51ÁÔÆæ

The facts in support of both counts leveled against the Applicant (count 1: creating a hostile, offensive and humiliating work environment for one staff member and count 2: abuse of authority concerning the recruitment and employment of a consultant) have been established in the case at hand not only by preponderance of evidence, the applicable threshold, but also by clear and convincing evidence. The established facts were in violation of the applicable legal framework, namely ST/SGB/2008/5 and ST/AI/2013/4. Cases involving the creation of a hostile and offensive work environment have...

The record is clear that the Applicant first came to the Tribunal on 24 February 2020, after 90 days from the date he was notified of the contested decision. Time limits for formal contestations are to be strictly enforced, a day late is by no means de minimis. The UNDT has no discretion to waive the applicable deadlines.

Having examined the evidence on file, particularly the panel¡¯s investigation report and its annexes, the Tribunal is satisfied that OHCHR properly handled the Applicant¡¯s complaint against his FRO, and that the case record fully supports the reasonableness of the decision not to initiate disciplinary proceedings against said FRO. The Tribunal further observes that the Applicant¡¯s due process rights as set forth in ST/SGB/2008/5 and ST/AI/2017/1 were respected. The Applicant was inter alia interviewed and given an opportunity to provide his version of events and informed of the outcome of his...

Scope of judicial review The Applicant only challenged the dismissal of his complaint against his FRO and SRO by way of management evaluation. Recalling the general requirement of staff rule 11.2(a), the Tribunal will limit its scope of judicial review to the decision not to investigate the Applicant¡¯s complaint against his FRO and SRO. The Tribunal does not have jurisdiction to consider appeals against the MEU¡¯s responses to the Applicant¡¯s request for management evaluation. Therefore, it will not adjudicate the Applicant¡¯s arguments against the MEU¡¯s responses to his request for management...

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.

UNDT held that the Applicant¡¯s due process rights were respected because she was afforded the opportunity to provide comments related to the administrative measures applied at every step of the process and was represented by Counsel. She also did not challenge the adversarial examination of the allegations that was undertaken. UNDT found that the facts in support of the administrative measures imposed were established as per the applicable standard of proof. UNDT held that the administrative measures imposed on the Applicant were rational and proportionate to the established facts, as well as...

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.

Whether the Applicant¡¯s performance was managed or evaluated in a fair and objective manner The Tribunal notes that the Applicant has adduced evidence of possible bias and lack of objectivity in the evaluation of his performance by the FRO and the SRO¡­ Even assuming that the FRO and the SRO evaluated the Applicant¡¯s performance in a fair and an objective manner, they certainly failed to ¡°proactively assist¡± the Applicant to remedy his performance shortcomings in accordance with section 10.1 of ST/AI/2010/5. Moreover, the undisputed interpersonal issues between the Applicant and his FRO have...

UNDT found that at the earliest, the deadline to request management evaluation started to run on 22 August 2019 and expired on 21 October 2019. UNDT held that the Applicant¡¯s 18 October 2019 request for management evaluation was timely and that her application was receivable. UNDT further held that the decision to pay the Applicant¡¯s repatriation grant at the single rate was in accordance with the UNDP Policy as well as Annex IV to the Staff Regulations and Rules of the United Nations and was lawful. UNDT rejected the application in its entirety.

UNDT denied the Applicant¡¯s motion in which he sought the disclosure of an extensive amount of additional documents, as it was filed after the end of the collection of evidence and after the submissions of closing statements. UNDT held that the contested non-renewal decision was unlawful because the provided reason for it, namely lack of funding, was not based on correct facts. It was therefore not necessary for UNDT to examine whether the decision was tainted by ulterior motives, as also argued by the Applicant. UNDT held that the most appropriate remedy for the Applicant would be rescission...

UNDT found that the Applicant did not contest the non-renewal of her fixed-term appointment, and held that the application was admissible as the Applicant properly requested management evaluation of the decision related to her non-selection. UNDT noted that the recruitment process was conducted in accordance with the UNDP¡¯s Recruitment and Selection Policy. UNDT held that the Applicant was given full consideration in the selection process, and that her experience in the United Nations as well as her status as a staff member of the RCO in Turkey was properly recorded in the corporate panel...

