51ÁÔÆæ

Receivability: The Applicant¡¯s request for administrative review was made outside the mandatory time limit. In accordance with article 8.3 of the Dispute Tribunal¡¯s Statute, the Tribunal may not suspend or waive the deadlines in the Staff Rules concerning requests for administrative review or management evaluation. There is no basis in the former Staff Rules for finding that time to request an administrative review should only be calculated from the end of the involvement of the Ombudsperson. The terms of reference of the Joint Ombudsperson are inconsistent with the Staff Rules. The...

The application was dismissed in its entirety upon the resolution of the dispute by an agreement reached through mediation.

Receivability: The letter of November 2007 was sent before the contested decisions had been made. The Applicant thus cannot be appealing against those decisions. The letter of 4 March 2008 was sent by the Applicant within the required two-month period but it was not addressed to the Secretary-General. If this letter were properly filed with the Assistant Administrator of UNDP, in accordance with the practice of UNDP to conduct its own administrative review, it remains that this letter could not trigger an administrative review as the Applicant did not state in clear terms that she was...

Selection process: According to the APPB Procedural Guidelines, the APPB may recommend to the High Commissioner an eligible candidate who has not necessarily been proposed by the manager and the High Commissioner, in the exercise of his discretionary power, is not obliged to endorse the APPB recommendation and may appoint a staff member to a post provided s/he is eligible and her/his candidacy has been examined by the APPB. In the case at hand, the Applicant was not recommended by the Representative and this is the main reason for his non-appointment. The Tribunal has only a limited role in...

The Tribunal held that the Applicant had not raised a prima facie case as to warrant a suspension of action.

There was no evidence that established that the work place had become intimidating, hostile or offensive for the Complainant. The charge of sexual harassment cannot be sustained in the circumstances to the extent that the Complainant was a willing participant in sex talks in emails, via telephone, via text messages and in person. While it is recognised that a rebuttable presumption of law or fact may exist where a certain set of facts are present, there is definitely no room for making a legal finding based on presumptions about what would likely be the case in a given situation. It is a trite...

Method of interpretation: The interpretation of a statutory document proceeds first by establishing the plain meaning of the words in the context of the document as a whole. Only if the wording is ambiguous should the Tribunal have recourse to other documents or external sources to aid in the interpretation.Respondent¡¯s discretion in providing benefits: As a matter of principle, the Administration has no discretion in the granting of allowances but is bound to strictly apply the applicable rules.Outcome: Application rejected on the merits

The Tribunal found that the initial imposition of the reprimand was justified based on the Applicant¡¯s own admitted supervisory failings. However, the Tribunal found that the withdrawal and subsequent reinstatement of reprimand were improper, as was the decision to transfer the Applicant from his post. The Tribunal directed the parties to confer on the issue of compensation.

Management evaluation: Claims against decisions that have not been the subject of a request for management evaluation are not receivable before the Tribunal. An applicant may not seek any rulings or relief in relation to these decisions. The events surrounding them may be part of the factual matrix of the application but they are peripheral at best. Project document: There is no mandatory requirement in the rules or any Administrative Instructions for a project document to be finalised prior to the responsible staff member taking up the project post. Authority for lateral transfers under ST/AI...

UNDT held that the Applicants may amend their request for compensation as, in Order No. 104 (NY/2011) specifically called for updated submissions on compensation, under which UNDT thus granted leave for the Applicants¡¯ amended submissions. UNDT denied the compensation request for loss of opportunity to pursue the new P-4 level post created in ORES, as the Applicants did not present any evidence supporting their contention that they were denied this opportunity. UNDT awarded compensation for loss of chance/opportunity. UNDT listed the following significant factors: (a) the existence of numerous...

The Administration, on three separate occasions in 2000, determined that his post would remain classifiable at the P-3 level. In 2006, the Applicant made another request to have his post reclassified and a desk audit of the post was performed under ST/AI/1998/9, but the post remained classified at the P-3 level. The Applicant contended that the Respondent failed 51ÁÔÆæ the established procedures as set out in ST/AI/1998/9, including that the Applicant was not provided with available documentation to justify the decisions and that this effectively deprived him from filing a meaningful...

