51ÁÔÆæ

Having reviewed the record, the Tribunal concluded that proper procedures were followed during the selection exercise and that the Applicant received full and fair consideration for the TJO# 136259. The record showed that the Applicant was shortlisted and invited for the interview and was subsequently recommended by the hiring manager to the Head of Mission for selection. However, the hiring manager proposed another candidate for selection as the most suitable candidate because that other candidate had received a higher rating for the competencies of Planning and Organizing and Client...

The Applicant became aware of her de-rostering in 2017 and it became apparent in 2020, after three years of enquiries that she was in fact de-rostered. She only requested management evaluation on 6 June 2021, several months beyond the 60-day deadline. The Tribunal also found that the impugned decision did not constitute an "administrative decision" as defined in United Nations Administrative Tribunal Judgment No. 1157, Andronov (2003). The change of rostering status complained of did not involve a final decision taken with direct legal consequences for the Applicant¡¯s rights and obligations...

The Tribunal recalled that a former staff member has access to the Dispute Tribunal only in respect of an administrative decision affecting the terms of his or her former appointment or contract. In the present case, the Tribunal found that the application was not receivable ratione personae because at the date of filing the application, the Applicant was not a staff member and the contested decision did not breach the terms of his former appointment or contract of employment.

Given that the Tribunal already adjudicated the Applicant¡¯s claim, finding it not receivable ratione personae for lack of standing, the present application is not receivable. The Secretary-General¡¯s response to a request for management evaluation is not an appealable administrative decision.

The contested decision having been rescinded by the Administration was, therefore, not a final administrative decision capable of review by this Tribunal, which, consequently, can make no pronouncement as to its legality or as to any effects it may have caused. The Applicant¡¯s claim that the rescission of the contested decision constitutes an admission of its unlawfulness is without merit. The Application is therefore not receivable ratione materiae. The Tribunal notes that in this case, the Applicant does not claim any abuse of the current proceedings, nor does the Tribunal observe any such...

The Tribunal found that V01 was a credible witness. Her testimony was taken independently, bearing in mind all the circumstances, and established the facts that sexual exploitation and abuse took place. The Tribunal found W01 a credible witness, her testimony relating to the first incident which she resolved informally with the Applicant was consistent with and corroborated V01¡¯s testimony. The Applicant did not successfully discredit this testimony. The Tribunal found that the established facts qualified as misconduct under the Staff Regulations and Rules. The Applicant engaged in sexual...

The Tribunal found that the Applicant had not established that she fit in any of the three categories enunciated in the Statute. She could not sue as a staff member because she was not, and she could not sue as a former staff member because the claim had no relation to her contractual status. The Tribunal having found that the Applicant was not the decedent¡¯s widow, she was not entitled to the benefits in any capacity. The Applicant had no standing ratione personae.

Therefore, the facts resulting from this investigation were not established to a sufficient standard that would permit the Administration to later rely on them to act against the Applicant once he became a staff member. Accordingly, the Tribunal is not satisfied that Administration acted as a reasonable decision maker in deciding to terminate the Applicant¡¯s fixed-term appointment and finds the contested decision unlawful and decides to rescind it. The contested decision is rescinded. Under art. 10.5(a) of its Statute, the Respondent may elect to pay the Applicant compensation in lieu of the...

If the scope of understanding of what the mandatory enrollment-related fees are under sec. 3.1(a) were to be limited in accordance with the Respondent¡¯s submissions, this should therefore have been reflected in the relevant legal framework. This is, however, not the case. Under the plain meaning rule, if the Respondent, namely the Secretary-General, wants the situation to be regulated as contended by his Counsel, this should therefore also clearly and unambiguously follow from the relevant legal framework, in particular ST/AI/2018/1/Rev.1, which the Secretary-General has promulgated himself...

Concerning the corrective measures: To the extent that the fact-finding panel¡¯s investigation resulted in a finding of actions on the part of the Applicant that called for corrective measures in the form of training and counselling, the Respondent¡¯s actions were procedurally proper. The cautionary corrective measure of providing training and counselling for the Applicant was appropriately taken in accordance with ST/SGB/2008/5 in circumstances where, although there was no misconduct, the Applicant¡¯s manner of performing his duties caused a staff member to feel harassed. Concerning the decision...

