51ÁÔÆæ

UNDT held that, in light of Order No. 62 (NY/2010) and the subsequent lack of prosecution of the proceedings, there was no matter for adjudication before the Tribunal. UNDT closed the case without a determination of its merits.

The Tribunal held that the Applicant had not raised a prima facie case that the decision was arguably unlawful or that he would suffer irreparable damage from its implementation.

Receivability: Only the appeal of the compensation amount was receivable¡ªthe Respondent had already conceded to the selection processes being flawed, the Applicant¡¯s return to her liened post was not an administrative decision in itself, and the Applicant had defined a fourth decision too vaguely to give it any meaning. Compliance with orders: Lacking a response from Counsel for the Applicant to a written order, the Tribunal determined that, due to his failure 51ÁÔÆæ the order, by default the Tribunal would deem that the Applicant had agreed with the Respondent¡¯s contentions regarding...

Nature of misconduct charges: Although technically not criminal charges, a misconduct charge may carry overtones of criminal proceedings, where rights attendant to a fair trial attach. Equality of arms: equality of arms may be seen to be an indivisible element of a fair trial, requiring that a fair balance exist between parties involved in litigation. The principle warrants the assurance that each party to a dispute be able to prepare and present his or her case fully and adequately before the court.Outcome: The Tribunal found that the conditions of access proposed by the Respondent would...

The initial fact-finding investigation was fundamentally flawed, unreliable and a sham. The failure to conduct a proper investigation but to resort to arm-chair analysis and conclusions based on the unreliable initial fact-finding investigation was not only useless but constituted a violation of the provisions of ST/Al/371 and the Applicant's due process rights. The Preliminary Investigation Report is characterized by a lack of direct evidence from the alleged victims and a heavy reliance on second hand evidence made by third party witnesses. The IGO/Investigation Unit failed to establish...

Submissions on new issues after the trial, re-opening of litigation: Parties will not be permitted to re-open substantive litigation after the Tribunal has already rendered its judgment on liability and is dealing solely with the issue of compensation.The Tribunal will take into account the staff member¡¯s earnings during the relevant period of time for the purpose of calculating compensation.Interest for lost salary: Lost salary should be subject to interest on the basis that it would have been paid in separate monthly installments, with interest on each installment calculated in accordance...

The Tribunal found that the decision of the Ethics Office had direct consequences for the rights of the Applicant so as to make it an administrative decision. Further, the Tribunal held that when a claim relates to issues covered by ST/SGB/2005/21, a staff member is entitled to certain administrative procedures, including judicial review of the administrative decision taken.

The Tribunal, noting that the Applicant had failed 51ÁÔÆæ the time limit set out in former staff rule 111.2(a), focused solely on whether there were ¡°exceptional circumstances¡± to warrant a waiver of the time limit. The Tribunal found that the Applicant¡¯s mere assertion that she was unable to follow-up and was incapable of submitting a reasoned appeal as a result of psychological and professional stress was inadequate to warrant a waiver of the time limits. Based on the limited submissions of the Applicant, the Tribunal was unable to establish any causal relation between her state of...

UNDT noted that the contested decision was superseded by the 31 March 2011 decision to extend the Applicant¡¯s appointment for another six months. UNDT held that the application was thus rendered moot and decided to close the case.

UNDT noted that the contested decision of 22 December 2010 was superseded by that of 31 March 2011 to allow the Applicant to exercise his right of rebuttal. UNDT held that the Applicant was moot and decided to close the case.

It was common cause that the Applicant had committed misconduct by submitting falsified information to an outside public entity (New York City Housing Development Corporation), including a forged letter from another United Nations staff member, in order to qualify for a subsidized apartment. The only legal issue before the Tribunal was whether the disciplinary measure imposed on the Applicant was proportionate to the established misconduct. The Tribunal found that the Applicant¡¯s actions amounted to serious misconduct and that it was reasonable for the Respondent to conclude that the...

The Tribunal found that the Administration had erred in giving to the Applicant an appointment whose expiration date went well beyond his retirement age but that it duly rectified this error by separating him from service. It also found that the Applicant had been sufficiently compensated by the Respondent. Nature of contractual relationship: The contracts by which the Organization employs staff members are not regular contracts, given the particular relationship established between staff members and the Organization, and they are for the most part governed by the Staff Regulations and Rules...

The Tribunal found that there could not be an absolute and general rule that the failure to give reasons amounts to an unlawful exercise of the discretion not to renew. Nor should there be a rule that reasons should never be given. Having found that the decision was not prima facie illegal, the requirements provided for in Article 13 of the Rules of Procedure to grant suspension of action were not met.Outcome: the application was dismissed.

The Tribunal found that there was a failure of procedure and a violation of the Applicant¡¯s rights during both selection exercises. In this respect, the Tribunal held that the decision not to select the Applicant for the New York post was unlawful as the selection process was tainted by prejudice, which resulted in his candidacy not being given full and fair consideration. With respect to the Vienna post, the Tribunal held that once the programme case officer decided to test and interview the Applicant, who was a roster candidate, afresh with new candidates, it was inherently unfair for the...

The filling of the Post with the ultimately-successful candidate cannot be characterized as a ¡°transfer¡±, be it lateral or not. The ultimately-successful candidate was therefore rather selected for the Post. Simply stated, the Post did not qualify as a lateral transfer. The Respndent employed the wrong procedure. The Applicants, although ranked behind the initially-successful candidate, were also ¡°suitable¡± candidates for the Post. The Tribunal finds that the selection exercise for the initially-selected candidate was improper. The Applicants having been deemed by the Tribunal as suitable...

The Tribunal finds that the facts on which the disciplinary measures are based were established. Judicial review of disciplinary sanctions (1): As the Applicant challenges the disciplinary measures on the sole ground that he did not commit the purported actions, there are no grounds for the Tribunal, once it has found that the facts are established, to consider whether these facts legally amount to misconduct and whether the sanctions imposed on the Applicant were proportionate. Judicial review of disciplinary sanctions (2): The circumstance that an investigation into misconduct might have...

The initial decision not to confirm the Applicant to the post was taken by an unidentified person whereas only the High Commissioner has the authority to take decisions on promotions. This decision must therefore be rescinded by the Tribunal. A second decision not to confirm her to the post was taken by the High Commissioner following a recourse submitted by the Applicant to the APPB and the Tribunal must examine the legality of this decision. The UNHCR Representative, who decided not to recommend the Applicant¡¯s confirmation to the post, took this decision without informing her beforehand and...

UNDT noted that when the facts at issue occurred, the Applicant was neither a staff member, nor a former staff member within the meaning of Article 3.1 of the UNDT Statute. UNDT accordingly held that the Applicant was not a person having access to UNDT and that it had to declare itself not competent to consider the application. UNDT rejected the application.

To give full effect to the requirements of staff rule 110(4) which embodies the elements of fair process in disciplinary investigations, the preliminary investigation undertaken pursuant to the AI and any related IOM/ FOMs should be treated as strictly preliminary. The disciplinary part of the process, including the interview of the alleged offender should only occur once all the preliminary evidence has been made available to the staff member and the specific allegations against him or her have been finalised. If there is to be an interview it should properly be the last step in the...

Regulatory decisions v. individual administrative decisions: An applicant may plead the unlawfulness of a regulatory decision only in the context of an appeal against an individual administrative decision taken on the basis of such regulatory decision. The Tribunal may not rescind a regulatory decision.