51ÁÔÆæ

There is no evidence on the record that the mandatory procedure established in secs. 9, 10, 15 and 16 of ST/AI/400 for separation by abandonment of post was followed in the Applicant¡¯s case. The Administration did not act fairly and transparently with the Applicant. DSS lead the Applicant to believe that it was still considering granting him a SLWOP, while, at the same time, it recommended the non-extension of his fixed-term appointment due to his unauthorized absence on the other. That the non-renewal decision following the expiration of the Applicant¡¯s contract, constitutes a separation...

Receivability The Respondent challenged the receivability ratione materiae of the application, arguing that the final administrative decision was notified to the Applicant on 24 November 2016. The Tribunal found that no final decision had been taken on 24 November 2016, and that the matter was being further reviewed, on the basis of new elements and discussions, inter alia, with the President of ICTY. Therefore, by filing her request for management evaluation on 21 January 2017, against the communication of 29 November 2016 denying her release, the Applicant respected the statutory deadline of...

An assault on a co-worker in connection with work constitutes misconduct, no matter the type of contract or appointment. The direct evidence from written statements, confirmed by strong circumstantial evidence adduced both in the investigation and at the hearing, taken cumulatively constitute a clear and convincing concatenation of evidence establishing, with a high degree of probability, that the alleged misconduct in fact occurred. In the Applicant¡¯s case, whereas the Tribunal would not be inclined to rely heavily on ¡°character witnesses¡± heard rather selectively, the mere fact that the...

HLIS acted fairly and transparently in advising the Applicant that she had to update her mailing address to receive her insurance card and did not act in a negligent manner. The applicable law does not allow a retroactive termination of the enrollment in the United Nations Headquarters-administered insurance programme outside of the annual campaign. There was no legal basis for the retroactive cancellation of the Applicant¡¯s enrollment in the United Nations Headquartersadministered insurance programme and reimbursement of the premiums and thus there was no legal basis for any other...

The Applicant¡¯s actions were reasonable and in accordance with her obligation to carefully verify the cost of administrative services, procurement and logistical support, since all the costs were supported by UNAMI, in order to ensure that all the provisions of the OIOS Audit Manual were respected. There was no concrete negative result on the planned audit resulting from the annulment of the first MOP and that the Applicant¡¯s actions, which she was taking in her capacity as CMS in UNAMI, consisting in a careful review of the alternative means to a face-to-face visit which could have resulted...

The contested decision was imposed on the Applicant after finding that there was clear and convincing evidence that the Applicant threatened to kill other staff members in the Afghanistan Country Office. The crux of the Applicant¡¯s case was that the facts were not established through clear and convincing evidence as the witnesses present during the alleged threats provided inconsistent testimonies, and the evidence was not properly collected and, consequently, was unreliable. Whether the investigation was vitiated by procedural flaws Having reviewed the whole investigation file, which was not...

The decision did not adversely affect the Applicant The Tribunal referred to its judgment Featherstone UNDT/2015/117 whereby, inter alia, the decision denying the Applicant a conversion of her fixed-term appointment to a permanent appointment was rescinded and the case was remanded to the ASG/OHRM for retroactive individualized consideration of the Applicant¡¯s suitability for conversion of her appointment to a permanent one as mandated by ST/SGB/2009/10. The Tribunal was satisfied that by the decision of 17 November 2016 (the contested decision), the Organization complied with the terms of...

It was not disputed that the procedural flaws identified by Judgment Rodriguez-Viquez UNDT/2016/030 in respect of the Second Round of the 2013 Promotions Session for candidates for promotion to the P-5 level also vitiated the consideration of candidates to the D-1 level and thus impacted on the Applicant¡¯s chances to be promoted. The Tribunal noted that it was difficult to ascertain the chances that the Applicant had to be promoted but it was uncontested that they were significant. The Tribunal thus rescinded the contested decision. The Tribunal referred to Rodriguez-Viquez whereby the...

The context of the impugned decision was important because it was central to the Applicant¡¯s case that the decision to exclude her from the comparative review exercise which led to her separation, was made in bad faith, and that it stemmed from the conflict surrounding the decision to transfer her from the CAS Office to the Supply Section. The Applicant¡¯s case was that she was unlawfully excluded from the comparative review pool for Warehouse Assistants. The Applicant was transferred to the Supply Section despite her repeated protests and the explanation given was that the move was made to...

The Tribunal had to determine whether a valid contract existed between the Applicant and UNISFA, and, in the affirmative, whether the decision not to proceed with his on-boarding was illegal. The Tribunal considered that for the conditions of Gabaldon to apply, it is necessary that the offer of employment extended to a candidate be based on a selection decision made by the person disposing of the relevant delegated authority. Legal framework for delegation of authority to make the selection decision The Tribunal was of the view that at the time of the contested decision in accordance with the...

