51ÁÔÆæ

Once approved by the General Assembly, the decision to downgrade a post is placed outside the Tribunal¡¯s jurisdiction. There can be no issue of restoring this position and the Applicant as its incumbent. The only question that could be entertained by the Tribunal is whether, in proposing the budget, the administration acted lawfully, or, as it is alleged, engaged in a conspiracy against the Applicant to mislead the General Assembly. The Tribunal found that the Secretary-General¡¯s recommendation to downgrade one of the P-4 posts was lawful. The Tribunal was satisfied that the downgrading of...

On the due process prong, the Tribunal concluded that the Applicant¡¯s complaints about lack of due process were without merit. The Applicant did not establish that the Respondent failed to afford him due process in the investigation and disciplinary process. Accordingly, the Tribunal held that the Applicant¡¯s due process rights were guaranteed. On whether the facts were established by clear and convincing evidence, the Tribunal recalled that the Applicant was sanctioned for: (i) Misleading the UNHCR¡¯s Global Fleet Management (¡°GFM¡±) regarding the extent of the damage to the UNHCR¡¯s vehicle;...

The Tribunal reviewed the application and found it not receivable. The Applicant indicated in his application that while he was initially offered a separation indemnity of 12 months¡¯ net base salary, this amount was later reduced to three months¡¯ net base salary in a separation agreement dated 16 March 2021. According to the information on record, the Chief Human Resources Office, Pakistan Country Office, verbally informed the Applicant of the contested decision on 11 March 2021. Therefore, as per staff rule 11.2 (c), the Applicant had until 10 May 2021 to request management evaluation. Even...

UNAT held that UNDT correctly found that, in light of the circumstances of the case, the Panel [appointed to undertake a fact-finding investigation into Duparc et al.¡¯s complaint], had failed to consider whether the limits of the managerial discretion were respected. UNAT rejected the Secretary-General¡¯s argument that UNDT conducted an investigation de novo and thus exceeded its authority and usurped the Secretary-General¡¯s sole and exclusive authority in disciplinary matters. UNAT observed that when UNDT rescinded the decision based on the investigatory Panel¡¯s report, it did not draw any...

There is no evidence of collusion or bias against the Applicant. On the contrary, several congruent testimonies corroborated the complainants¡¯ statements and confirmed the allegations of bullying and harassment against the Applicant. The Applicant failed to substantiate his arguments against the complaint and the complainants. The facts are established by a preponderance of evidence and constitute misconduct.
Bearing in mind the nature of the facts attributed to the Applicant, it is not unreasonable that he be obliged to attend mandatory training to improve his managerial and communication¡¯s...

Scope of judicial review In a remanded case, such as the instant one, the Applicant may not expand the scope of claims for remedies contained in her original application and, as such, the Tribunal will not consider her new claims or arguments unless they are essentially related to her original claim in the application. Whether and to what extent the Applicant is entitled to remedies The Appeals Tribunal found in Banaj 2022-UNAT-1202 (see para. 1) that the temporary removal from the Applicant, and reassignment to others, of certain of her functions as Head of UNODC in Albania, was an unlawful...

The Tribunal found that there were several reasons why the application was not receivable: the impugned decision was merely a prefatory act , moreover, as such, it was sub judice in Case No. UNDT/NBI/2022/6. However, on a purely formal plane, the application had been filed out of time.

The Tribunal had no jurisdiction to determine this application on the merits as it challenged a decision that was not submitted for management evaluation in a timely manner. The application was filed without being preceded by a timely filing of a request for management evaluation.

The allegations in the Applicant¡¯s complaint squarely [fell] in the realm of workplace disagreements about the normal exercise of managerial authority. Section 1.1 of ST/SGB/2019/8 states that ¡°[d]isagreement on work performance or on other work-related issues is normally not considered prohibited conduct and is not dealt with under the provisions of the present bulletin but in the context of performance management¡±. The responsible official¡¯s conclusion that it was unlikely that an investigation would reveal sufficient evidence to further pursue the matter as a disciplinary case (section 5.5...

The Tribunal recalled its observations in Fultang UNDT/2022/102 filed by this Applicant. The measure is provided in the interest of the Organization; and was fully justified by the need to preserve evidence and to avoid the risk of repetition or continuation of further acts similar to those the Applicant was accused of.

