51ÁÔÆæ

Outcome: The Applicant¡¯s claim relating to the non-renewal of contract was not receivable (time-barred) and his claim for reimbursement of salary was rejected for lack of evidence. The Respondent was ordered to remove the note from the Applicant¡¯s file and pay the Applicant six months¡¯ net base salary for the breach of due process rights and the effect of the note on his career.

The Tribunal finds no flaws in the procedure leading to the dismissal of the Applicant. It further finds, based on its assessment of the intern¡¯s credibility and on the evidence available, that the facts have been established. It also concludes that they qualify as misconduct, even though the Respondent erroneously relied on ST/SGB/2008/5; the latter was indeed issued on 11 February 2008 and was therefore not applicable at the time of the misconduct. Finally, the Tribunal, recalling the Secretary-General¡¯s discretion in disciplinary matters and considering the circumstances of the case, finds...

The Tribunal rejected the application, as the Applicant had failed to observe the (then) statutory two-month time limit to request administrative review. It considered that the Administration¡¯s response of 3 June 2009 was sufficiently clear to amount to an administrative decision open to appeal. Subsequent denials by the Administration were only confirmative decisions. Moreover, the Tribunal may not waive the time limits for management evaluation and the entry into force of new Staff Rules on 1 July 2009 did not modify these limits. Confirmative decisions: When a staff member has submitted...

UNAT considered an appeal by the Secretary-General. UNAT preliminarily held that the appeal was receivable, in accordance with Article 7(1)(a) of the UNAT RoP. UNAT noted that, although not all allegations of misconduct against Mr Masri were proved, some of the allegations were sufficiently supported by the evidence. UNAT held that the evidence established that Mr Masri met vendors at his home outside working hours and discussed UN Mission in the Democratic Republic of the Congo (MONUC) contracts, he received the benefit of interest-free loans from two vendors, and he gave assistance to a...

UNAT held that UNDT erred in failing to consider adequately the Appellant¡¯s evidence, noting she was not given the opportunity to prove her case, including allegations of discrimination, at the UNDT hearing, which included the opportunity to call evidence and to challenge the Administration¡¯s evidence. UNAT held that UNDT erred in law in allowing testimony to be given at the hearing that was neither sworn, affirmed, nor made under a promise, to tell the truth. UNAT allowed the appeal, set aside the UNDT judgment and ordered reinstatement or the award of compensation in lieu of reinstatement in...

UNAT considered an appeal by the Secretary-General limited to the question of compensation. On the issue of the Secretary-General¡¯s appeal being time-barred, as raised by Mr. Kasyanov, UNAT held that UNDT¡¯s judgment on merits for the case was not a final judgment; while it made substantive findings, it left the issue of remedy to be resolved in the future. UNAT held that the UNDT judgment on merits only became final when UNDT issued the judgment on compensation. UNAT held that, when the judgment on merits was appealed, a party could challenge the judgment on compensation and the judgment on...

UNAT noted that there was no evidence to support the Appellant¡¯s allegations that the statements of her witnesses were used in their entirety by UNDT and, even assuming that the UNDT had been in breach of its rules of procedure by making those statements, UNAT held that it had not been established that the said breach gave rise to an error in procedure liable to influence the judgment. UNAT held that the Appellant¡¯s allegation, that the staff member who recruited her gave her assurances liable to create a well-founded expectation of contract renewal, was not justified. Noting that UNDT...

UNAT noted that the language on overtime was interpreted for around 50 years in one way and then was changed and that there was some ambiguity in the provision. UNAT noted that it was still unclear on some issues surrounding whether it was proper for Staff Rules to apply differently in different duty stations and that UNDT should hear evidence on the issue, including on potential differences in application amongst departments in New York. UNAT vacated the UNDT judgment and remanded it to UNDT for further proceedings.

UNAT held that the Appellant¡¯s claims regarding the termination of his appointment and the procedures that resulted in the termination could not be received since UNAT did not have jurisdiction to review a judgment of the former Administrative Tribunal. UNAT held that UNDT had committed no error in law by considering that the participation of the civil servant and his counsel in the hearing by video conference would not have violated the Appellant's rights of defence. UNAT held that, although the letter dated November 8, 2005, contained a sentence that could imply that, if the JDC requested...

UNAT held that the reassignment decision did not breach any rule, noting that, under Staff Regulation 1. 2(c), staff members are subject to the authority of the Secretary-General and to assignment by him or her to any of the activities or offices of the UN. UNAT held that the contested decision did not contravene ST/AI/2006/3/Rev. 1, ST/SGB/172 or ST/SGB/274. UNAT held there was no error in the UNDT¡¯s decision to reject the Appellant¡¯s argument that the Organisation failed to act in good faith in its dealings with him. UNAT affirmed the UNDT judgment.

