51ÁÔÆæ

UNAT considered an appeal by the Secretary-General. UNAT held that Ms. Caucci¡¯s situation differed from the UNDT Judgment in Tran Nguyen (UNDT/2015/002) and therefore it was erroneous for the UNDT to apply such jurisprudence to find that Ms. Caucci had a general service lien with MINUSMA during and after her service with DPO. UNAT held that the rights of staff members on secondment under the Inter-Organization Agreement concerning Transfer, Secondment or Loan of Staff among the Organizations applying the United Nations Common System of Salaries and Allowance, which was at issue in Tran Nguyen...

Oral hearing: Mr. Izurieta Canova applied in terms of Article 18(1) of the Rules of Procedure of the UNAT for an oral hearing to be held in this case. As this is a straightforward matter, not attended by any factual or legal complexity, UNAT did not consider that a hearing would assist in the expeditious and fair disposal of the case. For that reason, the application for an oral hearing was refused.

The question on appeal was whether the impugned recruitment cancellation decision by the Secretary-General of UNCTAD was a lawful and reasonable exercise of discretion?

The motive for the...

UNAT held that the undisputed breach of confidentiality in the selection process provided rational grounds for the cancellation decision. UNAT held that the fact that the Appellant had access to information about his test score and that he was perhaps seeking to influence the decision through the hiring manager, rendered the selection exercise problematic and unsatisfactory. UNAT held that the perception was unavoidably created that the Appellant was inappropriately favoured with access to information about a decision concerning his interests and in respect of which he enjoyed no authority...

Request for oral hearing: Given Mr. Toson¡¯s arguments wherein he wishes to contest evidence before the Dispute Tribunal in a manner that would be essentially a rehearing of the evidence, UNAT held that an oral hearing should not be granted and would not assist in expeditiously and fairly resolving the issues in this appeal. On the merits, UNAT held that the Dispute Tribunal applied the appropriate standard of review. It reviewed the applicable policy of the UNFPA for selection processes (the PPM), reviewed the evidence, and determined that the applicable procedures were followed in the...

Mr. Krioutchkov appealed. UNAT found that the UNDT correctly held that the timing of the written test was justifiable in that holding the test at a set hour worldwide was a rational way of avoiding leaks of the test materials. The inconvenience to the Administration of accommodating different test schedules outweighed the inconvenience of Mr. Krioutchkov being required to adjust his schedule. The scheduling decision was accordingly reasonable. Moreover, having refused to participate in the written examination, Mr. Krioutchkov was estopped from challenging the non-selection decision. UNAT found...

UNAT held that the Appellant¡¯s claim, that a final decision on her 2013 request for post reclassification was only issued in 2019, could not be considered as it was raised for the first time at the appellate level. UNAT held that UNRWA DT correctly found that the 12 December 2014 e-mail which informed her that all classifications were on hold constituted an administrative decision because it rejected her request for immediate reclassification. UNAT held that to allow the Appellant¡¯s argument that the postponement or freezing of requests for reclassification does not constitute an...

Have the facts on which the disciplinary measure was based been established according to the applicable standard? It was alleged that during the Cox¡¯s Bazar all-staff retreat in February 2020, the Applicant: a. Grabbed V01 from behind her and held her tight with his hands around her waist to the front of her body. He rested his head on her back while he pulled her back so that the front of his body rested against the back of her body. V01 did not consent to him touching her; and b. Hugged V02 from the front side of her body with his body pressed against her body. He hugged her with both his...

The Tribunal found that the Applicant had performance shortcomings as evidenced by the 2016 to 2019 ePADs and by the fact that he failed to initiate the 2020 ePAD.

The Applicant was aware or could reasonably be expected to have been aware of the required performance standards.

The Applicant was given a fair opportunity to meet the required standard and the Administration did not err by not availing him more opportunities to improve considering the totality of circumstances in this case.

The totality of circumstances supported a finding that the termination of the Applicant's appointment was...

UNAT considered an appeal by Mr. Zaqqout. As regards an oral hearing, UNAT found that since the application was dismissed on grounds of receivability, Mr. Zaqqout¡¯s arguments were not persuasive enough so as to justify an oral hearing at this stage. Some of the issues raised in the appeal were connected to the merits of Mr. Zaqqout¡¯s application and did not meet the threshold of the receivability assessment. Since Mr. Zaqqout was made aware at the very early stage of the proceedings of the UNRWA¡¯s allegation that he had been notified of the impugned decision on 30 December 2018, he should have...

Preliminary matter: the use of prior conduct evidence The Applicant argues that his due process rights were violated during the investigation, particularly by the irregular use of prior conduct evidence which allegedly created a bias against him and masked the lack of clear and convincing evidence in relation to the sexual harassment complaint. The Tribunal considers it is proper and not unlawful for the Organization to consider the staff member¡¯s background and behaviour towards others in the context of a disciplinary case, as long as it is relevant, uncontroversial and probative. UNAT...