The Tribunal noted that art. 12.3 of its Statute and art. 30 of its Rules of Procedure limit the scope of applications for interpretation to judgments. Neither the Tribunal¡¯s Statute nor its Rules of Procedure contemplate applications for interpretation with respect to orders. The Tribunal therefore found that the present application was not receivable ratione materiae.

The Tribunal noted that the Applicant, an individual contractor, did not fall under any of the categories of potential applicants under art. 3.1 of its Statute. Noting that individual contractors are not staff members, the Tribunal found that the Applicant had no legal standing and, consequently, that the application was not receivable ratione personae.

The Tribunal concluded that the decision to separate the Applicant was discriminatory, constituted abuse of authority and was therefore unlawful because of the apparent bad faith on the part of the Applicant¡¯s supervisor in initiating and concluding a new recruitment contrary to the Civilian Staffing Review recommendation, and her unauthorized nationalization of the Applicant¡¯s post one year before the approved date. To ensure the Applicant¡¯s continuity of service when decisions are being made about her eligibility for a continuing appointment and after service health insurance, the Tribunal...

The Tribunal finds that since the Applicant¡¯s EOD into the United Nations common system is 10 October 2005, the Administration used the incorrect EOD date for the calculation of the termination indemnity due to the Applicant. Therefore, the contested decision is unlawful and stands to be rescinded. The Tribunal finds that the Applicant has placed no evidence whatsoever, illustrating any discriminatory treatment against him. On the contrary, the record indicates that the Respondent took measures to ensure that the Applicant did not suffer hardship following his separation from service by...

To determine the legality of the contested decision, the Tribunal examined: Whether the first PIP complied with the applicable rules The Tribunal found that the duty to inform the Applicant of his shortcomings and to assist him in improving his performance was fulfilled by his supervisors, particularly the FRO. The documentary evidence and the testimonies during the hearing showed that the Applicant was made aware early on and on different occasions of his performance shortcomings and confronted with them. Efforts were also made to clarify the goals to achieve and to provide support to the...

UNAT considered the Appellant¡¯s appeal. As a preliminary matter, UNAT refused the Appellant¡¯s Motion for Leave to File Additional Pleadings. UNAT referred to Article 3(1) of the RoP and Section II. A. 3 of Practice Decision No. 1 of the Appeals Tribunal, which provides that it may grant such a motion only if there are exceptional circumstances. UNAT held that the Appellant did not demonstrate any exceptional circumstances in the present case. UNAT also referred to the transitional measures provided by General Assembly Resolution 63/253 and Article 2(7) of the UNDT Statute, which notes that...

UNAT considered an appeal by the Commissioner-General. UNAT held that the Commissioner-General¡¯s appeal was not time-barred and was, therefore, receivable. UNAT found that no request for compensation for loss of earnings (salary) had been made. Accordingly, UNAT held that UNRWA DT did not have jurisdiction to award compensation for loss of earnings. UNAT held that any financial loss appears to be generated as the main cause and directly by the Director of UNRWA Affairs, Lebanon¡¯s (DUA/L) decision to cancel the secondment and that this decision was found to be lawful by the UNRWA DT and that...

UNAT considered an appeal by the staff member arguing that UNDT erred in not awarding compensation in lieu of remand to ABCC as an alternative remedy. UNAT found no error in the UNDT judgment not awarding in-lieu compensation. UNAT held that since the Secretary-General concurred with the remand in question, the claim became moot. UNAT held that a claim of gross negligence against the Administration is a separate action that could not be included in this claim. UNAT held that the Appellant had not demonstrated that the delay had any impact on her physical or mental well-being, rejecting her...

On appeal by the Secretary-General, UNAT found that UNDT erred in fact and in law in its finding that the facts of misconduct were not established by clear and convincing evidence. UNAT noted that a proper consideration of the whole of the evidence could only have led to one conclusion, and that is that the individual assaulted the victim. UNAT found that UNDT did not consider the evidence objectively, specifically by giving misplaced importance to minor inconsistencies, coming to unreasonable conclusions on the facts which were not supported by the evidence, and making speculations instead of...

UNAT considered the Secretary-General's appeal and the staff members¡¯ cross-appeal. UNAT first considered the receivability of the appeal and held that the applications were receivable because the contested decision would have an adverse impact on the staff members. With respect to the merits of the appeal, UNAT noted that the salary entitlements of staff members are statutory in nature and may be unilaterally amended by the General Assembly. UNAT further noted that an individual loss caused by a unilateral variation of a validly concluded contract poses no legal obstacle to the exercise of...