Judge Kaman
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...
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...
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...
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.
The e-PAS report for 2007-2008. The Applicant’s behaviour was not appropriate or cooperative, placing her first reporting officer in a difficult position. Nevertheless, under ST/AI/2002/3, it is the duty of the first reporting officer, as well as the head of department and managers with supervisory authority, to make sure that the staff member’s individual work plan is completed on time, and the Organization remains ultimately responsible for the implementation of the e-PAS system. The e-PAS report for 2008-2009. A one-year delay in signing-off on an e-PAS report is clearly improper under sec...
The case was not time-barred. As in Mezoui: (1) the Applicant had requested from the former United Nations Administrative Tribunal an extension of time to file her application; and (2) such extension was granted with a time limit of 30 June 2009 (the last day of the functioning of the Administrative Tribunal). The following additional factors were also taken into account: the Applicant’s personal circumstances; the significant delays of the JAB proceedings compared to the relatively short delay on the part of the Applicant; and the Applicant’s difficulties in finding out where to file the...
Placing the Applicant on SLWFP. This Tribunal agrees with and adopts the Kamunyi reasoning that former staff rule 105.2 did not permit placing a staff member on SLWFP where an investigation was being made into possible wrong-doing by that staff member. The formal nature of the OIOS/PTF investigation. For an investigation to be regarded as merely preliminary in nature, some “reason to believe” must exist that a staff member has engaged in unsatisfactory conduct, but the investigation must not have reached the stage where the reports of misconduct are “well founded” and where a decision already...
Receivability: Only the appeal of the compensation amount was receivable—the 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 to comply with 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 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 Applicant contended that the Complainant’s evidence contained numerous discrepancies and that the Complainant had exercised prevarication over her own statements and had displayed ambivalence over attempts to privately resolve the matter. The Applicant further contended that the finding of sexual harassment was based on the victim’s own perception of the Applicant’s actions. The Tribunal found that: based on the testimony and the entire file, the facts upon which the disciplinary measure was based were established; by any objective measure, the Applicant’s conduct was prohibited by UNICEF...
The Applicant has no interest in the maintenance of the proceedings, therefore the case is closed.
Likelihood of being offered a new contract: The Applicant did not just lose a chance of being considered for a new position; rather, it was only reasonable to assume that the Applicant would have been offered a new contract, had UNICEF properly complied with its own rules. Length of a new contract: Had UNICEF fulfilled its obligations, the Applicant would have been offered a new contract as a two-year fixed-term appointment. Possible renewal: It could not be assumed that, had the Applicant been offered a new contract, then this contract would automatically have been renewed indefinitely—the...
The Tribunal found this decision unlawful as not grounded on any valid legal basis. It awarded three months’ net base salary for moral damage.
Inexplicably, the JAB in its report sua sponte addressed, as a formal issue before it, the handling of a privileged and confidential letter (“Confidential Letter”) that the Applicant’s Counsel had sent to the Under-Secretary-General for OIOS (“USG”) regarding the pending JAB litigation. The JAB refused the Applicant’s non-selection claim, but found that the Respondent owed the Applicant an apology for forwarding the Confidential Letter to some staff members. The Respondent subsequently affirmed the non-selection decision, but rejected the issuance of an apology regarding the distribution of...
The Tribunal will not order the Applicant’s reinstatement as were the original harm repaired, the Applicant’s appointment would already have ended. While the evidence before the Tribunal suggested that extensions of secondments beyond the five-year limit were possible under UNDP policy, the Tribunal was not convinced that it was probable in this case. Therefore, the Tribunal held that the renewal would have been limited to the five-year restriction and compensation was warranted for that period, less the Applicant’s actual income. Account is taken of the context of the contractual breach i.e...
The Secretary-General’s decision to allow the applicants to resubmit their cases to the CAC within 90 days was reasonable and fair. The CAC is the legitimate and appropriate body to hear the applicants’ request for a review of a reclassification decision. In view of the JAB’s report, the lack of information provided during the period in question and the respondent’s silence in explaining the delays in the period from 2000-04, the Tribunal finds that compensation for the excessive delay in responding to the original request for reclassification is warranted, as is compensation for the breach of...
The application was withdrawn by the Applicant in light of a settlement agreement.