51ÁÔÆæ

UNAT considered an appeal by the Secretary-General appealed against the UNDT judgment to seek a clarification of the ratio of the judgment with regard to the way in which UNDT had applied the principle of preponderance of evidence and ignored the Secretary-General¡¯s submissions on the basis of ¡°minimal showing¡± that the Applicant had been fairly considered. UNAT held that it would not examine the legal submissions in the appeal since the case had been decided in favour of the Secretary-General. UNAT held that none of the grounds of appeal pleaded was valid under Article 2.1 of the UNAT Statute...

UNAT preliminarily held that the appeal should be regarded as timely because the initial submission in Arabic was received within the prescribed time limit. UNAT noted that the fact-finding committee acted in an objective and responsible manner in conducting its investigation and assessing the charges. UNAT noted that there was clear and convincing evidence supporting a finding of misconduct, which was not successfully rebutted by the Appellant, which alone was a sufficient basis for the impugned decision. Given the established misconduct and the seriousness of the incident, UNAT held that it...

UNAT held that her appointment was terminated due to a lack of funding; several of her colleagues also had their fixed-term appointments terminated for the same reason at the same time. UNAT held that the fact that the Appellant may have complained about her working conditions or cooperated in any subsequent preliminary investigation into possible harassment, did not on its face exposes her to the termination. UNAT held that there was no reversible error on part of UNDT. UNAT dismissed the appeal and affirmed the UNDT judgment.

UNAT considered an appeal by the Secretary-General. UNAT held that there was no reason to re-examine the judgments of the former Administrative Tribunal in judgment No. 1047, Helke (2002) and judgment No. 1122, Lopes Braga (2003). UNAT held that the award of compensation for non-pecuniary damage did not amount to an award of punitive or exemplary damages designed to punish the Organisation and deter future wrongdoing. UNAT held that UNDT did not err in finding that the staff member suffered stress based on his submission. UNAT held that UNDT had committed no error in awarding compensation for...

UNAT held that the Appellant was caught in the transition between the old and new internal justice systems. UNAT noted that the Appellant had requested an extension of the time limit to file an application with the former Administrative Tribunal and that it was questionable if anyone could have granted an extension since the new UNDT had not officially started and the former Administrative Tribunal was winding down. UNAT, therefore, held that the case should be remanded to UNDT for consideration on merits. UNAT upheld the appeal, vacated the UNDT judgment, and remanded the case to UNDT for a...

UNAT considered an appeal by Secretary-General. The Secretary-General contended that UNDT erred by failing to recognize that the second contract by which Mr. Castelli¡¯s appointment was extended beyond a year was invalid because it had not been submitted for review by a central review body. UNAT held that, unless it is fake or fraudulent, a staff member¡¯s appointment contract gives rise to entitlements upon the signing and acceptance by the staff member of their letter of appointment. UNAT held that this is true even where the administration improperly handled the recruitment process. UNAT held...

UNAT preliminarily held that the appeal was time-barred. UNAT held that even if the appeal was not time-barred, it would be dismissed on merits. UNAT was satisfied that the established facts showed that the Appellant engaged in misconduct warranting a disciplinary measure. UNAT held that the imposed sanction was proportionate to the offence. UNAT further held that the Appellant did not demonstrate any violation of her due process rights. UNAT dismissed the appeal and affirmed the impugned decision to demote the Appellant.

The Administration paid the compensation ordered by UNDT and the Secretary-General subsequently filed his cross-appeal challenging UNDT¡¯s decision to award compensation. UNAT held that, by paying the compensation ordered, the Secretary-General accepted the UNDT judgment and that his cross-appeal was, therefore, moot.

UNAT held, noting that the Appellant relied on the UNDT Rosca jurisprudence (judgment No. UNDT/2009/052) in her request for UNDT to waive the time limits for management evaluation, that the plain language of Article 8. 3 of the UNDT Statute could not be disregarded. UNAT approved judgment No. UNDT/2009/051 as the law on this issue and disapproved the interpretation of UNDT in Rosca. UNAT dismissed the appeal and affirmed the UNDT judgment.

UNAT noted that the Appellants did not refer to any article of the Regulations that provides that the full retirement benefit may be restored after a participant opts to commute a portion of the retirement benefit into a lump sum. UNAT held that the Appellants were bound by their decision to accept one-third of their pension as a lump sum and a reduced pension. UNAT held that the Appellant¡¯s decision could not simply be reversed. UNAT rejected the argument that the Appellants had been discriminated against and that their basic fundamental rights concerning equity, fairness, and justice under...

