51ÁÔÆæ

The Tribunal examined whether the application contained an administrative decision falling under the purview of Article 2.1 (a) of the UNDT Statute. The Tribunal took the view that the decision taken by the administration to appoint an ad interim DCPM and to reallocate responsibilities and duties pursuant to that appointment was an administrative decision. Nevertheless, for the purposes of Article 2.1 (a) of the UNDT Statute, the Tribunal stated that it is not sufficient for the Applicant to merely establish that an administrative decision was taken in the overall context of the position she...

The jurisdiction ratione materiae conferred on the Tribunal is set out in Article 2.1 (a) of the Statute of the United Nations Dispute Tribunal. The Tribunal cannot compel the Organization to investigate the Applicant¡¯s complaints against ECA¡¯s Senior Management as pleaded by the Applicant. An investigation is part of a disciplinary procedure as described at paragraph 2 of ST/AI/371 ¨C Revised Disciplinary Measures and Procedures. The Applicant has recourse under the Staff Regulations and Rules to pursue his grievances in relation to his allegations of abuse of authority by ECA Management.

The Tribunal finds that the Applicant has been consistently dilatory in the pursuit of this claim. Leaving the matter open on the court¡¯s docket would be inappropriate in view of the Applicant¡¯s clear lack of interest in pursuing this claim.

A re-trial would be unduly wasteful of time and resources. The Respondent was adequately represented especially as no oral evidence was tendered by the Applicant and the issue of cross- examining a witness did not arise. Full equality was accorded the parties in the circumstances. The onus lies on the Respondent to show that the provisions of ST/AI/2006/3 had been complied with in this case in order to prove that the Applicant was fully, fairly and properly considered. This onus has not been discharged.The Applicant¡¯s candidature was not considered at the 15-day mark as required by the...

i. Whether the Applicant¡¯s suspension of 26 May 2006 was lawful: The Tribunal found that the Chief of Security/UNON unilaterally and verbally suspended the Applicant in breach of the Staff Rules at that time. It was noted that such a decision could only be made by the Assistant Secretary-General, Office of Human Resources Management (ASG/OHRM) who was the properly delegated individual. Further, the Applicant was not given reasons for his suspension and the suspension was not made in conjunction with a charge of misconduct. ii. Whether the Applicant was lawfully placed on SLWFP: The Tribunal...

With regard to due process requirements, the Tribunal found that the Applicant had been afforded a hearing in regard to the charges alleged against him. Whilst the language used in the last paragraph of the USG¡¯s letter dated 8 November 2005 seemed to suggest that if the JDC made a request for the physical presence of the Applicant in Geneva such a request would be acceded to, the Tribunal was of the view that the JDC did not indicate in clear terms that the presence of the Applicant would be essential, the word used in Rule 29 and the USG¡¯s request did not violate the Applicant¡¯s rights to...

The Tribunal dealt with the notion of ¡°exceptional circumstances¡± in the light of the jurisprudence of the former UN Administrative Tribunal, the UNDT and the UN Appeals Tribunal. It reaffirmed that ¡°exceptional circumstances¡± are those circumstances that are outside the control of the applicant. The Tribunal considered whether it could find any exceptional circumstances, as alleged by the Applicant that could justify a waiver of the receivability requirements, pursuant to staff rule 111.2 (f) of ST/SGB/1999/5 of 3 June 1999. Initially the Applicant submitted before the JAB that the fact that...

This Application is not receivable and is additionally frivolous and vexatious.

The early termination of his contract was not based on a proper or lawful evaluation of the Applicant¡¯s performance. In the absence of a comprehensive and fair performance evaluation done at the time, the reasons given by the Respondent cannot be regarded as cogent or reliable because the Applicant did not have an opportunity to refute, answer or rebut them. They therefore represent just one side of the story and, however strongly felt by the Respondent, are not a reliable basis for a lawful termination of the contract before its expiry date. This is not a question of improper motivation...

Whether the decision was prejudiced, arbitrary and based on abuse of authority and improper motives: Apart from one letter in which he complained bitterly about the leadership of the CMS, the Applicant did not lead any evidence to substantiate this claim. Therefore, the Tribunal found this claim to be without merit Whether the Applicant had a legal expectancy/legitimate expectation of renewal: Pursuant to ST/AI/404, mission detail, as any other assignment in the Organization, is at the discretion of the Secretary-General. The Tribunal found that the actions of the Respondent were not of such a...