51ÁÔÆæ

The advertisement of a vacancy announcement is an action in rem, not in personam. In the present case, the Applicant failed to prove that the failure on the part of the Respondent to advertise the total number of posts to be filled in the vacancy announcement was a material error which violated his rights. With respect to the various allegations of discrimination, favouritism, corruption, lack of transparency, forgery, gambling, impunity, and abuse of authority in the selection system at stake, the Applicant failed to prove his pleas

¡°Continuous service¡± occurs if a staff member under two or more consecutive contracts works without any break in employment. A break-in-service cannot be taken into account if the staff member continues to work and be paid. Not every break in employment will effect a discontinuity for the purpose of calculating entitlements. Based on its failures to follow its own internal procedures or its alleged mistakes, the Administration may not impose a break-in-service in order to deny a staff member benefits to which he would otherwise have been entitled. Outcome: Payment of relocation grant to the...

Two types of interim measures - with different functions, preconditions, restrictions and scope - have to be clearly distinguished. Art. 13 RoP has to be applied exclusively during the pendency of the management evaluation, whereas art. 14 RoP is appropriate only during judicial review in terms of art. 2 and 8 Statute; in short: it is either 13 or 14 ¨C never both. Orders based on art. 13 RoP become ineffective with the end of management evaluation. The present application had to be considered under art. 13 RoP since the contested decision of 12 October 2009 was released under new conditions...

There was no basis for inferring the non-renewal was due to irrelevant or improper considerations. Both the applicant and the DCD believed they were telling the truth; their different perspectives simply led them to a different understanding of what had been said. Outcome: The appeal dismissed.

All staff have a right and a duty to report to management any facts that come to their notice which may constitute professional misconduct. The UNHCR Inspector General¡¯s decision not to follow up on the allegations made by the applicant, after an investigation, is an internal measure pertaining to the organization and management of the service which is non- appealable by the staff member who made the allegations, since the alleged misconduct in no way violates the applicant¡¯s rights as derived from his status. In the case at hand, the applicant alleged that his supervisor had wrongly claimed...

The Applicant did not actively or diligently pursue his case because: he failed to give instructions to his Counsel in respect to his challenge against the non-renewal of his fixed-term appointment; he had been informed about the Status Conference by his Counsel and had failed to make an appearance or to contact the Tribunal to give reasons for his absence; his Counsel had advised that as far as she was concerned, the substantive matter in the application had been resolved; and from the documents tendered by the Respondent, the Tribunal was convinced that the substantive matter in the...

A request for an administrative review or management evaluation is mandatory with the exception of disciplinary cases. It is clear from the applicant¡¯s submissions that he was well aware that the decision to stop the payment of his salary and the decision not to renew his appointment are two distinct administrative decisions. The applicant failed to request an administrative review or management evaluation of the decision not to pay his salary. Outcome: The application is not receivable.

The Tribunal highlights the necessity of management evaluation, quoting Nwuke and Caldarone. It is not enough to merely initiate the procedure. On the contrary, the result of Management evaluation has to be awaited generally, before an application may be submitted to the Tribunal. It is not within the Applicant's discretion to evade management evaluation which is considered useless. Outcome: Application was dismissed.

The first management evaluation decision dealt with the issue of the promise made to the Applicant and granted him compensation of three months salary in lieu of further performance of his contract of employment. That decision itself as mentioned earlier does not prevent the Applicant from filing an appeal in respect of the same subject matter that is the non renewal of his contract. Whereas Management has considered the express promise to the Applicant and decided that monetary compensation was sufficient remedy, the Tribunal recalls that it found the ¡°circumstances surrounding the non...

UNDT preliminarily held that only facts occurred from early 2005 to 7 November 2007 were to be taken into consideration with regard to the allegations of harassment leveled by the Applicant. Consequently, reported actions and decisions dating back to 2004, in particular the non-promotion of the Applicant in 2004, were excluded from the present Judgment. Regarding the remainder of the application, UNDT held that the Applicant failed to provide sufficient evidence to substantiate his allegations that he was subjected to harassment by the Organization and that the latter bore responsibility for...

As the Applicants did not respond at all to the Tribunal¡¯s requests, they therefore must be deemed to have abandoned the legal proceedings they instituted.Outcome: Application was dismissed.

As the Applicants did not respond at all to the Tribunal¡¯s requests, they therefore must be deemed to have abandoned the legal proceedings they instituted.Outcome: Application was dismissed.

One of the elements that an application for suspension of action must show is that the contested decision ¡°appears prima facie to be unlawful¡±, i.e. that there is a reasonably arguable case that the contested decision is unlawful. A merely reasonable (hence legitimate in ordinary parlance) expectation of a particular outcome is not the same as a legitimate expectation that gives rise to any legal rights, and will be insufficient to establish reasonably arguable unlawfulness. Outcome: The Judge held that there is an insufficient evidentiary basis for concluding even on a prima facie level that...

The Tribunal limited its review to the time-bar of the request for review in July 2009. Since former Staff Rules were applicable to this case, the Morsy judgment and the broader definition of "exceptional cases" with reference to art. 8.3 UNDT Statute, art. 7.5 UNDT RoP had to remain out of consideration. The question whether UNDT has jurisdiction to waive time limits under the former system of internal justice - denied in Costa - could be left open, because no "exceptional circumstances" could be accepted. It was the Applicant's free will to await the outcome of the investigations, instead¡¤of...

Since former Staff Rules were applicable to this case, the Tribunal pointed out that the application was time-barred under Staff Rule 111.2 (a).Outcome: Application was dismissed.

Conclusion on the duration of the suspension: ¡°the length of the suspension is to be decided by the Tribunal depending on the nature and circumstances of the case and this discretion of the Tribunal cannot and should not be subject to any form of control by the administration¡±. The decision ordered on 1 September 2009 that the suspension of the contested decision to terminate the employment of the Applicant on 3 September 2009 would remain in force until the final determination of the appeal should be read as it appears and that the Applicant should be paid half his salary from the date of the...

Motion for extension of time was refused. Abuse of process of the Tribunal.

The Tribunal limited its review to the time-bar of the statement of appeal to the JAB in Februaiy 2009. Since fonner Staff Rules were applicable to this case, the Morsy judgment and the broader definition of "exceptional cases" with reference to art. 8.3 UNDT Statute, art. 7.5 UNDT RoP had to remain out of consideration. Neither the lack of knowledge of the English language nor ignorance of law could be accepted as "exceptional circumstances".Outcome: Application was dismissed.

Pursuant to Article 10.1 of the Rules of Procedure, a respondent that fails to file its reply on time is barred from taking part in the proceedings, except with the permission of the Dispute Tribunal. In this particular case, to attain a fair and expeditious disposal of the case and to do justice to the parties it was necessary for the respondent to file a reply. Outcome: The judge exercised her discretion pursuant to Articles 10.1 and 19 of the Rules of Procedure to grant leave to the respondent to take part in the proceedings and to file its reply out of time.

The application was not receivable under article 13 of the UNDT Rules of Procedure because at the time the application was filed, there was no management evaluation pending. It was only on 21 October 2009 that the Tribunal received a copy of the request for management evaluation of the decision of 5 October 2009. The application was not receivable under article 14 of the UNDT Rules of Procedure because the administrative decision dated 5 October 2009 to fill the post related to an appointment and could not be the subject of interim relief in view of the exception contained in article 14...