51ÁÔÆæ

UNAT considered the Secretary-General¡¯s appeal. UNAT noted that UNDT did not find that the Applicant was distressed by UNHCR¡¯s illegal conduct or that he had suffered any adverse consequences or harm from UNHCR¡¯s procedural error in following the opinion of DSS. UNAT held that UNDT had exceeded its competence and made an error in law in awarding compensation to the staff member since he had not suffered pecuniary loss or distress and was not harmed by the illegal conduct. UNAT upheld the appeal and reversed the UNDT judgment regarding the award of damages to the staff member.

Delegation of authority: Any withdrawal or limitation of the delegation of authority must be explicit. In the absence of a clear and formal revocation of the delegation by the delegating authority, the decision taken by the delegating authority is tainted by a substantial procedural flaw¡ªthat of the lack of competence of the decision-maker.Legal certainty and application of administrative issuances: ST/SGB/2009/10 does not provide for transitional measures in situations, such as the instant case, where an eligible staff member is assigned to a different department or office between the time...

Management evaluation: The Tribunal can only suspend an administrative decision that is subject to an ongoing management evaluation.Cancellation of vacancy announcements are administrative decisions that have been implemented and therefore can not be subject of a suspension of action application. The Applicant had not sought management evaluation of the ongoing selection process as such the Tribunal found that it could not be subject to a suspension of action application.

The Applicant¡¯s reassignment to ONUCI was frustrated by the force majeure, the outbreak of violence in C?te d¡¯Ivoire and this event was beyond the control of the Administration. There were no exceptional circumstances that would have justified placing the Applicant on special leave with full pay between 1 July 2011 and 6 December 2011.The Applicant was lawfully placed on SLWOP upon the expiry of his provisional reassignment to ONUCI. The Applicant is not entitled to any relief for the delay in receiving certain written tests as a result of the disconnection of his UN webmail address. However...

Management evaluation: The Applicant requested management evaluation of each of the administrative decisions that he challenged before the Tribunal. Mediation: the Tribunal found that mediation was sought by the Respondent regarding the proposed disciplinary measure of demotion but the discussion between the Applicant and the ombudsman, went beyond the scope of the demotion. Mediation was sought within the deadline for filing the Application. The time for filling an Application starts from the date when mediation breaks down therefore the application was filed within the applicable time limits...

Administration¡¯s withdrawal of unlawful individual administrative decisions which created rights: Staff rule 11.2 not only permits but actually requires the Administration to revoke an administrative decision that it considers unlawful. However, the power to revoke decisions conferring rights should necessarily be exercised within the relevant time frame to respond to a request for management evaluation. Irreparable damage: Where the injury alleged is only hypothetical, it may not be regarded as ¡°irreparable¡± within the meaning of article 2.2 of the Statute in the context of an application for...

Receivability of application for suspension of action pending management evaluation: It results from article 2.2 of the Tribunal¡¯s Statute that the Tribunal is not in a position to rule on an application for suspension of action, pending management evaluation, on a decision, if copies of the decision in question or the request for management evaluation have not been submitted. Compliance with orders: A party to a proceeding has a duty 51ÁÔÆæ an order of the Tribunal and particularly an interlocutory case management order pursuant to Article 19. To persist in disobeying such orders...

Receivability ratione materiae of application for suspension of action pending management evaluation: In order for the Tribunal to act upon an application for suspension of action submitted pursuant to article 2.2 of its Statute, an ¡°administrative decision¡± must be at issue. According to the Tribunal¡¯s case law, a challengeable administrative decision is a decision taken by the Administration which carries direct legal consequences in respect of the applicant¡¯s rights under the terms of his or her appointment or contract of employment.

Receivability of application for suspension of action pending management evaluation: It results from article 2.2 of the Tribunal¡¯s Statute read in conjunction with staff rule 11.2(c) that a request for suspension of action during the pendency of the management evaluation may only be receivable if the request for management evaluation has been submitted in due time.