Whether the application is receivable The Tribunal considers that the issues concerning the eligibility of SPA and the timeliness of its request are questions for the merits and have no bearing on receivability. Thus, the core receivability issue before the Tribunal is whether the contested decision falls within the scope of art. 2.1(a) of its Statute. The Tribunal is of the view that the contested decision fulfils the test of Andronov. It has been ¡°shown to adversely affect the rights or expectations of the staff member¡± (see Michaud 2017-UNAT-761, para. 50), and thus has a direct legal...

The Applicant¡¯s appointment rested with the Human Resources Section and not the DMS, the mere recommendation by the latter of extension of the contract did not constitute a firm commitment for the Organization under the applicable jurisprudence, nor did the extension of his ground pass, which is a mere organizational permission. Therefore, the Tribunal finds that the Applicant did not have a legitimate expectation of renewal of his fixed-term appointment. The Applicant¡¯s post was among those whose unique function was to be abolished in the affected unit and therefore, deemed to be a ¡°dry cut¡±...

The Applicant, as the aggrieved individual, was entitled to be informed of the outcome of the investigation and the action taken pursuant to sec. 5.18(c) of ST/SGB/2008/5. Section 5.18(c) of ST/SGB/2008/5 cannot be read as providing a mere right to be informed of the outcome of the investigation and of the action taken, but must be interpreted as providing a right to the aggrieved staff member that a disciplinary process be started unless exceptional circumstances arise. In the present case, the person to be disciplined was no longer a staff member, and the parties disagreed on whether the...

The Tribunal finds that the Applicant¡¯s request for management evaluation on 24?July?2019 was time-barred, and thus the present application is not receivable ratione materiae.

The Applicant, a UNHCR staff member in between assignments (¡°SIBA¡±), was placed on SLWOP after having exhausted a nine-month period on Special Leave With Full Pay (¡°SLWFP¡±). The Tribunal reviewed the legality of the contested decision in light of the arguments put forward by the Applicant. Is the contested decision consistent with staff rule 5.3? The Tribunal found that the circumstances for the placement of SIBAs on SLWOP are per se exceptional and, consequently, the text of para. 139 of the RAAI is consistent with staff rule 5.3. Staff rule 5.3(f) sets the general principle that a staff...

Have the facts on which the disciplinary measure was based been established? The evidence on record, including the investigation report, the coherent hearsay evidence pointing to a pattern of behaviour, the consistency of the witness statements, the Applicant¡¯s contradictory statements, and the inherent probabilities of the situation in the working and living conditions, cumulatively constitute a clear and convincing concatenation of evidence establishing, with a high degree of probability, the acts of sexual harassment. Do the established facts legally amount to misconduct? The Tribunal finds...

The Applicant failed to indicate a specific date and content of the challenged administrative decision, as she only recalled an email from the Deputy Director, ID/OIOS, which would purportedly confirm an evaluation of insufficiency of the Applicant¡¯s investigatory experience to be recruited for the advertised post. The Tribunal, having considered the above-quoted content of the email, finds it insufficient to substantiate an administrative decision of definitive exclusion of the Applicant from the selection process. It remains, however, that the Applicant was not called for an interview and...

The Tribunal finds that the mere fact that the Applicant was not invited to a competencybased interview following the written assessment did not give rise to an administrative decision, and that such a step of the selection process may only be challenged in the context of an application against a specific decision with clear and direct legal consequences on the Applicant, such as the final selection decision. The Tribunal has accepted in the past that certain intermediate decisions in a selection process¡ªsuch as when a candidate is found not suitable/ineligible for a given post¡ª constitute...

The Tribunal finds that the mere fact that the Applicant was not invited to a competencybased interview following the written assessment did not give rise to an administrative decision, and that such a step of the selection process may only be challenged in the context of an application against a specific decision with clear and direct legal consequences on the Applicant, such as the final selection decision. The Tribunal has accepted in the past that certain intermediate decisions in a selection process¡ªsuch as when a candidate is found not suitable/ineligible for a given post¡ª constitute...