51ÁÔÆæ

The Tribunal observed that it was not disputed that the impugned decision related to facts anterior to the Applicant¡¯s appointment. Also not in dispute was the fact that no disciplinary process was initiated, and no disciplinary measure was taken against the Applicant. It followed that the impugned decision was not a disciplinary measure but was an administrative decision affecting the Applicant¡¯s contract or terms of appointment under staff rule 11.2(a). Accordingly, the Applicant should have sought management evaluation before filing the application, which he did not do. The Tribunal further...

The UNAT noted that the simple issue arising in this appeal was whether it was appropriate and correct for the judge to have proceeded with the application for review of the contested decisions while the motion for recusal was pending. The UNAT held that the straightforward answer is that it was not.

An application for recusal can be brought at any time in the proceedings and is usually a difficult strategic choice for the party making the challenge. Such an application is made, typically, at the moment the party loses confidence in the judge. Its timing will depend on the circumstances. The...

UNAT held that Mr. Saleh¡¯s complaints of procedural unfairness were unsustainable for the reasons stated by the UNDT and he had not discharged the burden incumbent upon him to satisfy the Appeals Tribunal that the UNDT Judgment was defective in that regard. He merely repeated the untenable submissions he made before the UNDT.

UNAT took note that Mr. Saleh admitted to two counts of fraud. UNAT then held that Mr. Saleh¡¯s conduct unquestionably damaged the trust relationship and the UNDT was correct to defer to the reasonable conclusion of the Administration that the damage was irreparable and...

The UNAT reviewed the submission of the Secretary-General that Ms. Lekoetje had already repaid the amounts due to the Organization when she separated from service. The UNAT acknowledged that Ms. Lekoetje agreed with the Secretary-General¡¯s position, and confirmed that USD 20,987.91 had already been deducted from her final entitlements.

Accordingly, the UNAT accepted this position, and interpreted Judgment No. 2022-UNAT-1227 as requiring a payment by the Organization to Ms. Lekoetje of a sum equal to one year¡¯s net base salary, but without any further deductions.

The UNAT held that the UNDT erred with respect to the period for which the staff member was entitled to an SPA. The UNDT found that the requirements for an SPA had been met for the period 1 August 2015 to 31 January 2018, but due to the timing of his request in December 2018, he was entitled to payment only starting 21 December 2017. The UNAT agreed with the Secretary-General¡¯s argument that even this payment was in error, because the staff member¡¯s claim to the SPA was made several years after the entitlement to the initial payment came into play in August 2015. The UNAT held that the...

The decisive fact relied on by the Secretary-General to justify a revision of the UNAT judgment is said to be that Mr. Russo-Got inserted false information in his candidature regarding his alleged experience with NATO. The Secretary-General submits that he first became aware of this fact formally when it was made known to UNOPS after the issuance of the UNAT judgment.

UNAT held that the facts advanced by the Secretary-General, namely the allegedly false information Mr. Russo-Got had inserted in his candidature, could not be decisive of the Secretary-General¡¯s case and enable him to now...

Mr. Zeid appealed. As a preliminary matter, UNAT dismissed Mr. Zeid's request for an oral hearing finding that the factual and legal issues arising from the appeal had already been clearly defined by the parties; and that an oral hearing would not ¡°assist in the expeditious and fair disposal of the case¡±. UNAT held that the UNRWA DT correctly found that there was no evidence of a request for decision review, that the e-mail exchanges whereby Mr. Zeid had made inquiries regarding the reasons for the contested decision were not a request for decision review, but rather were informal attempts to...

UNAT noted that UNRWA DT¡¯s analysis of whether Mr. Faour had timely requested review of the decision not to renew his contract, the UNRWA DT focused on Mr. Faour¡¯s omnibus letter (of 17 December 2018) to his superior containing many complaints, including a request for review of his performance review, but no request for review of the contested decision (the non-renewal of his contract). UNAT found, however, that other correspondence from Mr. Faour that was within the statutory 60 days to request a decision review did fulfill the minimum criteria required by UNAT judgments: it identified the...

Whether there was a genuine restructuring process In the present case, there is no evidence that the restructuring exercise was not genuine. Instead, the evidence shows that there was a genuine, large-scale restructuring, and this resulted in numerous staff members and non-staff personnel being separated from service. The restructuring of WSSCC was in effect the shutting down of WSSCC and the establishment of the SHF. Moreover, the strong donor support shows that it was a genuine restructuring. As the donors have a fundamental objective to ensure that the funds they provide are appropriately...

The Tribunal found that with clear and convincing evidence, the Respondent only managed to establish that the Applicant intended to assert some, albeit ineffective, pressure on BM in the hiring process of daily workers. Under Sanwidi, the Tribunal found that the termination of the Applicant¡¯s appointment was manifestly incorrect and led to a disproportionate outcome. The contested decision was therefore unlawful.

