51ÁÔÆæ

Due Process: UNAT concluded in Molari that ¡°disciplinary cases are not criminal.¡± So therefore the right and rules pertaining to self-incrimination are purely associated with criminal procedure and therefore does not apply in this instance which is a disciplinary case. The Tribunal finds that she was provided systematically with the evidence, including the payslips in the course of the interview, in addition to an opportunity to review the record of interview. Ultra vires: In this case the person who took the decision as recorded in the letter of dismissal was the Under Secretary-General for...

Due Process: It is UNAT jurisprudence that based on the staff rules there is no mandatory right to counsel for staff members who are undergoing interviews during the preliminary investigation of allegations for misconduct. Ultra vires: The author of the decision in this case was not the person who signed the 15 August 2011 dismissal letter but, as referred to in the letter, was the Under-Secretary-General for Management who took the decision on behalf of the Secretary-General. Pursuant to ST/AI 371/Amend.1, the decision-maker had the proper authority to do so and the decision was not ultra...

The Tribunal found that the PCO¡¯s role was vitiated by bias towards the Applicant, the evaluation of the Applicant was not objective, the selection exercise was unlawful and the Organization failed to discharge the burden of presumption of regularity. Naming of names: The Statute does not define ¡°personal data¡±, but for the purposes of judgments, it is unlikely to include names. Applicants are routinely named by the UNDT and UNAT in the headings of published cases except in circumstances where anonymity is granted by the Tribunal. Bias: In the legal sense, may be actual or apparent but either...

Management evaluation: The Applicant requested management evaluation of each of the administrative decisions that he challenged before the Tribunal. Mediation: the Tribunal found that mediation was sought by the Respondent regarding the proposed disciplinary measure of demotion but the discussion between the Applicant and the ombudsman, went beyond the scope of the demotion. Mediation was sought within the deadline for filing the Application. The time for filling an Application starts from the date when mediation breaks down therefore the application was filed within the applicable time limits...

The Tribunal held that the Administration did not have sufficient evidence of Mr. Koutang¡¯s level of engagement in outside activities to justify a finding that he had engaged in an outside occupation or employment. Thus, there were no reasonable grounds to sustain a finding of conflict of interest. While Mr. Koutang had installed a private router in his office there was no breach of security and no willful misconduct. Mr. Koutang had no ulterior motive or malicious intent in installing the router. It was at most an error of judgment with no proven adverse effects on the Country Office. The...

The Tribunal held that the delay by the Respondent without reason was a ¡®manifest abuse of the proceedings¡¯ which entitled the Applicant to an award of costs. In light of said delays by the Respondent the Tribunal awarded the Applicant interest from the date of wrongful separation until the payment of compensation, and for the moral damages award, interest from the date of award by the JAB. The Tribunal held that as there is no practical difference between the terms ¡®net¡¯ and ¡®net base¡¯ pay, the Applicant is not entitled to the additional payments which amount to the ¡®gross¡¯ sum of his salary...

The fact that the attempt to defraud the medical claims system was not successful did not diminish the Applicant¡¯s liability in having made a false claim, as such; his actions destroyed the faith of the Organization in the Applicant which was necessary for continuing employment relationship. Proportionality: Although comparison between other similar cases can be referred to, they should be treated with caution as every case turns on its own facts. In determining whether to lessen the imposed sanction, the Tribunal will consider mitigating circumstance that had not been previously considered....

A judgment must be uncertain or ambiguous to be open to interpretation by the Tribunal. The Tribunal held that paragraph 19 of the judgment was an obiter observation by the Tribunal and did not have a bearing on the reasoning or outcome of the final judgment. The Tribunal found that paragraph 19 was neither uncertain nor ambiguous. The Tribunal held that Article 12.3 must not be used to re-open proceedings, and this is what the Applicant had attempted to do.

The Applicant applied twice for the position of Director of Investigations, Office of Internal Oversight Services (¡°OIOS¡±) (¡°the Post¡±) at the D-2 level. The Post was first advertised in a vacancy announcement in 2008 and again in 2009. A selection panel set up by OIOS recommended him as the only qualified candidate for the Post in each instance. Neither of these recommendations was approved by the Special Review Group (¡°SRG¡±) and, as a result, no appointment was made to the Post. A third vacancy announcement was issued, for which the Applicant did not apply. The Applicant submits that he...