UNAT considered an appeal by the Secretary-General. UNAT held that the compensation awarded to Ms Harding for the loss of salary and other entitlements from the date of her dismissal to the date of the UNDT judgment with interest was excessive. UNAT held that it must take into account that she received compensation on or around 18 February 2008 and it could not consider the loss of earnings as actual harm after that date when the non-reinstatement was known to the claimant and the offered compensation caused by that circumstance had already been paid. UNAT held that a total of 2. 5 years¡¯ net...

UNAT considered an appeal by the Secretary-General limited to the quantum of compensation awarded. UNAT held that the termination indemnity paid to Mr Bowen should be deducted from the compensation awarded to him as an alternative to rescission. UNAT held that the compensation awarded by UNDT was excessive, noting that the decision only affected the three remaining months of his one-year term and that termination indemnity was paid. UNAT held that Mr Bowen had not produced evidence of exceptional circumstances that would justify the award of compensation equivalent to the maximum statutory...

UNAT held that the Appellant had failed to seek administrative review of the contested decision before launching an appeal with the Joint Appeals Board (JAB). UNAT held that those steps had to have been exhausted before invoking the jurisdiction of UNDT. UNAT held that UNDT erred in considering that the decision of 10 October 2008 was merely a confirmation of an earlier decision. UNAT held that the decision of 10 October 2008 was a new administrative decision for which the Applicant did not seek administrative review. UNAT noted that UNDT has no jurisdiction to waive the requirement of a prior...

UNAT considered appeals of judgment Nos. UNDT/2010/075 and UNDT/2010/076. On the issue of being barred from the UNOV premises, UNAT noted that UNDT has jurisdiction over applications filed by a staff member, former staff member or a person making claims in the name of an incapacitated or deceased staff member. However, given that the Appellant was not a staff member at the time he was barred, UNAT held that he could not complain that the decision was not in compliance with his terms of appointment or contract of employment. UNAT held that, as a holder of an SSA contract, the Appellant was no...

UNAT held that an irregularity in promotion procedures could only result in the rescission of the decision not to promote a staff member when he or she would have had a significant chance for promotion. UNAT held that there must be a link between the irregularity and the non-promotion decision. Thus, where the irregularity has no impact on the status of a staff member because he or she had no foreseeable chance for promotion, he or she is not entitled to rescission or compensation. UNAT upheld the appeal and vacated the UNDT judgment.

UNAT held that the UNDT correctly held that the recommendations did not constitute administrative decisions subject to appeal. UNAT held that the Appellant had not demonstrated any error in the decision by UNDT that his application was not receivable. UNAT dismissed the appeal and affirmed the UNDT judgment.

UNAT considered an appeal by the Secretary-General. UNAT held that Ms Bofill was not promoted as a result of the fact that the other candidates had scored higher than she had and she would not have been promoted even if the other candidates had not been promoted. UNAT held that the procedural irregularity had no impact on her non-promotion. UNAT held that the direct effect of an irregularity will only result in the rescission of the decision not to promote a staff member when he or she would have had a significant chance of promotion. UNAT held that UNDT should neither have rescinded the...

UNAT considered an appeal by the Secretary-General. UNAT held that Mr Dualeh was not promoted as a result of the fact that the other candidates had scored higher than he had and he would not have been promoted even if the other candidates had not been promoted. UNAT held that the procedural irregularity had no impact on his non-promotion. UNAT held that the direct effect of an irregularity will only result in the rescission of the decision not to promote a staff member when he or she would have had a significant chance of promotion. UNAT held that UNDT should neither have rescinded the...

Although the Administration failed to take into account the Applicant¡¯s upgraded performance appraisal, UNAT held that this would make no difference to the outcome of the appeal because a staff member who has received two consecutive ratings of partially meets performance expectations has no legitimate expectation of renewal of contract at the end of the contract period. UNAT held that the Appellant was entitled to compensation for moral damages caused by the denial of his due process rights, payable under Article 9(1)(b) of the UNAT Statute. UNAT allowed the appeal in part, modifying the UNDT...

On the issue of receivability, UNAT noted that not taking a decision was also a decision. UNAT noted that the alleged discrimination was based on a comparison between the claimant and staff members of a different category, namely international staff members. UNAT held that the general principle of equal pay for equal work does not prevent a legislative body or the Administration from establishing different treatments for different categories of workers or staff members if the distinction is made on the basis of lawful goals. UNAT held that there was no discrimination when the non-payment of...