51ÁÔÆæ

The Tribunal finds that the selection process was flawed but that the Applicant has not established a causal link between the irregularity and the harm he claims to have suffered. Assessing the legality of the contested decision: When the Administration decides to use a specific procedure, it is bound to fully comply with this procedure. Thus, if the Administration had determined that applications for a vacant position would be assessed by a panel of five members, all five panel members should have actually participated in the assessment, and the failure 51ÁÔÆæ the procedure resulted...

The Tribunal finds that the selection process was not flawed. Judicial review: In reviewing selection decisions, it is not for the Tribunal to substitute its own assessment for that of the selection panel, except where errors of fact or manifest errors in the assessment of the facts have been committed.Outcome: Application rejected on the merits

The Tribunal ruled that the Applicant, as a 15-day candidate, had been given priority consideration, in compliance with section 7.1 of ST/AI/2006/3. It concluded that the Applicant had been considered first than 30-day candidates and found unsuitable for the post before any meaningful consideration of 30-day candidates took place. Priority consideration as per section 7.1 of ST/AI/2006/3: This provision, as consistently interpreted by the Dispute and the Appeals Tribunals, requires that 15-day and 30-day candidates be considered separately; 15-day candidates must be considered first and, if...

The Secretary-General appealed the UNDT order. UNAT held that, where the implementation of an administrative decision is imminent, through no fault or delay on the part of the staff member, and takes place before the five days provided for under Article 13 of UNDT RoP have elapsed, and where UNDT is not in a position to make a decision under Article 2. 2 of the UNDT Statute, i. e. because it requires further information or time to reflect on the matter, it must have the discretion to grant a suspension of action for these five days. To find otherwise would render Article 2. 2 of the UNDT...

The Tribunal took note of the fact that the management evaluation was completed on 29 September 2011, thus rendering moot the application for suspension of action filed on 28 September 2011. The application for suspension of action was thus rejected.

UNDT ordered the Respondent to (i) remove adverse material from the Organization¡¯s files, (ii) send to the Member States that received the summary a copy of the Judgment and explanatory statement, (iii) pay monetary compensation in the amount of USD60,000 for non-pecuniary harm, including emotional distress and damage caused to the Applicant¡¯s reputation. The UNDT rejected the Applicant¡¯s claims for direct economic loss.

The UNDT found that General Assembly resolution 63/253, by which the Assembly adopted the statutes of the UNDT and the UNAT, imposed limitations on their jurisdiction. Interns presently do not have access to the UNDT and the UNAT. Having found that it does not have jurisdiction to consider the application, the UNDT dismissed it without consideration of its merits.

Performance evaluation: The Respondent followed the UNFPA Personnel Policy guidelines for the rebuttal process by having a review of the Applicant¡¯s appraisal by the Management Review Group (MRG) which conducted at least two reviews. However, since the second review was completed with insufficient time for the Applicant to submit a written statement of agreement to the Head of Office, wait for a response and then submit a written rebuttal, if necessary, the Respondent breached UNFPA policy requirements and the right to due process. The Applicant had a mandated right as a dissatisfied staff...

UNDT held that the application did not meet the test as set out in Article 2.2 of the UNDT Statute, specifically noting that it failed to meet the requirements for irreparable damage and particular urgency. UNDT therefore considered it unnecessary to determine the issue of prima facie unlawfulness.

It is clear from the reimbursable loan agreement that UNAMID and WFP agreed on the Applicant¡¯s loan at the P-5 level. He thus had no reason to believe that he would be paid at the D-1 level or that he would be promoted to that level by UNAMID. Although the Applicant was informed of his selection for the Deputy Director post, he never received a letter of appointment from UNAMID which could have created contractual rights in his favour. The Applicant failed to demonstrate that UNAMID made any promise to him or committed any fault for which it could be held responsible.

The Tribunal noted that in reviewing disciplinary cases, its role is to examine: (i) whether the facts on which the disciplinary measure was based have been established; (ii) whether the established facts legally amount to misconduct; (iii) the proportionality of the disciplinary measure; and (iv) whether there was a substantive or procedural irregularity. Further, the Tribunal noted that in reviewing disciplinary cases, it must scrutinize the facts of the investigation, the nature of the charges, the response of the staff member, oral testimony if available and draw its own conclusions. The...

