51ÁÔÆæ

On receivability: Applying the test of Gabaldon, even though all the conditions of staff rule 4.8 had not been fulfilled, the Applicant had locus standi and was legitimately entitled to similar rights as those of staff members and that the Organization must be regarded as having extended to her the protection of its administration of justice system. She held a valid contract, the scope of which must be determined when other issues are considered. The reach and application of Gabaldon is indeed limited and does not entitle the Applicant to take full benefit of the Staff Regulations regarding...

The Tribunal dismissed the application as not receivable. The Tribunal found that the Applicant was a staff member of UNRWA and contested a decision that was taken by that agency. UNRWA did not fall under the jurisdiction of the UNDT nor did the Applicant fulfil the requirements of arts. 2.1(a) and 3 of the Statute of the UNDT. He therefore had no locus standi to challenge a decision of UNRWA before the Tribunal.

The allegations of soliciting and receiving money from several UNMISS International Individual Contractors (IICs) were proven by clear and convincing evidence and that the established facts legally amounted to misconduct under the staff regulation 1.2(g) and staff rule 1.2(k) because in 2014 and 2015, the Applicant solicited and/or accepted monetary payments from the IICs knowing that these payments were being made because of assistance he provided or was believed to have provided in his position as a finance assistant with the Organization. In the absence of a request for management...

The Tribunal held that the application for revision was manifestly inadimissable because the Applicant did not bring to the attention of the Tribunal the existence of any new decisive fact which was unknown to the Tribunal or to himself at the time Judgment No. UNDT/2016/059 was rendered. The issue of lack of investigation alleged by the Applicant was properly considered in Judgment No. UNDT/2016/059.

In the instant case, the Respondent showed that three available P-5 posts were identified as suitable to the Applicant¡¯s qualifications and experience and that he was invited to apply for them for consideration. If the Applicant had put a foot in the door by applying to any of them, then the next stage would have been for the Tribunal to examine whether UNFPA selected a non-permanent staff member above the qualified Applicant thus denying the Applicant of the protections afforded him by staff rules 9.6(e) and 13(d). Good faith efforts on both sides means that both parties cooperate to identify...

The Tribunal held that the Applicant¡¯s claims relating to the performance evaluation of his FRO and his SRO¡¯s theoretical negative influence of future performance appraisals to the Applicant¡¯s detriment were not receivable because they either did not form part of the terms and conditions of his employment or had no direct legal consequences on his terms and conditions of employment. With respect to the negative comments and rating of the SRO in his 2015-2016 e-PAS, the Tribunal noted the successful roll-back of the e-PAS and concluded that there no longer existed a live issue because he had...

The contested administrative decision was communicated to the Applicant on 9 August 2016. The Applicant had 60 days thereafter to request management evaluation. In other words, the Applicant had until 8 October 2016 to submit a management evaluation request. From the record, the Applicant requested management evaluation on 8 February 2017 and therefore did so out of time. It follows that the Applicant¡¯s claim was not receivable, and that the Tribunal had no jurisdiction to consider the respective contentions of the parties on the merits of the case.

The Tribunal carefully examined all the correspondence between the parties and was not persuaded by the Respondent¡¯s argument that the contested administrative decision was conclusively made and communicated to the Applicant on 28 June 2016. The Tribunal was of the view that the correspondence between the parties did not bear out the said argument and found that the Respondent had not apprised himself of all relevant facts on 28 June 2016 when he rejected the claim for an education grant and reimbursement of mother tongue tuition. In the prevailing circumstances, the Tribunal held that the...

Noting that the Applicant had conceded that his application was filed after the time limit set out in art. 8.1(d)(i)(b), the Tribunal concluded that the application was not receivable rationae temporis because the Applicant failed 51ÁÔÆæ the 90-day filing deadline set out in art. 8.1(d) of the UNDT Statute. The Tribunal then deliberated on the Applicant¡¯s assertion that his application is receivable because the interpretation of art. 8.1(d)(i)(b) is unfair to staff members as it favours an administration that has failed to address management evaluation requests in violation of staff...

Since there was no written agreement or any other signed document that clearly showed the Respondent¡¯s undertaking to pay the Applicant USD10, 790, the Tribunal determined whether there was an implied in-fact contract by examining the parties¡¯ intentions based on their conduct and other circumstances to establish if there was mutual assent and consideration. The Tribunal concluded that all the elements of a binding, valid and enforceable contract existed between the parties because: (i) there was mutual assent leading both parties to jointly inform the Tribunal that they had established the...

