires: The Secretary-General or his agents in the instant case blatantly acted outside the scope of his or their authority in carrying a disciplinary process beyond the expiry date of the staff member¡¯s contract. The decision to separate the Applicant in May 2010 was manifestly ultra vires and therefore unlawful. Debt...