�鶹��ý

UNAT considered the Secretary-General’s appeal by a full bench of UNAT. The majority of the judges upheld UNDT’s findings that the contested decisions were substantively and procedurally flawed and dismissed the appeal. As for UNDT’s moral damages award, the majority noted that the purpose of the amendment to Article 10. 5(b) of the UNDT Statute, made following General Assembly Resolution 69/203, was to introduce an express requirement that compensation for harm can be awarded only when there is a sufficient evidentiary basis. The majority held that evidence of moral injury consisting...

Termination for misconduct vs. termination for facts anterior: Termination on the basis of staff regulation 9.3(a)(v) and staff rule 9.6(c)(v) is not to be confused with a measure involving separation as a result of disciplinary proceedings, including in cases where the facts in question could have constituted misconduct. Neither the procedure, nor the standard of proof is to be transposed from one to the other. Regarding in particular the standard of proof applicable to “facts anterior”, in the absence of a clear applicable legal norm or ruling of the Appeals Tribunal, it may not be assumed...

Full and fair consideration: In the absence of concrete, convincing evidence, the mere fact that it is possible, theoretically, to alter/tamper a written test will not suffice for the Tribunal to conclude that an Applicant’s candidature was not given full and fair consideration. Also, where no one of the people involved in the administration of the test had a motive to manipulate it, the Tribunal will not find that the decision had been influenced by extraneous factors. The burden of proof in these matters lies on the Applicant. Good management practice: The Administration should take measures...

The best interests of UNHCR were clearly not served by the removal of the Applicant. It is unfortUNATe that some members of the UNHCR senior management sought to hide behind the veil of acting in the Organization’s best interests to act in their own self-interest. The Tribunal therefore found on that score that the Respondent’s explanation were a mere afterthought which was only spun to defend an action that was clearly lacking in due process and constituted an unfair and highhanded removal of the Applicant and abuse of official discretion. The Tribunal was not in any doubt that the removal of...

In light of the parties’ agreement, the Tribunal accordingly entered judgment as follows: a) The Applicant would be paid four months’ net base salary at the level he encumbered prior to his separation from service on 9 August 2013. b) The Applicant would be paid eight months’ net base salary at the level he encumbered prior to his separation from service on 9 August 2013, less the USD equivalent of EUR59,000 calculated as specified below. c) Pursuant to rule 106.5(a) of the United Nations’ Financial Regulations and Rules, the operational rate of exchange, as established by the Under-Secretary...

Whilst the prescribed form refers to “judgments” and not “orders”, the Tribunal found that this is a matter of form and not substance. The Tribunal found that the suspension of action Order No. 276 (NY/2016) was dispositive of the case at the time, and it also found that the motion under review submitted by way of a motion for correction of a judgment on Form UNDT/F.8E rev. 1 of July 2011 was receivable. The Tribunal considered whether, since the Applicant was requesting para. 13 of Order 276 be modified to include a subsequent occurrence, a revision was warranted under art. 29 of the Dispute...

Request for management evaluation: A request for management evaluation has a precise and specific meaning in the framework of the Organization’s internal justice system. It is the first step in formal contestation of an administrative decision and, as such, a mere communication conveying discontent to “management” does not amount to a formal management evaluation request. Management evaluation is a formal process involving a request to the body specifically vested with the authority to look into a contested decision, to consider whether it conformed with the applicable rules of the...

The procedure for conducting investigations of allegations of harassment and abuse of authority by staff members of UNICEF is set out in Administrative Instruction CF/EXD/2012-007. The Applicant provided no evidence that the CF/EXD/2012-007 procedures were not complied with in relation to his case. The undisputed evidence before the Tribunal was that UNICEF’s independent OIAI discussed the allegations with the Applicant but concluded that it did not merit a comprehensive review and was not a well-founded allegation of prohibited conduct. It proposed alternative recourse, which the Applicant...

The Tribunal was mindful of the fact that its authority to suspend or waive the time limits set forth in art. 8.3 of the UNDT Statute did not extend to deadlines for management evaluation. These deadlines cannot be waived notwithstanding whether the failing of the deadline would have been occasioned by confusing information received from the Administration. As provided in staff rule 11.2(c), the deadline for requesting management evaluation may only be extended by the Secretary-General pending efforts for informal resolution conducted by the Office of the Ombudsman, under conditions specified...

Due diligence: A delay in payment of an entitlement under the Staff Rules and Regulations can constitute a violation of a general principle of due diligence and good faith towards staff members, enshrined in the Charter of the United Nations, which is a structural principle of good management practice. Undue delay: In order to assess whether a delay in payment of an entitlement is undue, the Tribunal will look into the time payment would have taken had normal workflows been respected. A delay of eleven months in payment of an entitlement is undue and may warrant compensation provided the...