51ÁÔÆæ

Bias: The Tribunal held that the test for apparent bias is whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the Interview Panel was biased. On the basis of the evidence about negative views held by one of the interview panel members about the Applicant, the Tribunal concluded that the test for apparent bias had been made out. Harassment, discrimination and abuse of authority: The Tribunal concluded that in spite of the adverse finding that the Applicant did not receive full and fair consideration in his application for the...

The Tribunal concluded that the filling of the post by lateral transfer on the retirement of the incumbent was in breach of ST/AI/2003/8. Lateral transfer: The Tribunal held that as a lateral move is a discretionary measure, its use must be in accordance with the established procedural rules and must not be arbitrary or motivated by factors inconsistent with proper administration or based on erroneous, fallacious or improper motivation. The Tribunal concluded that the use of a lateral transfer in this case was an arbitrary use of the discretion conferred by ST/AI/2010/3 in light of the fact...

The Tribunal held that the decision to appoint a staff member to the post of Director/RIITD off the roster without consideration of the other candidates (including the Applicant) who had applied to the post was unlawful. It failed to give the Applicant full and fair consideration for the post and denied him due process. Roster based selection: The Tribunal noted that the General Assembly resolutions on human resources management reiterate the principle of transparency in the selection process and the need for vacancies to be advertised and held that there is no transparency in a process that...

The UNDT considered that the Applicant¡¯s initial complaint was meeting all the requirements contained in sec. 5.13 of ST/SGB/2008/5. It noted that the decision not to initiate a formal fact-finding investigation was made only six months after the complaint had been lodged hence it did not meet the requirement of ¡®promptness¡¯ contained in sec. 5.3 and sec. 5.14 of ST/SGB/2008/5. Further, the UNDT found that the course of action chosen by the ASG/OHRM, which consisted in asking first the alleged offender for his views, had no legal basis in ST/SGB/2008/5. Having considered the definition of the...

The Applicant alleged that his due process rights were breached and that the sanction was not proportional. Upon review, the Tribunal considers that the Respondent correctly established the facts but did not fully take into account the mitigating circumstances. The sanction applied is therefore too harsh and is modified by the Tribunal. The contested decision is rescinded and the Applicant is to be reinstated. The disciplinary sanction of separation from service with compensation in lieu of notice and without termination indemnities applied to him is replaced with the sanctions of a written...

The Tribunal found that the selected candidate did not fulfill the requirement of fluency in French hence his selection was illegal, despite his status as a roster candidate. It further noted that since the Administration had not examined the other candidates, including the Applicant, the latter¡¯s right to full and fair consideration was violated. The Applicant had only requested the rescission of the decision not to select her, without requesting the rescission of the decision to select the successful candidate. The Tribunal rejected the Applicant¡¯s request for rescission and merely ordered...

Estoppel - It was argued on behalf of the Respondent that the Applicant has waived or is estopped from enforcing his right to challenge the contested decision since at the Applicant¡¯s request, the Administration in good faith deferred the effective date of termination of his appointment to enable him to acquire a pension benefit. Given the circumstances of this case, the Applicant had neither waived nor was he estopped from enforcing his rights to challenge the contested decision. The principles of waiver and estoppel will not apply in such a case to deny an Applicant from enforcing his legal...

The Respondent claimed that the appeals with the UNDT were filed out of time and were not receivable. 42 of the requests for management evaluation were filed on 19 March 2013 and a response from the MEU was emailed to the legal representatives for the Applicants, cc¡¯ing each of the Applicants, on 9 April 2013. The legal representatives for the Applicants submitted that he never received the email resulting in him appealing the contested decision on day 90 (17 July 2013), following the expiry of the 30 day period for the MEU to send them a decision (19 April 2013). The Respondent submitted that...

Management Evaluation - It was held that the Management Evaluation Unit (MEU) and the Tribunal operate on different deadlines and receivability thresholds and that the Tribunal cannot be bound by the findings of the MEU regarding the receivability of a case. Receivability - The Tribunal found that in this case, the entire 26 month period during which the Applicant was estranged from the Organization formed part of the same continuum punctuated by different contradicting decisions all of which centered on the singular issue of abuse of authority. Given the continuous nature of the Applicant¡¯s...