Receivability: Since the Applicant was a staff member of UNOG when the contested decision was taken, it indeed affected his terms of appointment. The Tribunal is thus competent to examine the case in accordance with article 2.1 of its Statute. Selection procedure: UNHCR based its decision on the advice of UNDSS which did not grant clearance to the Applicant¡¯s candidacy. However, UNHCR was not compelled to follow the advice of UNDSS concerning the candidacy of the Applicant because this practice is not codified in any legal text of regulatory character. Hence, the contested decision is illegal...

No expectancy of renewal. Fixed-term contracts, such as the Applicant¡¯s in the present case, do not carry an expectancy of renewal, but a decision not to renew a contract may not be tainted by ulterior motives or extraneous considerations and reasons must be properly be supported by facts. Exception. While exceptions to the staff rules may be made, an exception would not be justified in the Applicant¡¯s case, because the Post that the Applicant¡¯s appointment was budgeted against had been filled by another staff member on a regular contract. Accordingly, with the Post no longer being vacant, the...

Presumption of regularity. There is always a presumption that official acts have been regularly performed, but this presumption is rebuttable. If the Respondent is able to even minimally show that the Applicant¡¯s candidature was given a full and fair consideration, which he did not in the present case, then the presumption of law stands satisfied. Once a minimal showing has been made, the burden of proof thereafter shift to the Applicant, who need to show through clear and convincing evidence that he was denied a fair chance of promotion. Cancelling the first selection exercise and reissuing a...

Based on the JAB recommendation, the Secretary-General had previously awarded the Applicant the amount of USD23,400 (three months net base salary) in compensation for an error in the consideration of her academic qualifications during the selection process. The Tribunal found that, in addition to the above-mentioned error, a number of substantial procedural irregularities had tainted the selection process, including the fact that the Senior Review Group had failed to pre-approve the evaluation criteria as required by ST/AI/2002/4 and met without having developed and published its own...

UNDT noted that it had not received any application or correspondence from the Applicant after the outcome of his management evaluation request was received. UNDT closed the case for lack of prosecution.

Outcome: Applicant awarded: (1) six months¡¯ net base salary in effect at the time of the selection process mentioned herein, as non-pecuniary compensation for the substantial and unwarranted irregularities in the selection process; and (2) three months¡¯ net base pay in effect at the time of the selection process for the stress experienced by the Applicant that was causally related to the Applicant¡¯s loss of chance/loss of opportunity.

Time limits for requesting administrative review: Due to the pronouncement of the Appeals Tribunal in Costa, the Dispute Tribunal is unable to suspend or waive deadlines with respect to administrative review or management evaluation, irrespective of the circumstances of each case. Unless an appropriate case is put before the Appeals Tribunal and it decides to limit the seemingly absolute application of the pronouncements of Costa as it currently stands, this Tribunal is bound to follow them, even where sick leave or other intervening events would render filing impossible for an applicant...

Receivability of moot claims: Even before the Applicant submitted his application to the Tribunal, the Administration had extended the Applicant¡¯s contract beyond 30 April 2010 and it had informed him that his contract would be extended until the completion of his rebuttal. Accordingly, the application insofar as it concerns the decision to renew the Applicant¡¯s contract until 30 April 2010 was moot as at the date on which it was submitted to the Tribunal and it is therefore not receivable. Discretion of the Secretary-General in the organization of work: The Secretary-General enjoys broad...

The Tribunal held that the Programme Manager failed to consider the Applicant¡¯s candidacy at the 15-day mark as provided by ST/AI/2006/3. In this respect, the Tribunal noted that she was put in a pool with 30-day mark candidates and that most of these candidates were considered before she was. Additionally, the Tribunal found that the Applicant had not been fully and fairly considered because the Programme Manager and two of the Interview Panel members had deemed her unsuitable for the contested post prior to the commencement of the interview process. Since the Interview Panel failed to...