Considering its findings on the unlawfulness of the contested decision, the Tribunal found that the most appropriate remedy would be to rescind this decision (in comparison, see...

Scope of judicial review and the contested decision The Applicant described the contested decision as a failure to implement ¡°measures to promote a harmonious work environment and protect personnel from prohibited conduct through preventive measures¡±. As remedies, the Applicant sought damages for moral harm and emotional distress resulting from the Administration¡¯s breach of its duty to ensure a harmonious work environment. Accordingly, the Applicant seeks to contest the Administration¡¯s failure to take appropriate measures to promote a harmonious work environment and protect him from...

In sum, considering the nature and gravity of the Applicant¡¯s misconduct, as well as the past practice of the Organization in matters of comparable misconduct, the Tribunal finds that the imposed disciplinary and administrative measures were adequate in light of the Administration¡¯s scope of discretion in this matter.

The Tribunal finds that the Respondent¡¯s explanation as to why the Applicant¡¯s post was the one chosen for abolition is well substantiated. There was a genuine large scale restructuring due to severe budget cuts, which resulted in other staff members being separated from service, including the Applicant, and there was a legitimate explanation for the recruitments and vacancies that were not cancelled. The presumption of regularity was satisfied. Since the Applicant cannot convincingly show why his post should not have been abolished even though the posts of dozens of other staff members...

Whether the facts on which the disciplinary measure was based have been established In determining whether the standard of proof has been met, the Tribunal ¡°is not allowed to investigate facts on which the disciplinary sanction has not been based and may not substitute its own judgment for that of the Secretary General¡±. Thus, it will ¡°only examine whether there is sufficient evidence for the facts on which the disciplinary sanction was based¡± (see Nadasan 2019-UNAT-918, para. 40). As such, the Tribunal considers to be irrelevant the Applicant¡¯s submission that the facts on which the...

On the due process prong, the Tribunal concluded that the alleged failures and shortcomings in the investigation process did not prejudice the Applicant¡¯s case. 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 found that the Applicant had discussed an amended procurement bid to enable LL to be awarded the procurement contract; that, as a result, the bid was fraudulently amended and with the Applicant¡¯s acquiescence. Thus, the Tribunal held that the Respondent had...

In the current case, the Applicant only filed his request for management evaluation one calendar day before his application to the Dispute Tribunal and is yet to receive a response by management to his submission. Under staff rule 11.2(d), the Administration has 30 days to provide the management evaluation if the staff member is stationed in New York and 45 days if s/he is stationed outside New York. In the circumstances, the Applicant¡¯s application is premature and therefore not receivable.

Whether the application is receivable in its entirety Although the Applicant questioned the legality of the threshold to qualify for a single parent allowance, contained in sec. 4.4 of ST/AI/2018/6, it must be understood as part of his legal reasoning or arguments and cannot be considered as the ¡°contested decision¡± as suggested by the Respondent. Indeed, the Applicant does not claim in the abstract that the requirement contained in sec. 4.4 of ST/AI/2018/6 is unlawful but rather seeks to challenge the direct and individual application of the specific requirement to his case as it adversely...

The Tribunal observed that the Applicant¡¯s complaint involved one specific incident, i.e., a chain of emails where his performance was being criticized, which evolved into two managerial decisions by his supervisors: a transfer of functions and instauration of a PIP. The Applicant perceived those emails as harassment. However, for a staff member¡¯s behaviour to be punishable as constituting the disciplinary offence of harassment pursuant to ST/SGB/2019/8, the analysis of said behaviour must pass a two-fold test: it must be found ¡°improper and unwelcome¡± and ¡°might reasonably be expected or be...

The logical consequence of rescinding the contested administrative decision would be to remand the case to DHMOSH for a new consideration in light of the Tribunal¡¯s findings in the present case. As the basic legal premise for the contested administrative decision was flawed, the Tribunal find that this would be the most appropriate remedy in the present case (in line herewith, see the Appeals Tribunal in Gueben et al. 2016-UNAT-692, para. 48). In this regard, the Tribunal notes that it has no jurisdiction as to directing the work of a potential medical board or the ABCC. The Tribunal finds...

The application can be decided through a summary judgment as there was no controversy on the facts, and the legal matter at stake was already been decided by this Tribunal in its Judgment Krioutchkov UNDT/2021/052.

The Applicant decided not to participate in the written assessment, which was a compulsory step in the recruitment process. It follows that his non-selection for the vacant post was exclusively a consequence of his own actions and, as per Loeber 2018-UNAT-836, he stopped himself from contesting the selection outcome.

Although the schedule of the written assessment was probably...