51ÁÔÆæ

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...

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.

The UNDT found that the application was not receivable as the Applicant had failed to take the mandatory first step of requesting management evaluation of the contested decision. However, it observed that while failure to request management evaluation denies the Applicant access to the Tribunal¡¯s jurisdiction at present, the Applicant was never formally notified in writing of the administrative decision or the reasons therefore. Furthermore, the Tribunal noted that the situation in this case arose through an alleged mistake of the Administration and through no fault of the Applicant.

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...

The Applicant applied twice for the position of Director of Investigations, Office of Internal Oversight Services (¡°OIOS¡±) (¡°the Post¡±) at the D-2 level. The Post was first advertised in a vacancy announcement in 2008 and again in 2009. A selection panel set up by OIOS recommended him as the only qualified candidate for the Post in each instance. Neither of these recommendations was approved by the Special Review Group (¡°SRG¡±) and, as a result, no appointment was made to the Post. A third vacancy announcement was issued, for which the Applicant did not apply. The Applicant submits that he...

Starting date of the 90-day time limit to file an application: The UNDT Statute prescribes that an application before the Tribunal must be filed within 90 days following receipt of the Administration¡¯s response to the request for management evaluation. If the Administration replies after the response period for the management evaluation but before the expiry of the 90-day period, the 90-day period to file an application before the Tribunal starts running again from the date the response is given. Evaluation criteria: It is clear from ST/AI/2006/3/Rev.1 and the Guidelines for programme case...

The Applicant was engaged in an unauthorized outside activity. The Applicant¡¯s unauthorized outside activity whilst providing her personal financial gain, did not result in an actual conflict of interest as defined by the applicable rule. The investigators had an obligation, in accordance with the universal principles of natural justice, to inform the Applicant of her right to the assistance of Counsel during investigations. The doctrine of proportionality is applicable in this case to reduce the Applicant¡¯s summary dismissal to a written censure in line with the Secretary- General¡¯s practice...

Date of implementation of the contested decision: Although the Tribunal has taken different approaches with respect to the date of implementation of selection decisions pursuant to ST/AI/2010/3, a selection decision must be considered as implemented once the Organization receives the selected candidate¡¯s unconditional acceptance of the offer of appointment.

In view of the Applicant¡¯s submission, the case was found moot and the application was dismissed. The Applicant alleged that UNAMA reneged on an undertaking made in her previous application for suspension of action in May 2012, thus frustrating her temporary engagement. The Respondent submitted that the Administration had no objections to the Applicant going on a non-reimbursable loan, and that successful efforts were made to find the Applicant a temporary assignment with the United Nations Integrated Mission in Timor-Leste (¡°UNMIT¡±). The Applicant subsequently filed a submission informing the...

The Tribunal finds that jurisprudence does not constitute a new decisive fact.