The Applicant was notified of the decision in writing by email dated 17 June 2022. Accordingly, he was required to file his application by 15 September 2022. However, the Applicant filed it on 18 September 2022. The application was therefore not filed within the deadlines stipulated by the Tribunal's Statute. Further, the Applicant did not request a waiver of the deadline before filing his late application or in the late application itself. The application was found to not be receivable.

The Tribunal found that the use of the investigation report was not subject to the confidentiality agreement between the parties; it was an autonomous document, which was lawfully used in court. The decision did not constitute a disciplinary measure. It was taken pending the completion of the disciplinary process and was without prejudice to the Applicant¡¯s rights. More than one circumstance warranting the placement of the staff member on ALWP occurred. The Applicant could be dismissed or separated from service with the United Nations for breach of the duty of trust and confidence, in...

The fact that the Applicant accepted a lower level post did not make his application moot. The Administration failed to fulfil its obligation to offer available positions at the same level of the abolished post. The Applicant sustained and continues to sustain a relevant loss of salary because the Administration failed to make good faith efforts to place him in one of the positions that he applied to at the P-5 level, positions for which he was duly qualified. The Administration also failed to meet its obligation to reassign the Applicant as a matter or priority to another post matching his...

The Tribunal found that the sanction in this case bore no rational connection or suitable relationship to the evidence on the record and the purpose of progressive or corrective discipline. The Applicant¡¯s messages were mainly reactionary, and he showed great pateince in not responding to the complainant's tone. The Applicant was provoked. The Applicant identified no special circumstances which would warrant the anonymization of this matter, apart from potential personal embarrassment and discomfort, which were not sufficient grounds to grant anonymity.

The Tribunal found that the Applicant¡¯s candidature was not given full and fair consideration. Many questions were deleted after the test, a grading methodology was developed after the test and even the passing grade was determined after the test. If indeed there was a legitimate need to make a correction, which there was no proof that there was, the permitted action that the Administration could have taken as per Chhikara 2020-UNAT-1014 was either: (a) administer a new written test to all candidates; or (b) implement variations to the assessment methodology that would not have prejudiced any...

The Applicant was found suitable for available positions. Indeed, for one job opening, he was one of the eight candidates short-listed and convoked to interview. By shortlisting him, the Administration tacitly acknowledged that he was deemed suitable for the position; per Timothy UNDT/2017/080, as a continuing appointment holder facing termination, the Administration was obliged from that point to consider his candidacy on a preferred, non-competitive basis.

The Tribunal found that the Administration failed in its obligation to make good faith efforts to absorb the Applicant into a new post...

It was crucial for the Tribunal to examine the relationship between the Applicant and the alleged victim of his behaviour. There was clear evidence of constant financial support to the complainant/victim. The Applicant built a relationship of trust with the complainant/victimthe where she was able to rely on him for support and was comfortable to meet with him outside of the UNFPA Malawi Country Office. The victim was placed in a very vulnerable position. The abuse by the Applicant was not an isolated episode, as the Applicant is accused also for sexual assault and harassment in different...

The ASG/OHR considered all the relevant facts, and weighed the reasons provided by the Director of the RSCE. She considered the circumstances surrounding the Applicant¡¯s prior service on a temporary appointment, and the exception previously granted to the Applicant¡¯s sister.

The Respondent created no legitimate expectation that the exception previously granted to the Applicant¡¯s sister would automatically result in the Applicant being later granted an exception, too; indeed, the derogation in the past had a different factual basis in the type and length of the relationship (and the temporary...

The Applicant received the contested decision on 5 May 2021. If he wished to challenge his reassignment, he should have filed a management evaluation request by 4 July 2021 but did not do so until 30 November 2021. Thus, his applicaiton was found to not be receivable.

The Applicant¡¯s post termination correspondence seeking to clarify what his terminal benefits would be, his eventual receipt of a statement of payments on 20 September 2021 and the filing of a new MER on 27 October 2021 reiterating the points previously made and decided on by the MEU did not re-set the time for the filing of the application. The Applicant waited approximately seven months after receiving the June 2021 MEU response, which addressed his submissions about entitlement to termination indemnity, before filing the application. The application was therefore outside the permitted 90...