51ÁÔÆæ

The Tribunal found that the Executive Secretary of ECA, who made the decision to fill the post from the roster, was not acting unlawfully in so doing, since ST/AI/2010/3 (Staff selection system) permitted this.

Decision affecting the applicant¡¯s rights: Since staff members have the right to apply to other positions under the Staff Regulations and Rules, they are entitled to contest a non-selection decision and a fortiori a decision imposing an additional condition for appointment after having been selected. Such a decision does affect the staff member¡¯s rights and is thus open to appeal.Lack of legal basis for the condition to renounce to permanent resident status: The General Assembly never endorsed the recommendations to approve the establishment of the condition that staff members must relinquish...

An appeal to an internal review panel established for such purpose did not amount to a written request for management evaluation addressed to the Secretary-General.

The UNDT found that the Panel on Discrimination and other Grievances, which was the body mandated to investigate the Applicant¡¯s complaint, failed to act expeditiously in bringing the Applicant¡¯s case to conclusion, finish its investigation, and issue its final report, as required by ST/AI/308/Rev.1. The UNDT found that the Organization failed to properly address the Applicant¡¯s complaint of harassment and discrimination and was thus in breach of the Applicant¡¯s contract. The UNDT found that the Applicant did not prove that any actual economic loss warranting compensation was caused to him...

A respondent who neglects to take part in the proceedings by not filing a reply within 30 days of receipt of the application may be readmitted by leave of the Tribunal only. The respondent in such a case is solely and effectively excluded by his own negligence to file a reply in time. He is not excluded by the Tribunal but by the operation of law. By his preposterous claim that the Registrar and the Judge owed him a duty to remind him of his obligations to his client, the Respondent¡¯s Counsel, sought, in the Tribunal¡¯s view, to provide an excuse for his own incompetence and lack of diligence...

The Tribunal did not find any evidence of sexual exploitation and abuse as defined by the SGB. The Tribunal considered the definition of pornography and on viewing the images concluded that they were obscene, hardcore pornography. In view of the Applicant¡¯s admissions and the quantity of materials on his official computer, the misconduct charge in that respect was well founded. The Applicant¡¯s submission that the evidence was fruit of the poison tree and therefore inadmissible was rejected on the basis that the illegally obtained evidence (a CD) merely triggered the investigation but did not...

Summary Judgment The Tribunal noted that Summary Judgment can only be entered in a case where the material facts are not in dispute and a party to case is entitled to judgment as a matter of law. Further that for a party to seek Summary Judgment, it has to be on the merits of the case and such a party should have pleaded facts in relation to the case. The Respondent had not pleaded any material facts and had also not joined issues with the Applicant on the merits of the case. Receivability In determining the receivability of the Application, the Tribunal addressed the Applicant¡¯s access to...

The Tribunal found that the acts complained of amounted to misconduct under Staff Regulation 1.2 and Staff Rule 301.3(d) as conduct unbecoming of an international civil servant and as sexual harassment in connection with work. A written censure was a lenient sanction in the circumstances. Sexual harassment in connection with work, as prohibited by Staff Rule 301.3(d), includes a situation where outside the workplace a staff member perpetrated an act of sexual harassment upon another staff member.

The Tribunal examined whether the two-year limitation for the recovery of the overpayment as stated in ST/AI/2009/1 applied to the case at hand. While it was undisputed that the overpayment resulted from an error on the part of the Organization, the Tribunal found that the Applicant could not seriously claim that she was unaware or that she could not reasonably have been expected to be aware of the overpayment, and it therefore concluded that the two- year limitation could not apply to her.

The UNDT found that the Applicant failed to satisfy the requirements of irreparable damage and particular urgency. The application for suspension of action was rejected.

The Tribunal finds that the application is not receivable because the contested decision is not a disciplinary measure within the meaning of staff rule 11.2(b) and accordingly the time limits applicable under art. 8.1(d)(i) of the Tribunal¡¯s Statute should have been complied with. It clearly follows from staff rule 11.2(b) that the exemption from the requirement to request the management evaluation of a disciplinary measure only applies to disciplinary measures imposed following the completion of a disciplinary process.