The act of cheating in which the Applicant engaged did not necessitate the use of her UNDP email address. Therefore, the use of the UNDP email address is a distinct and separate from assisting AA in cheating. Considering that the Applicant was a senior staff member, that she had a personal interest in the outcome of the tests in that the person she assisted was her partner, and that the assistance that she provided was significant as she provided AA with full written answers to the test questions, which he then almost completely copied and submitted, the nature and gravity of the Applicant¡¯s...

The Tribunal concluded that based on the Applicant¡¯s admission and testimonies of other witnesses during the investigation and at the hearing, it had been established by clear and convincing evidence that the Applicant physically assaulted another staff member on 20 March 2016. On whether the facts amounted to misconduct, the Tribunal found that the Applicant¡¯s action violated staff rule 1.2(g) and constituted workplace harassment, which is prohibited by staff rule 1.2(f). Accordingly, the Applicant¡¯s action amounted to misconduct. With regard to whether the sanction was proportionate to the...

The Tribunal concluded that the application was not receivable both ratione temporis and ratione materiae. With regard to ratione temporis, the Tribunal noted that the Applicant became aware of the contested decision on 31 May 2019. She then ought to have requested management evaluation by 30 July 2019. She however, submitted her request on 30 December 2019, five months late, and outside the 60-day period. The Tribunal thus held that her request for management evaluation was time-barred and therefore, the application was not receivable. The Tribunal emphasized that it was not competent to...

The Tribunal recalls that there is a procedure to challenge administrative decisions which a staff member deems to be in violation of his or her contractual rights. The Applicant, who is represented by professional counsel, cannot bypass the applicable procedures to indirectly introduce decisions, which were not timely challenged, into these proceedings to argue that they form part of a pattern of abuse against her. To allow this tactic would result in an upset of the administrative legal order of the Organization. The Tribunal notes that Applicant disagrees with UNICEF¡¯s evaluation of her...

The present matter can be determined on a priority basis without first transmitting a copy of the application to the Respondent for a reply as provided for in art. 8.4 of the Tribunal¡¯s Rules of Procedure. There is no nexus between the Applicant¡¯s former employment and the contested decision. Accordingly, the Applicant does not have standing and the application is not receivable ratione personae. Having filed the application pending the response of the management evaluation and prior to the expiry of the relevant response period, the Tribunal is not competent to hear the matter at issue. The...

The Tribunal held a case management discussion on 19 August 2021 during which the parties agreed that this application had been superseded by the decision of 12 November 2019 from the ABCC denying the Applicant¡¯s claim for benefits under Appendix D. At the time of filing the application, on 23 October 2019, the Applicant had not yet received this decision. In view of this development, the Tribunal found that the application was not receivable ratione materiae as indeed the application did not disclose a reviewable administrative decision. The Applicant did not establish that she was contesting...

ST/AI/400 explicitly applies to the abandonment of post and sets out the process to be followed under such circumstances. The Applicant's case is not one of abandonment of post but one of unauthorized absence under ST/AI/2005/3. The mere submission of a medical certificate in support of an absence does not suffice. Said certificate must be approved by the respective Medical Service. This has not been so in the Applicant's case, whose medical situation will be examined by a Medical Board pursuant to ST/AI/2019/1, and her placement on SLWOP is not a violation of her rights.

Management evaluation of the decision concerning Applicant's share of contribution for medical insurance not filed within the statutory deadline. Consequently, this part of the application is not receivable ratione materiae. Application is receivable concerning the decision concerning the Applicant's share of contribution for the United Nations Joint Staff Pension Fund (UNJSPF). Art. 25.b)i) of the UNJSPF Regulations clearly provides that contributions during SLWOP are paid either 1) in full by the staff member, 2) in full by the employing Organization or 3) partly by the staff member and...

As a result of the Applicant's request for management evaluation, the contested decision was rescinded. Therefore, said decision no longer produces legal effects and the application is moot.

The Tribunal found that the Applicant had not satisfied his burden of proof to show through clear and convincing evidence that his separation was unfair and that the Administration did not violate any term of the Applicant¡¯s contract of employment. The Applicant challenged the fact that he was separated on ground of retrenchment before the General Assembly had approved the Budget to abolish his post. The record showed that this issue was already adjudicated upon in favour of the Applicant under Order No. 086 (NBI/2019). In accordance with the Tribunal¡¯s earlier final finding on the matter, it...