51ÁÔÆæ

The Tribunal found that the contested decision did not appear prima facie unlawful and dismissed the application.

The Tribunal held that the Applicant had not raised a prima facie case that the decision was arguably unlawful or that he would suffer irreparable damage from its implementation.

The burden of establishing bias or the perception of bias lies with the Applicant once the Respondent has made a minimal showing of regularity in the recruitment process. The Applicant must establish with clear and convincing evidence that he was not given full and fair consideration for the vacancy. Whilst the Tribunal was surprised that a person in the Applicant¡¯s position and with the Applicant¡¯s experience should not be recommended, it was unable to conclude that the Applicant had not been given full and fair consideration, particularly in view of the fact that some 13 other candidates...

Attempted theft: In the instant case, the Applicant¡¯s counsel cites the 23 June 2011 Judgment and argued that ¡°it follows that whereas the offence of an attempt to commit an act that could amount, if completed, to misconduct is not envisaged as a sanctionable offence within the prevailing legislative framework of the United Nations, the dismissal of the Applicant must be held to have been ultra vires.¡± This interpretation and application of the Tribunal¡¯s reasoning in the said judgment to this case and the Applicant¡¯s circumstances is misconceived and misleading. This is because the offence of...

The Tribunal dismissed the Application because the Applicant has not exhausted the reconsideration procedure set out in article 17(a) of Appendix D to the Staff Rules. Further, he did not request management evaluation of the negligence claim. Response to the Respondent¡¯s Reply: In granting a request to submit a response to a Reply, the Tribunal weighs factors such as: (i) whether the Respondent raised issues or facts that were not addressed in the Applicant¡¯s pleadings; (ii) whether the Applicant failed to adequately canvass all the issues raised in his/her pleadings; or (iii) whether allowing...

Receivability: The Tribunal held that the Applicants had standing pursuant to art. 2.1 of its Statute and found the applications receivable. Merits: Was the restructuring genuine? The Tribunal found that, although the retrenchment exercise resulted in the non-renewal of the Applicants¡¯ appointments, the motivation for it was genuine as it implemented General Assembly resolution 66/264. Was the restructuring implemented through a fair and lawful process? Consultations: The Tribunal found that the Administration did not consult the staff or staff representatives about the posts to be abolished...

Consolidation of applications: The Tribunal concluded that consolidation would not have any effect on the parties¡¯ rights as the two applications are virtually identical and each party will have the opportunity to have its case fully considered both as to receivability and on the merits albeit in one judgment. Receivability of the classification decision: Noting that Fuentes UNDT-2010-064 and Fuentes 2011-UNAT-105 confirm that a failure to decide an appeal against classification of a post encumbered by the Applicant is an administrative decision which may be subject to review by the Tribunal...

The UNDT found that the Applicant¡¯s substantive post has not existed for the past two years and that the Applicant has temporarily encumbered vacant posts to which he was not recruited since then, it is evidently too late in the day to challenge the abolition of his post which took place in 2013. General Assembly Resolutions - To the extent that the decision to abolish the Applicant¡¯s post was that of the GA, this Tribunal lacks jurisdiction to review the said decision.

Lawfulness of non-renewal decision: The Tribunal held that the instructions from UNHQ about the need for UNMIL to cut its budget by downsizing provided ample justification for the restructuring of the Mission which included the down-grading of a number of posts, including that encumbered by the Applicant. The Tribunal was satisfied that the reasons for the restructuring were genuine. Abolition of post: The Tribunal concluded that the contested decision was clear on its face that it was due to budget cuts and downsizing. Consequently, the Tribunal held that the reference to the abolition of the...

The Tribunal found that the Applicant¡¯s fixed-term appointment was not renewed because contrary to its claims, the UNMIL Administration did not follow proper procedures in determining whether he should be reassigned to the new D-1 position in the office of the D/SRSG Rule of Law. The Tribunal also found that the Applicant was not given full and fair consideration for the new D-1 position in the office of the D/SRSG Rule of Law and that the guidance provided in the Secretary-General¡¯s report and the counsel of the General Assembly were ignored. Due process ¨C No comparative review or any review...