The Tribunal observes that the Applicant¡¯s claims concerning the decision to take into consideration events post-dating 31 March 2010 and the decision not to allow him to rebut his performance appraisal became moot and it considers that he failed to show that he was still suffering any injury because of these reversed decisions. It further notes that the rebuttal process is still pending and it therefore rejects as premature the Applicant¡¯s claims concerning the decision to apply ST/AI/2002/3 and the decision to carry out a single appraisal. It also rejects his claims of bad faith, abuse of...

The Tribunal finds that the circumstances appertaining at the time of recruitment of the Applicant created a legal expectancy of renewal. The decision not to renew the Applicant¡¯s contract was arrived at in breach of her rights to due process. The Applicant is entitled to compensation for losses incurred as a direct consequence of the non-renewal of the contract subject to the duty to mitigate.

The Tribunal examined whether the compensation granted to her by the Respondent was adequate to provide reparation for the damage she suffered as a result of the irregularities committed. The Tribunal found that none of her allegations was proven. It considered that the Applicant did not suffer any material damage as a result of the contested decision and that the compensation already given to her was sufficient to repair any moral damage. Selection procedure: It is for the Administration to determine the suitability of each candidate and the Tribunal should not substitute its judgment to that...

The process leading up to the termination decision. A human resources office, such as OHR, has the obligation to ensure that its administrative decisions are taken on a proper factual basis and, if necessary, make the necessary enquiries to ensure this to protect the affected staff member¡¯s rights. OHR failed to inform the Applicant and the relevant medical advisors about the consequences of her being declared disabled by UNSPC and about her possible alternatives. OHR also failed to delay the examination of the Applicant¡¯s case by UNSPC. All these circumstances breached the Applicant¡¯s rights...

The Tribunal found that the Applicant¡¯s rights to defence had been breached during the disciplinary procedure because the investigation report and all its attachments had not been shared with him. It concluded however that such a procedural flaw did not affect the established facts, since the Applicant had admitted to them, and did not warrant the rescission of the contested decision, since the established facts amounted to misconduct. The Tribunal nevertheless rescinded the summary dismissal on the ground that it was disproportionate to the established facts. It ordered: (i) the reinstatement...

The UNDT found that the Applicant failed to provide any explanation to the Tribunal as to the reasons for filing the present application 25 calendar days after the email of 28 October 2011 and nine working days before the examination. The UNDT found that the urgency in the present matter was created by the Applicant, who did not act timeously in filing the present application with sufficient urgency.

OSLA is an integral part of the Secretariat of the United Nations and that its decisions are taken under the umbrella of the Secretary-General. OSLA¡¯s decisions may be challenged to the extent that they are strictly administrative decisions and are not related to the giving of advice to litigants or the conduct of cases before the UNDT. It must be noted however that the scope and jurisdiction of the Tribunal is not limited to the author of the decision but most importantly to its nature. In order to establish that the administrative decision impacts on the contract of employment or terms of...

Allegations of domestic violence and conflicts over child custody, maintenance or paternity are properly matters for a criminal court and family court to entertain. The Organization has no business using its administrative procedures to involve itself in a personal dispute when other appropriate legal channels were available to the parties to sort out their rights and responsibilities. The unilateral extension of the Applicant¡¯s temporary assignment to Addis Ababa beyond the agreed one month amounted to bias, abuse of authority and a breach of the Applicant¡¯s due process rights.The Applicant...

The Tribunal found that it is incumbent on the Organization to pay home leave travel expenses only for children who are declared and recognized as dependants of the staff member with whom they travel. Family members eligible for home leave travel: Staff rule 5.2(j), which provides that ¡°[d]ependent children whose parents are staff members, each of whom is entitled to home leave, may accompany either parent¡±, must be interpreted in conjunction with staff rules 7.1 and 7.2. In doing so, it becomes clear that the Organization covers only the home leave travel expenses regarding children...