Judicial review of disciplinary cases: It was not required or expected of the staff members under the former system of justice to file separate appeals regarding each intermittent stage of the disciplinary process. It is impossible to artificially split the disciplinary process into separate stages after its completion and file separate appeals with the Tribunal with respect to each stage, expecting that they would be considered piece-meal. Moreover, even if that were possible, the Applicant would have been required to submit separate appeals to the JDC or file separate requests for...

The Respondent was required to act in the best interests of the Organization, when reassigning the Applicant, and it was principally for the Respondent as the Chief Administrative Officer of the Organization, pursuant to art. 97 of the United Nations Charter, to define what those interests were in the context of the administration of the Organization Outcome: For respondent (merits).

Calculation of compensation. The Tribunal will determine the amount of income the Applicant is likely to have earned but for the impugned decision (pecuniary damages) and the extent of the non-pecuniary harm caused to by the decision to terminate her. Pecuniary damages. It is necessary to consider her fitness to return to work; the likely duration of the contract she could reasonably have expected to have been given; and the amount of work she would likely have been able to perform in view of her disability during the hypothetical contract period. Duration of a hypothetical contract period. It...

The main legal issues in this case are whether the Applicant and the Organization had entered into a contract and whether the Applicant is entitled to access to the system of justice of the United Nations. The Tribunal found that no binding contract of employment was concluded by the Applicant and the Organization. The Applicant was not a staff member at the time the decision was made not to select her for the vacancy and the Tribunal does not have jurisdiction over this case. Outcome: The application was rejected.

Outcome: The Tribunal awarded the Applicant USD25,000 for the breach of his rights and the resultant harm. The Applicant also contested the decision to remove some of his functions from him and modify his reporting arrangements, to initiate and carry out a fact-finding management review in relation to his performance, and to place him on special leave with full pay (¡°SLWFP¡±). The UNDT made the following findings. The Respondent failed to meet its obligations for assessing and managing the performance of the Applicant. The Respondent did not fully and fairly raise the performance issues at the...

Outcome: The application was rejected. The UNDT made the following findings: The preliminary fact-finding investigation was initiated properly, but was flawed, because the Applicant was not re-interviewed or given the opportunity to answer the allegations of sexual harassment in writing after the full scope of allegations became known to the investigation panel. However, these flaws did not vitiate the contested decision as they were cured in the process that followed. The findings of the fact-finding investigation report and the accompanying documents justified the decision to initiate formal...

The Tribunal rejects the Applicant¡¯s submission that the expert panel did not; have the authority to compile a list of recommended candidates to the Director of the department based on its assessment of all the candidates participating in the selection process.; There is no requirement in any of the regulations, rules or policies of the; Organization for all expert panel members to undergo training in competency-based interviewing.; The Tribunal concludes that the fact that one out of three members of the expert; panel who interviewed that Applicant had not received competency-based training...

The Tribunal finds that the Applicant has not identified any detrimental effects on him caused by the combination of the selection processes established or that he was; misled by the combined process.;. The Applicant did not meet one of the job requirements, therefore, he had no expectation of being selected against the posts.; In the absence of any prospect of being selected for the Posts, the Tribunal finds that the Applicant has not established that he suffered any harm from being considered along with other candidates.; Nothing on the record suggests that any of the questions that the...

The Tribunal notes that the Applicant has not submitted any evidence to support his claim that the Respondent was biased towards him and nothing in the case record suggests otherwise. His contention therefore fails.

The Tribunal is satisfied that since the Post was advertised well before the expiry of the roster on which the successful candidate¡¯s name was included, the successful candidate was eligible to be selected from the roster andthe decision to select him from the roster was, hence, proper. The Tribunal finds that as a roster candidate the Applicant should have been informed by the hiring manager within 14 days after the selection decision was made in writing. The Tribunal finds that even in the absence of a clearly stated timeframe for notifying applicants who have been eliminated prior to the...

The process leading up to the termination decision. A human resources office, such as OHR, has the obligation to ensure that its administrative decisions are taken on a proper factual basis and, if necessary, make the necessary enquiries to ensure this to protect the affected staff member¡¯s rights. OHR failed to inform the Applicant and the relevant medical advisors about the consequences of her being declared disabled by UNSPC and about her possible alternatives. OHR also failed to delay the examination of the Applicant¡¯s case by UNSPC. All these circumstances breached the Applicant¡¯s rights...