UNAT considered an appeal by Ms. Matahen. UNAT held that her appeal was defective in that it failed to identify any of the five grounds set out in Article 2(1) of the Statute of the Appeals Tribunal as forming the legal basis of her appeal. With regard to Ms. Matahen¡¯s written request for an extension of time to file an application, UNAT held that the UNRWA DT did not err in finding that her allegation that she had only found out on 17 August 2020 that another similar request for Early Voluntary Retirement had been granted by UNRWA, did not constitute an exceptional circumstance, namely, a...

The Tribunal held that the Applicant had proven that the process of restructuring of the Programme Management Unit leading to the abolition of his post and hence the non-renewal of his contract was arbitrary, capricious, motivated by prejudice, procedurally irregular and an error in law.By its failure to follow the Regulations and Rules for the restructuring and abolition of the Finance Specialist position, the Tribunal agreed with the Applicant that he was singled out among the three international staff members, to pave way for national staff without a legitimate objective criterion, and in...

The Applicant contested the imposition of disciplinary and non-disciplinary measures following the completion of a disciplinary process thus, she was not required to request management evaluation as per staff rule 11.2(b). In accordance with art. 8.1(d)(ii), her application should have been submitted directly to the UNDT within 90 calendar days of her receipt of the administrative decision. The Applicant received the sanction letter/contested decision on 1 April 2022, which meant that she had to file her UNDT application on or before 30 June 2022 to be within the prescribed time limits. She...

UNAT considered an appeal by Ms. Al Smadi. UNAT found the UNRWA DT erred in its finding that a letter Ms. Al Smadi received to her reclassification request on 17 August 2017 was an administrative decision. The only interpretation of this letter was that it was not a decision that had any legal effect or consequences on Ms. Al Smadi¡¯s terms and conditions of appointment. It was simply a notification that Ms. Al Smadi¡¯s reclassification request was still being reviewed but that the review had not been ¡°finalized¡± or decided upon as of that date. The letter she received on 29 July 2019 was, on...

The Tribunal held that the two applications filed concerned the same subject-matter and the same cause of action between the same parties. There was in substance one administrative decision refusing to renew a fixed-term appointment and the first application was lis pendens when the second application was made. The Tribunal further held that the Applicant had acknowledged the same in his motion to merge the two cases and orally during a case management discussion held on 6 July 2022. The Tribunal determined that there was no case for merger and that the application was not receivable under the...

UNAT considered an appeal by Mr. Loubani. UNAT held that while a preliminary assessment [regarding potential evidence by witnesses nominated by Mr. Loubani to be interviewed] should have been made by the investigators, this was done by UNRWA DT, and the evidence found to be so inadequate as to be safely ignored.

Mr. Loubani had an opportunity to present this evidence before UNRWA DT, so that its proper assessment meant that his due process right was allowed, albeit belatedly. It would have made no difference to the outcome had the investigators done so. The investigators would have reached...

The Tribunal noted that the Applicant did not dispute the fact that he did not request management evaluation within the 60-day statutory period of staff rule 11.2(c). He did not dispute the fact that while the 60-day period commenced on 25 January 2021, he mailed his request for management evaluation on 16 April 2021, more than three weeks after the expiration of the statutory deadline.

Accordingly, since the Applicant did not seek management evaluation in a timely manner, his application was not receivable ratione materiae. Consequently, the application was dismissed as not receivable.

The Tribunal observed that it was not disputed that the impugned decision related to facts anterior to the Applicant¡¯s appointment. Also not in dispute was the fact that no disciplinary process was initiated, and no disciplinary measure was taken against the Applicant. It followed that the impugned decision was not a disciplinary measure but was an administrative decision affecting the Applicant¡¯s contract or terms of appointment under staff rule 11.2(a). Accordingly, the Applicant should have sought management evaluation before filing the application, which he did not do. The Tribunal further...

The UNAT noted that the simple issue arising in this appeal was whether it was appropriate and correct for the judge to have proceeded with the application for review of the contested decisions while the motion for recusal was pending. The UNAT held that the straightforward answer is that it was not.

An application for recusal can be brought at any time in the proceedings and is usually a difficult strategic choice for the party making the challenge. Such an application is made, typically, at the moment the party loses confidence in the judge. Its timing will depend on the circumstances. The...

UNAT held that Mr. Saleh¡¯s complaints of procedural unfairness were unsustainable for the reasons stated by the UNDT and he had not discharged the burden incumbent upon him to satisfy the Appeals Tribunal that the UNDT Judgment was defective in that regard. He merely repeated the untenable submissions he made before the UNDT.

UNAT took note that Mr. Saleh admitted to two counts of fraud. UNAT then held that Mr. Saleh¡¯s conduct unquestionably damaged the trust relationship and the UNDT was correct to defer to the reasonable conclusion of the Administration that the damage was irreparable and...