51ÁÔÆæ

The Tribunal considered that the Administration had erred in finding that the Applicant¡¯s complaint did not provide sufficient grounds to warrant a formal fact-finding investigation. It awarded him USD10,000 for the moral injury he had suffered because of the way in which the matter was dealt with by the Administration. Receivability ratione materiae: The Tribunal has jurisdiction to review the Administration¡¯s actions and omissions following a request for investigation submitted pursuant to ST/SGB/2008/5. Scope of ST/SGB/2008/5: Disagreements on work performance or on other work-related...

The issues before the Tribunal were whether the Applicant had a legal expectancy of renewal; whether the abolition of the Applicant¡¯s post was a valid exercise of the Organization¡¯s discretion; and whether the Applicant was fully and fairly considered for the newly created posts following a restructuring within the Organization. Outcome: The application failed and was dismissed.

Review of the motivations behind the contested decision: Circumstances intervening after the contested decision was taken may not be considered as showing the motives put forward by the Administration to be false. Even if it was proved that an evaluation of the Applicant¡¯s performance was conducted after his separation, this is not pertinent in examining the decision not to renew his contract, inasmuch as the motive provided therefor was not unsatisfactory performance. Scope of review by the Tribunal: It is not for the Tribunal to determine, when the Administration decides to close one of its...

The Tribunal considers that the Administration did not err in finding that her claims had been adequately addressed and that she had not suffered harassment. However, it failed in its duty to ensure a work environment that protects the physical and psychological integrity of staff. It awards the Applicant two months¡¯ net base salary for moral damage plus half a month for excessive delay in the appeal process. Duty to take prompt action to deal with harassment claims: At the material time, the Administration was bound by a duty to take prompt action and address harassment claims. In the instant...

The Tribunal observed that the Applicant conceded, in his closing submission, that the distribution and storage of pornographic material using the UNDP equipment constituted misconduct. Therefore, the Tribunal considered the characterization of this charge settled and did not go on to examine it. On due process, the Tribunal found that the investigation was hasty and afforded the; Applicant little opportunity to prepare for his case. On proportionality, the Tribunal held that the lack of due process shown on the part of the Respondent while investigating the Applicant must necessarily count to...

Terms of settlement have been agreed between the parties. They have confirmed that the said terms have been fully executed and that there are no outstanding claims arising from the present case.

The Tribunal held that since summary dismissal/termination may have been the possible outcome at the end of the disciplinary process, the Respondent had to establish by clear and convincing evidence that the daily casual worker (Mary) was transferred to MovCon as a result of the alleged sexual relationship between her and the Applicant. The Tribunal concluded that the facts upon which the disciplinary measure was based were not established and that the facts which were established did not legally amount to misconduct under the Regulations and Rules of the United Nations. Consequently, the...

Judicial review in disciplinary matters: In reviewing disciplinary matters, where the facts are established and undisputed, the Tribunal is to examine whether the facts in question constitute misconduct and whether the sanction imposed is proportionate to the misconduct. In this regard, the Tribunal may not intervene in the exercise of the Secretary-General¡¯s discretionary authority, except in cases of obvious absurdity or flagrant arbitrariness.

Administrative decision: Measures taken on the basis of ST/SGB/2008/5 must not be considered as preliminary decisions that cannot be contested. The absence of a response to an Applicant¡¯s specific requests may amount to an implicit administrative decision, if it has direct legal consequences on the Applicant¡¯s rights as a staff member.

The UNDT found that the Respondent had failed to fully comply with his obligations under ST/SGB/2008/5 with respect to the Applicant¡¯s complaints and that the Respondent had violated the Applicant¡¯s rights by not promptly providing her with a summary of findings and conclusions and by not investigating allegations of misconduct that impacted on her. Action to be taken under sec 5.14 of ST/SGB/2008/5: Depending on the circumstances of the case, section 5.14 may have two elements that must be satisfied by the Organization. The first component of section 5.14 is the review and assessment of the...