The Tribunal is required to factually find that the decision that is impugned before it is in the process of being administratively reviewed. A preliminary finding to this effect is a prerequisite for litigation before this Tribunal. The record before the Tribunal did not show that a request for management evaluation had been filed by the Applicant. The Applicant was given the opportunity to address this situation and correct it, but did not. The application therefore was found incompetent and the only option open to the Tribunal was to summarily dismiss it for want of management evaluation.

The Tribunal concluded that the Respondent failed to notify the Applicant of the overpayment and that this failure was a breach of its obligation under section 2.3 of ST/AI/2009/1. Although the Applicant failed to report the overpayment, the Tribunal found that he was not negligent in his duty to report because he was caught up in a perilous security situation at the time he received his pay slip at the end of November 2015, which may have caused him to not advise the Respondent of the overpayment. The Tribunal noted further that ST/AI/2009/1 does not make the Respondent¡¯s obligation to notify...

The Tribunal held that MONUSCO¡¯s 17 October 2014 inter-office memorandum unambiguously informed the Applicant of the mission¡¯s decision to end his appointment, which at this point was a continuing appointment, by separating him from service on 24 October 2014. The Tribunal held that the 17 October 2014 inter-office memorandum was an administrative decision because it had a direct and adverse impact on the Applicant¡¯s contractual status and had direct legal consequences for him. The Tribunal concluded that the FPD/DFS response of 31 October 2016 was a reiteration of the 17 October 2014 decision...

After being presented with the allegations of misconduct on 9 July 2014, the Applicant responded on 21 August 2014. The decision to impose a disciplinary sanction on the Applicant was communicated to him on 4 December 2014. Thus, a review of the entire case against the Applicant and communicating to him of the outcome took a little over three months. This time frame was not unreasonable and did not constitute a breach of due process. On the facts before the Tribunal, the Applicant did not adduce any evidence to give the Tribunal a basis for reviewing the Secretary-General¡¯s exercise of...

The Tribunal concluded that the application was generally not receivable because the Applicant was specifically challenging MEU¡¯s negative responses to her various requests for management evalution. This conclusion nothwithstanding, the Tribunal reviewed each of the Applicant¡¯s claims and concluded that they were not receivable because she: failed to identify an administrative decision within the meaning of art. 2.1(a) of the UNDT Statute in relation to her claim that there was a ¡°wall of silence¡± was estopped from re-litigating her claim in relation to the delay in releasing the results of...

The application was receivable because there was a reviewable administrative decision stemming from the SRO¡¯s negative comments and rating in the Applicant¡¯s performance appraisal because the Applicant was granted only a six-month contract instead of the one year appointment that he was granted when he initially entered on duty with UNSMIL. Thus, the SRO¡¯s comments had direct legal consequences for the Applicant in that he ended up with a shorter term of appointment. Although the Respondent had made assurances to the Applicant that the 2015-2016 e- PAS would be rolled back and re-created, his...

The Applicant failed 51ÁÔÆæ art. 8.1(d)(ii) of the UNDT Statute, because he did not file his application until more than one year after the 90-day statutory deadline. The Tribunal held that the application was time-barred due to the Applicant¡¯s failure to file his application within the established time limits. The Tribunal also held that the Applicant failed to articulate any exceptional circumstances justifying the delay.

The Applicant submitted that his initial ¡°informal¡± enquiries into a possible review of his retirement age only began in July 2016, and that his first formal query of the date was not until 13 August 2016. It was difficult to imagine why the Applicant never thought to query the applicable position, or seek to have the mandatory retirement age in respect of himself reviewed, until five months before he was actually due to retire. Indeed, the Applicant had not sought to even challenge any of the Respondent¡¯s submissions on receivability. While the Tribunal appreciated that a self-represented...

The Applicant was informed in February 2007 that his promotion must follow a competitive recruitment process. The contention that he should have been promoted to the G-5 level at the time could and should have been challenged when the Applicant received formal notification of his retroactive promotion in October/November 2007. He did not. He also did not challenge the Respondent¡¯s letter of 6 May 2015.

The failure to consider the Applicant¡¯s e-PAS reports and to address them especially in the context of the disparity between its ratings and those of the Applicant¡¯s reporting officers on the same competencies and within the same organization was a serious flaw in the selection process. UNDT was satisfied that the panel met its requirement of asking probing questions, even if the report reflected it as ¡°prompting¡± rather than ¡°probing.¡± The absence of an ex-officio member on the assessment/interview panel by itself could not vitiate the selection exercise. The Applicant¡¯s candidacy for the...