51ÁÔÆæ

The impugned UNRWA DT Order clearly comes within its competence to issue appropriate case management orders. It did not exceed its competence or jurisdiction in issuing Order No. 123, and Mr. Zaqqout is not prevented from attacking the interlocutory order later if he appeals the final judgment of the UNRWA DT on the merits.

UNAT affirmed the UNDT Judgment, finding that the staff member¡¯s FTA was not terminated but rather, it expired in its own course. The Tribunal highlighted that a termination is initiated by the Secretary-General, under Staff Rule 9.6(a), and in the instant case, the staff member was not at all terminated on 30 May 2019. Instead, his FTA continued until its expiry on 30 June 2019, and until then, he retained his full position, rights and entitlements as a staff member of the Organization. The fact that the site was closed down, and the staff member was sent home with no work to do, is not...

UNAT first dismissed the cross-appeal, finding that although the Administration has the discretion to reassign staff members, such reassignment must be reasonable in the particular circumstances and cause no economic harm to the staff member. It must also respect the procedural and substantive rules of law and must not be arbitrary. UNAT agreed with the UNDT that the reassignment was performance-related and yet the staff member was never allowed the opportunity to address his performance issues prior to being reassigned. Regarding the appeal, UNAT disagreed with the staff member that the UNDT...

The staff member submits that the ¡°decisive fact¡± which was unknown to him and to the Appeals Tribunal was the erroneous interpretation and application from case to case of Article 10(5) of the UNRWA DT Statute, Regulation 11.3 of the UNRWA International Staff Regulations and Article 9(1)(a) of the UNAT Statute. UNAT disagreed that a variance in the interpretation or application of the law from case to case constitute a ¡°decisive fact¡± that would warrant revision. The Tribunal dismissed the application, finding that it did not meet the statutory requirements and that it was in fact a disguised...

UNAT found the UNDT correctly reviewed and rescinded the contested decision because of the procedural irregularities encountered during the investigation. But in addition to the procedural issues, UNAT also noted there were other significant errors. The Tribunal found that the panel erred when it sought to determine the Medical Officer¡¯s intent during the breast examination. The panel had previously concluded that there was no clear and convincing evidence that the actions of the Medical Officer during the breast examination were sexual in nature. Referring to Section 1.3 of ST/SGB/2008/5, the...

UNAT first noted that neither party disagreed with the UNDT Judgment that the contested decision was unlawful. Regarding the Secretary-General¡¯s appeal that an award in moral damages was not warranted, UNAT disagreed with the Administration and found that the UNDT was correct when it considered the medical certificate dated in March 2020, which gave a history of the staff member¡¯s health in 2015 (a year before the contested decision). UNAT found it credible that the staff member suffered from a pattern of harassment, which began before the time of the contested decision (June 2016). As such, a...

UNAT agreed that the time limit for requesting management evaluation against an administrative decision starts once a staff member has been notified of the decision in writing and in clear and unequivocal terms, which in this case was 18 September 2018. UNAT also agreed that the subsequent communications were mere reiterations of the prior decision, and a staff member cannot reset the time for management review by asking for a confirmation of an administrative decision that was communicated to him earlier. The date cannot be unilaterally set by the staff member, and as such, it cannot be the...

UNAT dismissed the Secretary-General¡¯s appeal and granted the staff member¡¯s cross-appeal, in part. UNAT found that the UNDT properly took into account several facts that were relevant in determining whether there had been sexual exploitation and abuse of vulnerability or trust. The Tribunal reasoned the burden on the Administration was to show on clear and convincing evidence that the staff member¡¯s conduct fell in one of the following five categories: (i) he abused a position of vulnerability for sexual purposes; (ii) he abused a position of differential power for sexual purposes; (iii) he...

The staff member filed an appeal to UNAT arguing that she did not only challenge the withholding of her salary increment, but she also challenged the reasons behind the administrative decision. She claimed the JAB did not review whether there were improper motives behind the administrative decision. UNAT dismissed the appeal, finding that the claims relating to the salary increment were indisputably moot. She obtained the relief she had originally sought, and accordingly her appeal no longer presented an existing or live controversy. UNAT explained that any judicial examination of the reasons...

UNAT denied both applications. Regarding the application for interpretation, the Tribunal held that the Majority Judgment was clear and unambiguous in its meaning, leaving no confusion or reasonable doubt about its conclusions or reasons. The Tribunal found that it was a disguised way by the staff member to criticize or disagree with the Judgment. Regarding the application for revision, UNAT explained that the staff member did not identify a decisive fact that was unknown at the time of the Judgment. Instead, the staff member referred to events that occurred subsequent to the Judgment. As such...

