51ÁÔÆæ

The Tribunal rejects the Applicant¡¯s request for a joinder of both cases and it dismisses this case as moot.

Receivability ratione materiae: The Tribunal has jurisdiction to review the Administration¡¯s actions and omissions following a request for investigation submitted pursuant to ST/SGB/2008/5. Definition of harassment: Disagreements on work performance and other work-related issues are per se not excluded from the definition of harassment, and thus from the scope of ST/SGB/2008/5. Requirements to initiate an investigation and standard in appraising them: Section 5.14 of ST/SGB/2008/5 provides for two general criteria for the purpose of launching a fact-finding investigation: (1) that the formal...

Fixed-term appointments of short and long duration: The distinction made by UNHCR between fixed-term appointments of long duration¡ªi.e., fixed-term appointments of one year or more granted further to a competitive selection process, based on the advice of an Appointments, Postings and Promotions body¡ªand fixed-term appointments of short duration¡ªi.e., fixed-term appointments of less than a year granted without a competitive selection process and not endorsed by an Appointments, Postings and Promotions body¡ªhas its legal foundation in staff regulation 4.3 and staff rule 4.15 (and former staff...

Legal representation: An applicant may be represented by counsel before the Tribunal provided the requirements of art. 8.2(c) and art. 12 of the Rules of Procedure are met; in particular, the applicant must formally authorize counsel to represent him/her and adequate information must be provided to the Tribunal on the good standing of counsel. Preparatory decisions: According to well-settled case law of the Dispute Tribunal, preparatory decisions are not subject to appeal. They may only be challenged in the context of an appeal against the final decision.

Management evaluation: Pursuant to well-settled case law of the Dispute Tribunal and the Appeals Tribunal, requests for administrative review or management evaluation are mandatory first steps in the appeal process. Improper motives: The onus is on the applicant to provide sufficient evidence that the contested decision was tainted by improper motives.

Categories of candidates: The staff selection system established in ST/AI/2006/3/Rev.1 was based on a rigid hierarchy of three categories of candidates in terms of priority consideration: 15, 30 and 60-day mark candidates. If a candidate belonged to a priority category he or she was excluded from the less priority ones. Internal, non-internal and external candidates: ST/AI/2006/3/Rev.1 distinguished between: (1) internal candidates, strictly defined in section 1; (2) non-internal candidates, comprising staff members who did not fall within this definition; and (3) external candidates, those...

STL staff members are not United Nations staff members and thus do not have access to the Tribunal.

Administrative decision: The essential element of an appeal is that there is a contested and appealable ¡°administrative decision¡±. ¡°Conduct¡± is not an administrative decision subject to appeal pursuant to article 8.1(a) of the Tribunal¡¯s Statute. Preparatory decision: Preparatory decisions do not affect the scope or extent of an applicant¡¯s rights and are therefore not subject to appeal. Management evaluation: A request for management evaluation is a necessary step in the appeal process. While the findings of a management evaluation do not form an independent administrative decision subject to...

Effect of reversal of decision on compensation: Because the contested decision was reversed by the Administration does not necessarily mean that the applicant is not entitled to claim compensation for the damage s/he may have suffered as a result of the unlawful decision. In a case where the Administration reversed the contested decision at the management evaluation stage, if an applicant can prove that s/he still sustains or sustained an injury resulting from the unlawful decision despite the rescission of the same, s/he has grounds for claiming compensation.Outcome:

Compensation under Appendix D as opposed to liability for a breach of terms of appointment/contractual obligations: Appendix D to the Staff Rules sets a regime of objective responsibility in the event of death, injury or illness attributable to the performance of official duties on behalf of the United Nations, by which the Organization is to afford compensation regardless of whether it bears any fault in the matter. Where the compensation claimed by a staff member is compensation that relates to a violation of one of the terms of the staff member¡¯s employment or is contractual in nature...

Organization of work and discretion of the Secretary-General: The Secretary-General has wide discretion in the organization of work. It is not for the Tribunal to substitute its own views to that of the Secretary-General on how to organize work and meet operational needs. Decisions in this sphere may be set aside only on limited grounds, for example if the competent authorities breached procedural rules, or if discretion was exercised in an arbitrary, capricious, or illegal manner.Eligibility for consideration for conversion to permanent appointment: Pursuant to provisional staff Rules13.4 (b)...

Demotion: A demotion is not a purely financial disciplinary measure, unlike a fine or loss of steps. It also carries a stigma and a loss of responsibilities. Discretion of the Secretary-General in disciplinary matters: Due deference must be shown to the Secretary-General¡¯s choice of the appropriate disciplinary measure. Establishment of charges: If the disciplinary measure is justified with respect to the established facts in relation to a certain charge, it is not necessary to determine whether additional charges are also established. Violation of due process rights and compensation: Not...

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 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...

Consultations: ¡°Consultation with the appropriate staff representative bodies¡± does not mean that for an administrative instruction to enter into force, it must necessarily meet the agreement of the staff representatives.Acquired right: An acquired right is breached only when an amendment adversely affects the balance of contractual obligations by altering fundamental or essential terms of employment.Irreparable damage: Mere financial loss is not enough to satisfy the test of irreparable damage. Harm to professional reputation and career prospects, or harm to health, or sudden loss of...

The Tribunal found the application irreceivable on the basis that: (1) the decision of 28 April 2011 was not an appealable administrative decision; (2) the Tribunal was not competent to examine the legality of the subsequent decision on the Applicant¡¯s eligibility for consideration for conversion because she did not request management evaluation of this decision; and (3) even assuming that the decision of 28 April 2011 was an administrative decision subject to appeal, it was merely a confirmative decision and the Applicant did not contest it within the mandatory time limits as the initial...

The Tribunal found that the application was receivable. The contested decision had not yet been implemented, as the head of the department had simply communicated by phone his selection to the successful candidate and the latter had merely sent an email expressing his ¡°great interest¡± in the job. The Tribunal found that this did not amount to an official offer by the Administration followed by an unconditional acceptance by the candidate. The Tribunal considered that the impending appointment of the successful candidate conferred urgency to the matter; that the contested decision, if...

Receivability/administrative decision: Preliminary decisions such as the choice of an appropriate basis for a staff member¡¯s performance appraisal do not have direct legal effects on his/her rights. They can only be reviewed within the context of the assessment of the final decision, that is, the outcome of the staff member¡¯s performance appraisal.Delegation of authority: A delegation of authority should not be guessed at or presumed. It must precede the taking of a decision and is not synonymous with retrospective rubberstamping.Classification of posts/generic job profiles: Section 2.2 of ST...

The fact that OSLA counsel have fulfilled in the past other functions within the Organization does not generally disqualify them from discharging their new duties. Outcome: Application rejected on the merits

The Tribunal took note of the fact that the management evaluation was completed on 29 September 2011, thus rendering moot the application for suspension of action filed on 28 September 2011. The application for suspension of action was thus rejected.