51ÁÔÆæ

The UNDT found that, given the burden of proof on the Administration to establish by ¡°clear and convincing evidence¡± that there is no retaliation pursuant to sec. 2.2 of ST/SGB/2005/21, and given some of the unresolved questions arising from the OIOS investigation report and its annexes, any reasonable reviewer would have examined the annexes, which the Ethics Office did not. Nor did the Ethics Office sent the report back to OIOS for further investigations and/or clarification. Since the Ethics Office did neither, the Respondent was found liable for the Ethics Office¡¯s failures and/or...

The Tribunal rejects the Applicant¡¯s request for a joinder of both cases and it dismisses this case as moot.

The UNDT found that the decision that there was ¡°reason to believe¡± that the Applicants may have committed misconduct was manifestly unreasonable, arrived at in breach of due process, and was thus unlawful. The UNDT found that the Applicants¡¯ rights were not respected during the subsequent preliminary investigation. The UNDT found that the decision to conduct an investigation against the Applicants and the manner in which it was carried out was tainted by procedural irregularity and manifest unfairness. The UNDT found that the Applicants had engaged in protected activity, namely, reporting of...

Jurisdiction over decisions of the Ethics Office: The work of the Ethics Office is delicate in nature and its functions have a direct impact on staff member¡¯s rights. Therefore, in view of the case law of UNAT, the decision of the Ethics Office is an administrative decision and the Tribunal has jurisdiction to review such a decision. Duration for conducting a preliminary assessment by the Ethics Office: The nature of the work of the Ethics Office requires timely reaction for effective protection of any ¡®whistle-blowing¡¯ activity. Although the duration of 45 days mentioned in section 5.3 of ST...

Legal Obligations/Applicable rules: Rules affecting jurisdiction and remedies are not procedural but substantive in nature. A person cannot be entitled to remedies or be subject to penalties that come into force after the event in question. Protected activity: The criteria for determining whether a person has properly reported misconduct or engaged in a protected activity are not mere matters of procedure. A report of misconduct is the protected activity which is the very foundation of a claim for protection without which a claim cannot be considered. Retroactive application: As a matter of...

The Tribunal found that the Applicant was not entitled to any compensation for loss of earning and benefits because the case corned the Ethics Office¡¯s decision that the Applicant had not been retaliated against and not the circumstances regarding his separation from UNDP. As for non-pecuniary damages, the Tribunal found that it was difficult to envisage a worse case of insensitive, high-handed and arbitrary treatment in breach of the fundamental principles of the Universal Declaration of Human Rights, including Articles. 1, 3, 6, 7, 8 and 9. Furthermore, the Tribunal found that the failures...

The Tribunal found that the USG/DESA complied with ST/SGB/2008/5 by closing the case and providing the Applicant with a summary of the Investigation Panel¡¯s findings and conclusions. However the applicable mandatory time limits for assessing the complaint, appointing the panel and submitting the final investigation report were not respected. The Applicant is awarded a compensation in the total amount of USD2,300. The Tribunal found that there was no evidence that the Investigation Panel did not gather sufficient evidence or erred in reaching its findings and conclusions presented in the report...

The Tribunal was not persuaded by the Respondent¡¯s submission that because the Ethics Office is independent, its acts and/or omissions are not subject to judicial review. However, the Tribunal found that, given the current state of the jurisprudence, it had no option but to accept that, in accordance with the Appeals Tribunal judgments in Wasserstrom 2014-UNAT-457 and Nartey 2015-UNAT-544, the matters contested in the applications are not administrative decisions subject to judicial review.

Appeals against Ethics Office: The United Nations Appeals Tribunal has consistently held that the role of the Ethics Office under ST/SGB/2005/21 is limited to making recommendations to the Administration and that such recommendations do not in themselves affect terms of appointment of staff members. the review made by the Ethics Office is not a substitute to the internal system of justice, which includes the Dispute Tribunal. Therefore, filing of a complaint with the Ethics Office does not replace the requirements of the Tribunal¡¯s Statute, its Rules of Procedures, and the Staff Rules. Any...

The alleged failure to protect the Applicant from further retaliation is not a contestable administrative decision as it does not have legal consequences on his terms of employment. Therefore, this part of the Applicant¡¯s case is not receivable. The Ethics Office¡¯s recommendation only required that ¡°efforts be made¡±, in consultation with the Applicant, to transfer him to either a position in the specialized units in his section or to another position in his department. According to the recommendation, the Applicant had no right to be transferred to a position outside his section.; The Ethics...