UNAT granted the application for correction. The Tribunal stated that the misidentification of the superior was an accidental error and was factually incorrect. The Tribunal, however, added that this error had little or no bearing on the outcome of the case. Regarding the request for further explanation on the Judgment, UNAT dismissed the request finding that the Judgment is comprehensible and that this was a mere attempt by the staff member to criticize the Judgment.

UNAT considered an application for revision of Judgment No. 2020-UNAT-1008. UNAT considered Ms. Fosse¡¯s claim that SCBD/UNEP is an organisational unit within the Secretariat, and as such, UNAT purportedly erred when it deemed her transfer to that unit in effect caused her to relinquish her lien on the Chief of OSS post, which is located within the Secretariat. However, the Tribunal reasoned Ms. Fosse¡¯s application was inter alia rejected by the UNDT because she had not submitted her claim for constructive dismissal for management evaluation. Therefore, in the absence of this jurisdictional...

The Tribunal cannot review the merits of the Applicant¡¯s allegations of harassment or abuse of authority. Its jurisdiction is limited to the review of whether her resignation was caused by an action or inaction of Administration which was in violation of the applicable legal framework. The Applicant¡¯s resignation was not caused by an action or inaction of the Administration but was her unilateral decision. Accordingly, this aspect of the application does not concern an administrative decision capable of judicial review and is not receivable. ; Given that the Tribunal found that the Applicant¡¯s...

UNDT held that since the Applicant was separated due to the expiration of her fixed-term appointment, her separation could not be considered a termination pursuant to staff rule 9.6(b). Therefore, the retainment criteria referred to in staff rule 9.6(e) was not applicable to the Applicant¡¯s case, and she was not entitled to a termination indemnity pursuant to staff regulation 9.3(c). UNDT held that the contested decision was lawful and that the Applicant was not entitled to the remedies requested. UNDT rejected the application in its entirety.

The Applicant was separated from service for submitting false information in three claims for dental treatment to the Medical Insurance Plan provider, Cigna, for reimbursement. The Applicant¡¯s due process rights were respected because during the investigation he was properly informed of the subject and purpose of the interview and afforded sufficient notice. He also had no objections as to the conduct of the interview when asked at the end of his interview. With respect to the claim that the Applicant insisted was, in fact, genuine, the Tribunal concluded that the allegation had not been...

The Applicant¡¯s supervisor did not participate in the selection process for the four Representative positions in Uzbekistan, Ukraine, Bolivia and Nigeria, and for the position of Chief Gender and Human Rights. The Applicant¡¯s Supervisor¡¯s participation in the selection process for the Palestine position did not affect the integrity of the selection process. The Applicant was given full and fair consideration. The fact that the Rotation exercise and selection decisions for the positions in Uzbekistan, Ukraine, Nigeria and Palestine and the relevant Ethics Units determination and recommendation...

Not only is it the duty of every member of the United Nations personnel to cooperate with the Internal Justice System, but also it is particularly important for senior leaders of the Organization to lead by example. There is no evidence that a selection decision had been made in the first selection exercise before it was cancelled. The cancellation was based on facts supported by evidence and, therefore, it was lawful. The Applicant¡¯s allegations of ulterior motive have no bearing on the decision to cancel the first selection process because the reasons given were lawful. The Applicant¡¯s claim...

Staff rule 4.9(a) provides that inter-organization movements shall be governed by an inter-organization agreement, and UN Women agreed to release the Applicant on secondment in accordance with the Inter-Organization Agreement. Therefore, the terms and conditions of the Inter-Organization Agreement apply in this case. Under the Inter-Organization Agreement, the Applicant had the rights of employment upon her return from secondment, which means that she had the right and the obligation to resume work at UN Women upon return from her secondment. Such rights were not respected when she was forced...

A very basic tenet of due process in a disciplinary case is that each of the relevant facts and allegations of misconduct must be presented to the accused person in such manner that s/he can easily understand them and is thereby afforded a fair and just opportunity to defend herself/himself. If not, the Administration cannot subsequently sanction a staff member against the backdrop of any such fact and/or allegation (in line herewith, see ST/AI/2017/1 (Unsatisfactory conduct, investigations and the disciplinary process), in particular para. 8.3). Further, this is a matter of access to justice...

The Tribunal concluded that the Respondent had substantiated with clear and convincing evidence the factual basis of the contested decision. The mere fact that the Applicant had knowingly submitted unauthentic invoices and receipts to Cigna, that action consitituted a violation of staff regulation 1.2(b) and amounted to misconduct. The sanction letter dated 8 March 2019 demonstrated that the Administration had undertaken a proper consideration of the nature of the Applicant¡¯s actions as well as the mitigating and aggravating factors of the case. Accordingly, the disciplinary measure of...