Harassment allegations: People are entitled to their opinions, even unflattering or wrong-headed, about colleagues. It is only when those opinions are conveyed in ways that constitute harassment or abuse that they become problematical in a legal sense. A genuine opinion about a colleague¡¯s competence that happens to be adverse is not susceptible of criticism. While not placing the delays of the applicant in making complaints about the matters to which he has referred on the scales against him, those delays have made it much more difficult for him to prove they occurred quite as he alleges...

When attempting to establish a pattern of retaliation with regard to past decisions, the question is one of the relevance of those decisions, not receivability. Whether or not the SGB on retaliation was in force at the time an act or decision took place, the act or decision can still be considered retaliatory and constitute serious misconduct. The burden on the respondent of proving ¡°by clear and convincing evidence¡± in respect of decisions made before the provision came into effect that ¡°it would have taken the same action absent the protected activity¡± (ST/SGB/2005/21) applies to decisions...

The applicant, a P-3 level staff member, applied for the P-4 post of Chief of her Unit. She was not selected. It later transpired that the applicant had initially received the highest score, but her supervisors, who participated in the selection, increased the successful candidate¡¯s score. This resulted in the successful candidate being ranked higher than the applicant. The Secretary-General agreed with the finding of the Joint Appeals Board that the applicant¡¯s rights were violated and awarded her compensation in the amount of three months¡¯ salary. The applicant appealed, seeking additional...

The Organization cannot with propriety resort to reliance on particular provisions in its Rules and Regulations which were arguably inconsistent with a representation merely because the Rules and Regulations are referred to as a whole in the Letter of Appointment. Not only was the respondent in breach of its contract with the applicant by deciding arbitrarily and capriciously not to renew his contract (as had been admitted) but it was in breach of the contract by not renewing it in accordance with the undertaking to do so if the applicant¡¯s performance was satisfactory. The applicant¡¯s...

The panel report did not constitute a breach of the applicant¡¯s contractual rights and therefore no compensation is warranted. Such a panel is not a court and while it must be fair, it must be allowed to do its reasonable best to ascertain the facts as it thinks is right. Even though the audit was seriously flawed in significant respects, the decision as to its content is not subject to appeal to the Tribunal. Constructive dismissal occurs when the employer engages in a scheme of action which, in effect makes it so difficult for the employee to continue with his or her work, that the latter...

The statement of the Executive Director is not an administrative decision that can be contested before UNDT in accordance with article 2 of its Statute. It is not an administrative decision within the meaning of the ruling in Andronov by the former UNAT. Indeed, the applicant did not contest the non-renewal of his appointment but a statement by the Executive Director. This statement is a simple opinion, not an administrative decision that could have affected the applicant¡¯s terms of appointment. By the time the statement was published, the applicant was already aware of the non-renewal of his...

The recommendations made by the Chief, SSS, are not administrative decisions that can be contested before UNDT in accordance with article 2 of its Statute. They are not administrative decisions within the ruling in Andronov by the former UNAT and the recent jurisprudence of the UNDT. The contested recommendations are preliminary steps in the selection process in accordance with ST/AI/1999/8. The applicant had the right to contest his non-selection for a post but not a preliminary step in such process which is not an administrative decision. Outcome: The application was rejected.

[UNDT/GVA/2009/63 ]Contrary to what he contends, the applicant was not prevented from undertaking the separation procedures before the separation memorandum was issued. He was notified of the non-renewal of his contract nearly two months before his effective separation. Hence, the argument that the late issuance of the separation memorandum created such a situation that he was bound to work beyond the date of expiration of his appointment does not stand. The Organization offered him a reasonable chance to finalize the different separation formalities, both during the last two months of service...

[Case UNDT/GVA/2009/33] The APPC omission to inform the applicant that his supervisor had sent a letter to it concerning his employment and to share its content with him does not constitute an administrative decision within the meaning of article 2.1 (a) of the Tribunal¡¯s Statute. It thus falls out of the jurisdiction ratione materiae of the UNDT. The decision not to renew the applicant¡¯s contract was already taken at that point. Hence, the letter to the APPC was merely internal communication; at the highest, it could be regarded as one step in a complexe procedure. [Case UNDT/GVA/2009/40] The...

Outcome: On the balance of probabilities it appears that the applicant was unable to perform his duties at an adequate level and the most significant cause of this situation was not lack of training or assistance, but his own attitude. In fairness to the applicant, more should have been done to help his transition from his outside employment to the requirements of his new employment. In light of the rebuttal process being made available to the applicant, he did not suffer any actual detriment from the lack of an ePAS and had the benefit of a rebuttal process. The application is dismissed in...