UNAT Held or UNDT Pronouncements
The UNAT found that beyond reporting the possible prohibited conduct concerning non-compliance with the United Nations financial rules and regulations to the Office of Internal Oversight Services, the staff member had no further interest in law in the conduct of the investigation or its outcome. The UNAT further agreed with the UNDT that there was no basis for his assertion that OIOS had declined to conduct an investigation into his report. The UNAT concluded that the UNDT had not erred in finding the application concerning this decision not receivable.
Regarding the staff member’s complaint of harassment and abuse of authority, the UNAT noted that the remarks attributed to the Controller had been made in the course of a general restructuring exercise amidst rumors of a large deficit in the finances and related to the handling of financial and budgetary matters of the office. The UNAT found that the UNDT had correctly observed that OIOS had reasonably determined that the Controller’s alleged comments had been essentially a work-related matter.
The UNAT held that OIOS had been correct in considering that it was unlikely that the remarks would rise to the level of misconduct warranting disciplinary action.
The UNAT dismissed the appeals and affirmed the UNDT Judgments.
Decision Contested or Judgment/Order Appealed
A staff member contested a decision to decline to open an investigation into possible non-compliance, by the United Nations Controller, with the United Nations financial rules and regulations, and a decision to decline to open an investigation into possible harassment and abuse of power by the Controller.
In Judgment No. UNDT/2024/025, the UNDT dismissed the application filed in respect of the first contested decision as not receivable, and in Judgment No. UNDT/2024/036 dismissed the application filed in respect of the second contested decision on the merits.
The staff member appealed both UNDT Judgments.
Legal Principle(s)
The institution of disciplinary charges against a staff member is the prerogative of the Organization itself, and it is not legally possible to compel the Administration to take disciplinary action. Likewise, the Administration has a degree of discretion as to how to conduct a review and assessment of a complaint and whether to undertake an investigation regarding all or some of the allegations.
A refusal of a request to open an investigation does not constitute an appealable administrative decision unless the staff member has a direct and substantial interest in the decision.
Neither the Dispute Tribunal nor the Appeals Tribunal is the proper forum to investigate or determine issues of retaliatory actions at first instance.
Alleged retaliatory actions are not contestable in and of themselves, unless they constitute administrative decisions capable of being subject to judicial review.
Â鶹´«Ã½ Dispute Tribunal and the United Nations Appeals Tribunal shall not have any powers beyond those conferred under their respective statutes.
The non-receivability of an action is a threshold issue which, once declared, renders a judgment on the merits immaterial, because there is nothing before the court to adjudicate. Where the UNDT finds an application not receivable, it has no jurisdiction or competence to assess any evidence or argument regarding the merits of the claim or to rule on the merits of the application, since those claims are not properly before the Tribunal for consideration.
There can be no compensation in the absence of an illegality or actual prejudice.