The Tribunal noted that in reviewing disciplinary cases, its role is to examine: (i) whether the facts on which the disciplinary measure was based have been established; (ii) whether the established facts legally amount to misconduct; (iii) the proportionality of the disciplinary measure; and (iv) whether there was a substantive or procedural irregularity. Further, the Tribunal noted that in reviewing disciplinary cases, it must scrutinize the facts of the investigation, the nature of the charges, the response of the staff member, oral testimony if available and draw its own conclusions. The...

The Tribunal found that the intervention of the head of department in the appointment of the selection panel constituted a procedural flaw in the selection process. Since the Applicant had not requested the rescission of the contested decision but only compensation, the Tribunal examined whether such irregularity had caused any damage to the Applicant. It found that the latter, who had been proposed for the post, had failed to establish any causal link between the procedural flaw in the selection process and his non-selection. Selection panel: Although ST/AI/2006/3/Rev.1 is silent on the...

The Tribunal found that the provisions of ST/AI/1998/9 did not allow the reclassification of the Applicant¡¯s post and concluded accordingly that the Applicant had no grounds for contesting the refusal to reclassify his post. The Tribunal further found that the Administration¡¯s delays in notifying the Applicant of the reclassification decision, even though the decision was well-founded, had caused him to suffer moral damage, for which the Tribunal awarded EUR2,000.

The Tribunal found that the Administration had fulfilled its obligation, stressing that the results in the tests indicated that the Applicant was less qualified for the posts than the other candidates. Receivability ratione materiae: Although the contested decision was made after the Applicant had ceased to be a staff member, it is directly linked to her separation and corresponds to the criteria set in the relevant jurisprudence of an ¡°administrative decision¡± subject to appeal. Priority consideration: A promise of priority consideration must be understood as giving priority only over other...

UNDT held that the decision not to select the Applicant was appropriately reviewed by the JAB panel and therefore proper. UNDT held that the requirement of relevant experience was appropriate and necessary for this particular vacancy and that the selection process was conducted in a proper manner. UNDT held that the JAB panel addressed the appropriate legal principles and that, in applying those princples to the facts of the case, it asked the correct questions and considered the appropriate authorities. UNDT held that the Applicant failed to satisfy it that there was any material irregularity...

At this stage, the Applicant¡¯s allegations are assertions that are not adequately supported by evidence. Outcome: Dismissal of the application.

The Tribunal found that the decision to reassign the Applicant was an unlawful exercise or the Administration¡¯s discretion because, although the decision was based on her alleged poor performance, the Applicant¡¯s performance had never been evaluated in accordance with the established procedures. The subsequent decision not to renew her contract was flawed for the same reason. Whilst the official reason given was that the Applicant did not accept the post offered or apply for another one, the Tribunal found that the non-renewal decision was motivated by the Applicant¡¯s supervisors¡¯ assessment...

The Tribunal found that the application, in so far as it impugned a decision that had been rescinded, had to be rejected as irreceivable. Concerning the Applicant¡¯s claim for compensation for moral injury allegedly arising from the contested decision, the Tribunal considered that the causal effect between the Applicant¡¯s troubles and the contested decision had not been demonstrated by the medical certificates provided and thus rejected the claim, without ruling on its receivability. The Tribunal further rejected the Respondent¡¯s request for award of costs against the Applicant because it did...

The decision to terminate the Applicant¡¯s contract was taken at the Mission level, without the delegated authority required by ST/AI/234 and was therefore unlawful. The post facto approval of the decision by the ASG/OHRM does not cure the unlawfulness. The Secretary-General¡¯s action of entering into a contract of employment with the Applicant for the reason only of securing termination indemnities for the Applicant does not appear to be supported by any Staff Regulation, Staff Rules or any known principles of an employment contract. The termination of the Applicant¡¯s appointment as a result of...