Receivability ratione materiae of application for suspension of action pending management evaluation: In order for the Tribunal to act upon an application for suspension of action submitted pursuant to article 2.2 of its Statute, an ¡°administrative decision¡± must be at issue. According to the Tribunal¡¯s case law, a challengeable administrative decision is a decision taken by the Administration which carries direct legal consequences in respect of the applicant¡¯s rights under the terms of his or her appointment or contract of employment.

The UNDT found that the decision to summarily dismiss the Applicant was wrongful. Assault: A charge of assault is a criminal charge and it was not within UNICEF competence to investigate a criminal offence or a tort alleged to have been committed. Identification of staff members: The Tribunal took judicial notice of the fact that when an international staff member finds him or herself facing an imminent threat of physical harm or is placed in some other peculiar position especially in a foreign country, it is reasonable to identify oneself as a UN Staff Member. Sexual harassment: It is unusual...

Judge Meeran handled the case since Judge Kaman issued the judgment on the last day of her tenure with the Dispute Tribunal. The Tribunal found that the only conclusion, which could sensibly have been drawn from the fact that UNDT/2011/124 did not address the claim in explicit terms was that either Judge Kaman considered it implicitly covered in the findings or alternatively she overlooked it in her final conclusions on remedies. To the extent that it may have been an oversight, on the basis of a full examination of the record and the judgments, Judge Meeran ordered that Judge Kaman had...

The Tribunal held that the delay by the Respondent without reason was a ¡®manifest abuse of the proceedings¡¯ which entitled the Applicant to an award of costs. In light of said delays by the Respondent the Tribunal awarded the Applicant interest from the date of wrongful separation until the payment of compensation, and for the moral damages award, interest from the date of award by the JAB. The Tribunal held that as there is no practical difference between the terms ¡®net¡¯ and ¡®net base¡¯ pay, the Applicant is not entitled to the additional payments which amount to the ¡®gross¡¯ sum of his salary...

The Applicant made a range of vague references to different circumstances surrounding the question of the closing of her complaint regarding harassment and abuse of authority, but failed to clearly define any other contested administrative decisions. The Tribunal therefore finds that the only issue properly before it as that concerning the decision of the Director to dismiss the Applicant¡¯s appeal regarding harassment and abuse of authority in accepting the findings of the OIA.

Obligation to consult the staff member affected by a decision to discontinue his/her post: In view of the importance, for the staff member concerned, of the decision to discontinue his/her post, the Tribunal strictly interprets the procedural obligation to consult the affected staff member.

The UNDT found no grounds for excusing the Applicant from his obligation to first request management evaluation before filing his application with the Dispute Tribunal.

The Tribunal found that no interim relief could be ordered either under art. 2.2 or art. 10.2 of its Statute. No management evaluation was ongoing at the time of the application and thus no suspension of action could be ordered under art. 2.2 of the Statute. Further, as no application on the merits under art. 2.1 of the Statute has been filed by the Applicant, no interim relief could be ordered under art. 10.2 of the Statute. The Tribunal noted that, even if the Applicant filed an application on the merits under art. 2.1 of the Statute in addition to the present application for suspension of...

In this case, the Applicant is a permanent staff member who contested the selection decision of a candidate other than her, as well as her non-selection, for the Post. The application before the Tribunal was filed on 8 April 2012 which is within 90 days following her receipt of the MEU¡¯s 23 March 2012 decision. However, seeing that the initial request for management evaluation was time-barred it has no legal effect and the application before the Tribunal is therefore not receivable.

Whether the decision being contested is the one taken by OHRM to separate the Applicant from service, or the earlier decision taken by UNSPC, or the pending decision of the ABCC, there is currently no case that is pending management evaluation. There is also no substantive application before the Tribunal in relation to which this request for interim relief could be considered. In any event, art. 10.2 of the Dispute Tribunal¡¯s Statute provides that a suspension of the implementation of the contested administrative decision may not be granted in cases of termination, which includes separation...

Appealable administrative decision: Both the determination that a ruling on a request for recusal should be issued in the form of an order or of a judgment and the decision to publish such rulings on the Tribunal¡¯s website are matters of internal organization which do not constitute acts adversely affecting staff members¡¯ rights.