51ÁÔÆæ

Allegations of domestic violence and conflicts over child custody, maintenance or paternity are properly matters for a criminal court and family court to entertain. The Organization has no business using its administrative procedures to involve itself in a personal dispute when other appropriate legal channels were available to the parties to sort out their rights and responsibilities. The unilateral extension of the Applicant¡¯s temporary assignment to Addis Ababa beyond the agreed one month amounted to bias, abuse of authority and a breach of the Applicant¡¯s due process rights.The Applicant...

Receivability/administrative decision: Preliminary decisions such as the choice of an appropriate basis for a staff member¡¯s performance appraisal do not have direct legal effects on his/her rights. They can only be reviewed within the context of the assessment of the final decision, that is, the outcome of the staff member¡¯s performance appraisal.Delegation of authority: A delegation of authority should not be guessed at or presumed. It must precede the taking of a decision and is not synonymous with retrospective rubberstamping.Classification of posts/generic job profiles: Section 2.2 of ST...

The Initial Reprimand. The provisions of ST/AI/292 and the doctrine of audi alteram partem were not observed in that the Applicant was not afforded an opportunity to see and to comment on the reprimand before it was issued for which reason he had no opportunity to comment on it in advance. The Reinstated Reprimand. The Tribunal identified the following difficulties with the Reinstated Reprimand: (1) as with the Initial Reprimand, the Applicant was not permitted to see and to comment on the Reinstated Reprimand in accordance with ST/AI/292; (2) the rules and regulations of the Organization...

The initial fact-finding investigation was fundamentally flawed, unreliable and a sham. The failure to conduct a proper investigation but to resort to arm-chair analysis and conclusions based on the unreliable initial fact-finding investigation was not only useless but constituted a violation of the provisions of ST/Al/371 and the Applicant's due process rights. The Preliminary Investigation Report is characterized by a lack of direct evidence from the alleged victims and a heavy reliance on second hand evidence made by third party witnesses. The IGO/Investigation Unit failed to establish...

The Tribunal found that the decision to reassign the Applicant was an unlawful exercise or the Administration¡¯s discretion because, although the decision was based on her alleged poor performance, the Applicant¡¯s performance had never been evaluated in accordance with the established procedures. The subsequent decision not to renew her contract was flawed for the same reason. Whilst the official reason given was that the Applicant did not accept the post offered or apply for another one, the Tribunal found that the non-renewal decision was motivated by the Applicant¡¯s supervisors¡¯ assessment...

There was no evidence that established that the work place had become intimidating, hostile or offensive for the Complainant. The charge of sexual harassment cannot be sustained in the circumstances to the extent that the Complainant was a willing participant in sex talks in emails, via telephone, via text messages and in person. While it is recognised that a rebuttable presumption of law or fact may exist where a certain set of facts are present, there is definitely no room for making a legal finding based on presumptions about what would likely be the case in a given situation. It is a trite...

The Tribunal held that the Organization has a discretionary power to organize its work and offices. However, it reiterated the general principle that such a power is not absolute; the Organization has the authority to reorganize an office and terminate a staff member¡¯s contract so long as that the decision is not tainted by extraneous factors or improper motives. Based on the facts and evidence adduced by the parties, the Tribunal found that the decision to phase out the programme for which the Applicant had been recruited had been made on the basis of an evaluation made by external...

The initial decision not to confirm the Applicant to the post was taken by an unidentified person whereas only the High Commissioner has the authority to take decisions on promotions. This decision must therefore be rescinded by the Tribunal. A second decision not to confirm her to the post was taken by the High Commissioner following a recourse submitted by the Applicant to the APPB and the Tribunal must examine the legality of this decision. The UNHCR Representative, who decided not to recommend the Applicant¡¯s confirmation to the post, took this decision without informing her beforehand and...

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...

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.