A judgment must be uncertain or ambiguous to be open to interpretation by the Tribunal. The Tribunal held that paragraph 19 of the judgment was an obiter observation by the Tribunal and did not have a bearing on the reasoning or outcome of the final judgment. The Tribunal found that paragraph 19 was neither uncertain nor ambiguous. The Tribunal held that Article 12.3 must not be used to re-open proceedings, and this is what the Applicant had attempted to do.
The fact that the attempt to defraud the medical claims system was not successful did not diminish the Applicant’s liability in having made a false claim, as such; his actions destroyed the faith of the Organization in the Applicant which was necessary for continuing employment relationship. Proportionality: Although comparison between other similar cases can be referred to, they should be treated with caution as every case turns on its own facts. In determining whether to lessen the imposed sanction, the Tribunal will consider mitigating circumstance that had not been previously considered....
The practice of placing reliance upon recordings in initial fact finding exercises and interview notes of appointed investigators in an effort to establish gross misconduct warranting summary dismissal before the Tribunal is grossly inadequate and cannot establish the facts in issue. An investigator must be committed to ascertaining the facts of the case through relevant inquiry involving the questioning of witnesses, forensic evidence where necessary and identification and collection of relevant documentary evidence. The investigator’s findings should be based on substantiated facts and...
Assessment of prima facie unlawfulness: In the course of suspension of action proceedings sufficient proof of the facts must be presented in view of the strict time limits governing the suspension of action procedure.
Administration’s withdrawal of unlawful individual administrative decisions which created rights: According to the Appeals Tribunal’s case law, a decision creating rights cannot in principle be withdrawn by the Administration. However, staff rule 11.2 which governs the management evaluation process constitutes an exception to this principle. Thus, under this provision, the Administration is obliged to withdraw an administrative decision that is unlawful where such decision is challenged by a staff member. It is not appropriate to distinguish between the situation where the Administration finds...
Competence of decision-maker: Competence of the decision-maker is a cornerstone of the legality of an administrative decision. When the exercise by the Administration of its discretionary power is under judicial review, any lack of authority leads inevitably to the rescission of the contested decision.As this is an essential element for the legality of the contested decision, the authority of the decision-maker has to be assessed by the Tribunal on its own motion, regardless of the parties’ views at any stage of the administrative and judicial proceedings.Delegation of authority: Exclusions...
Competence of decision-maker: Competence of the decision-maker is a cornerstone of the legality of an administrative decision. When the exercise by the Administration of its discretionary power is under judicial review, any lack of authority leads inevitably to the rescission of the contested decision.As this is an essential element for the legality of the contested decision, the authority of the decision-maker has to be assessed by the Tribunal on its own motion, regardless of the parties’ views at any stage of the administrative and judicial proceedings.Delegation of authority: Exclusions...
Competence of decision-maker: Competence of the decision-maker is a cornerstone of the legality of an administrative decision. When the exercise by the Administration of its discretionary power is under judicial review, any lack of authority leads inevitably to the rescission of the contested decision.As this is an essential element for the legality of the contested decision, the authority of the decision-maker has to be assessed by the Tribunal on its own motion, regardless of the parties’ views at any stage of the administrative and judicial proceedings.Delegation of authority: Exclusions...
Application for suspension of action pending management evaluation in disciplinary matters: It is clear from a plain reading of article 2.2 of the Tribunal’s Statute, article 13.1 of its Rules of Procedure and staff rule 11.2 that the two former provisions apply only where management evaluation is required. In the instant case, the contested decision is a disciplinary measure which can be challenged before the Tribunal without first seeking management evaluation. Thus, the Tribunal cannot rely on these provisions to order the requested suspension of action pending management evaluation...
Need to observe time-limits: It is for the staff member who sought management evaluation of a decision, once he/she has been informed that the Secretary-General issued his response, to take cognizance of the content of this response as soon as possible and ensure compliance with applicable deadlines.
