51ÁÔÆæ

The Tribunal rescinds the decision to terminate the Applicant¡¯s employment and Orders: (i) the Respondent to reinstate the Applicant to a position whose duties she is able to carry out given the impairment she suffers; (ii) Orders the Respondent to make good the Applicant¡¯s lost earnings from the date of termination of her fixed-term appointment to the date of her reinstatement with interest at 8% per month for the said period; (iii) Orders that the Applicant be paid her entitlement to for the period from 28 March 2007 to 31 July 2007 during which period she was entitled to special sick leave...

The decision to remove the Applicant from the position of Rule of Law Project Manager: The UN Charter expects all staff members to conduct themselves in accordance with the highest standards of efficiency, competence and integrity. Further, there is implied into every contract of employment a term of mutual trust and confidence between employer and employee, which means that both parties must act responsibly and in good faith. Where the employer acts unilaterally in removing an important part of the employee¡¯s functions, the employer would have repudiated the contract of employment. The...

Harassment allegations: People are entitled to their opinions, even unflattering or wrong-headed, about colleagues. It is only when those opinions are conveyed in ways that constitute harassment or abuse that they become problematical in a legal sense. A genuine opinion about a colleague¡¯s competence that happens to be adverse is not susceptible of criticism. While not placing the delays of the applicant in making complaints about the matters to which he has referred on the scales against him, those delays have made it much more difficult for him to prove they occurred quite as he alleges...

When attempting to establish a pattern of retaliation with regard to past decisions, the question is one of the relevance of those decisions, not receivability. Whether or not the SGB on retaliation was in force at the time an act or decision took place, the act or decision can still be considered retaliatory and constitute serious misconduct. The burden on the respondent of proving ¡°by clear and convincing evidence¡± in respect of decisions made before the provision came into effect that ¡°it would have taken the same action absent the protected activity¡± (ST/SGB/2005/21) applies to decisions...

The Organization cannot with propriety resort to reliance on particular provisions in its Rules and Regulations which were arguably inconsistent with a representation merely because the Rules and Regulations are referred to as a whole in the Letter of Appointment. Not only was the respondent in breach of its contract with the applicant by deciding arbitrarily and capriciously not to renew his contract (as had been admitted) but it was in breach of the contract by not renewing it in accordance with the undertaking to do so if the applicant¡¯s performance was satisfactory. The applicant¡¯s...

[Case UNDT/GVA/2009/33] The APPC omission to inform the applicant that his supervisor had sent a letter to it concerning his employment and to share its content with him does not constitute an administrative decision within the meaning of article 2.1 (a) of the Tribunal¡¯s Statute. It thus falls out of the jurisdiction ratione materiae of the UNDT. The decision not to renew the applicant¡¯s contract was already taken at that point. Hence, the letter to the APPC was merely internal communication; at the highest, it could be regarded as one step in a complexe procedure. [Case UNDT/GVA/2009/40] The...

[UNDT/GVA/2009/63 ]Contrary to what he contends, the applicant was not prevented from undertaking the separation procedures before the separation memorandum was issued. He was notified of the non-renewal of his contract nearly two months before his effective separation. Hence, the argument that the late issuance of the separation memorandum created such a situation that he was bound to work beyond the date of expiration of his appointment does not stand. The Organization offered him a reasonable chance to finalize the different separation formalities, both during the last two months of service...

Outcome: On the balance of probabilities it appears that the applicant was unable to perform his duties at an adequate level and the most significant cause of this situation was not lack of training or assistance, but his own attitude. In fairness to the applicant, more should have been done to help his transition from his outside employment to the requirements of his new employment. In light of the rebuttal process being made available to the applicant, he did not suffer any actual detriment from the lack of an ePAS and had the benefit of a rebuttal process. The application is dismissed in...

The Tribunal found that the performance appraisal followed by the rebuttal process had been done in respect of the rules and procedures applicable to UNDP. Based on the documentary evidence, it was the view of the Tribunal that, as a matter of fact, the Management went out of his way to afford the Applicant with as much latitude as possible to comment and challenge the rating of ¡°partially met expectations¡±. With regards to the Applicant¡¯s allegations of harassment, retaliation and discrimination, the Tribunal found that both the UNDP Ethics Office and the UN Central Ethics Office followed the...

It results from ST/AI/2002/3 that the administration is entitled not to renew the FTA of a staff member whose performance was rated ¡°does not meet performance expectations¡±, on the mere grounds of the staff member¡¯s bad performance. It further results from ST/AI/2002/3 that in case the staff member¡¯s performance was rated ¡°partially meets performance expectations¡±, the administration is obliged to apply measures which allow the staff member to improve his/her performance, before it can decide on the non-renewal of the staff member¡¯s FTA on the basis of bad performance. In the present case, the...