51ÁÔÆæ

The UNDT found that the Administration¡¯s failure to timey conclude its investigation was an act of omission and an implied administrative decision receivable by the UNDT. The personal crisis of one investigator did not account for the entire three years nor justify the Administration¡¯s failure to take corrective measures to control the delay. The excessive delay breached fairness and the Applicant¡¯s due process rights. Further, the Administrations¡¯ failure to respond to the Applicant¡¯s multiple reasonable follow up queries spanning three years constituted a breach of duty owed the Applicant...

The contested decision was imposed on the Applicant after finding that there was clear and convincing evidence that the Applicant threatened to kill other staff members in the Afghanistan Country Office. The crux of the Applicant¡¯s case was that the facts were not established through clear and convincing evidence as the witnesses present during the alleged threats provided inconsistent testimonies, and the evidence was not properly collected and, consequently, was unreliable. Whether the investigation was vitiated by procedural flaws Having reviewed the whole investigation file, which was not...

The Tribunal examined the alleged procedural errors in the appointment of the investigation panel and the conduct of its investigation, before turning to examine the alleged errors in the making of the contested decision itself. Appointment of the panel The Tribunal found that the panel, appointed by a responsible official (the then Executive Director OAJ) who had a conflict of interest, was not constituted in accordance with sec. 5.14 of ST/SGB/2008/5. It was illegal and void ab initio. A decision maker cannot, knowing the basis of a request for recusal, take important steps in a process such...

While the Applicant was not required to request management evaluation before filing this application, she was, however, required to file her application with UNDT within; 90 calendar days of receiving the contested decision. The Applicant¡¯s 25 March 2018 motion for waiver failed 51ÁÔÆæ the stringent requirement pronounced by the Appeal¡¯s Tribunal in Thiam because it was not filed prior to the filing of her substantive application but more than five months after the fact. Additionally, the Applicant¡¯s passing mention of receivability in her 17 October 2017 application cannot be...

The failure to re-interview the subject of an investigation to confront him/her with additional gathered evidence constitutes a breach of his/her due process rights: the contested disciplinary decision is unlawful since it was taken based on the evidence and recommendations of the SIU/UNAMID investigation reports issued in January 2013 and December 2013, even though the SIU/UNAMID continued the investigation and gathered additional evidence from two witnesses in January 2015 and April 2015. The new evidence was never brought to the attention of the Applicant or of the decision-maker before...

The decision not to renew the Applicant¡¯s fixed-term appointment

The Tribunal found that there were no good reasons to depart from the principle of renewal pending completion of a rebuttal process. The Tribunal found that the Applicant¡¯s performance was not fairly evaluated, notably during the third and fourth evaluation cycles. Thus, these performance appraisals could not be relied upon to justify a decision not to renew the Applicant¡¯s fixed-term appointment. As a consequence, the Tribunal found that the third reason for not renewing the Applicant¡¯s fixed-term appointment, namely that she...

The Tribunal examined the alleged procedural errors in the appointment of the investigation panel and the conduct of its investigation, before turning to examine the alleged errors in the making of the contested decision itself.; Appointment of the panel; The Tribunal found that the panel, appointed by a responsible official (the then Executive Director OAJ) who had a conflict of interest, was not constituted in accordance with sec. 5.14 of ST/SGB/2008/5. It was illegal and void ab initio. A decision maker cannot, knowing the basis of a request for recusal, take important steps in a process...

The Tribunal is of the view that in light of the oral evidence presented to the factfinding panel by the FRO and SRO, instead of them following the recommendations of the second rebuttal panel to initiate and provide real support to the Applicant at every stage of the process, they continued their negative behavior towards the Applicant and they did not temporarily rotate/assign him to another position in a different Unit for the following six months (up to one year starting from 19 March 2014), and to allow for the continuation of his third probationary year. The Tribunal concludes that the...

The established facts considered in their entirety amount to misconduct in the form of sexual harassment. Sexual harassment can manifest itself in different forms, its determination is fact specific, and its occurrence is not limited to work places during work hours. The Applicant¡¯s conduct amounts to sexual harassment in violation of staff rule 1.2(f). A plain reading of the Applicant¡¯s Facebook messages shows their sexual nature. Moreover, in the Tribunal¡¯s view, the Applicant was put on notice that his sexual advances were unwelcome by Ms. X¡¯s text message in July 2012 requesting that he...

An assault on a co-worker in connection with work constitutes misconduct, no matter the type of contract or appointment. The direct evidence from written statements, confirmed by strong circumstantial evidence adduced both in the investigation and at the hearing, taken cumulatively constitute a clear and convincing concatenation of evidence establishing, with a high degree of probability, that the alleged misconduct in fact occurred. In the Applicant¡¯s case, whereas the Tribunal would not be inclined to rely heavily on ¡°character witnesses¡± heard rather selectively, the mere fact that the...