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Case No. UNDT/GVA/2015/129

Contingency of the Applicant’s FTA: return of Mr. C. to post No. 501057

Under sec. 6.7 of ST/AI/2010/3, in cases of secondment, a lien against a specific post shall only be granted for up to two years, after which it shall be surrendered. No discretion is granted to the Administration for extending the lien beyond the two years. Quite distinctly, para. 7 of ST/AI/404 allows the Administration to extend the mission assignment beyond the two years period, and continue blocking a specific post in the parent department, provided there is a specific written agreement to...

The Tribunal held that the Applicant’s claim that he was underpaid between July 2004 and 31 May 2005, was not receivable. The Tribunal was satisfied that in the period in relation to which the Applicant alleged underpayments by the UNFPA Administration, the Applicant was not a staff member appointed by the Secretary-General. The jurisdiction of the Tribunal is limited to persons who are staff members or former staff members of the Organization. Therefore, the Applicant had no locus standi regarding the claims derived from another status, but not a staff member. With regard to the non-renewal...

UNDT held that the Applicant had not met the evidentiary burden of showing that the Administration made an express and firm commitment in writing to extend his appointment and that conversely, the evidence showed that, in accordance with its Transition Plan, the Mission had no intention of maintaining the Applicant’s post and proceeded with the downsizing. UNDT held that the Report of the Advisory Committee on Administrative and Budgetary Questions did not require UNOCI to renew the Applicant’s appointment, neither did it alter UNOCI’s obligation to implement the phased drawdown in accordance...

The Respondent complied with the audi alterem partem principle, which ensures that a party adversely affected by an administrative decision has the right to know, the opportunity to comment on, and the ability to answer the case against him or her. The Applicant was well aware of the complaints that were lodged against him, was confronted with each claim and responded thereto, was repeatedly warned about his unprofessional behaviour and performance issues yet failed to heed to these warnings. The decision not to renew the Applicant’s contract due to poor performance was lawful. The Applicant’s...

UNDT held that it was a case in which the host country was not forthcoming or did not provide reasons which justified the PNG decision. UNDT held that once the Organisation had verbally stated, determined and notified the Applicant that the allegations against her were not considered misconduct, it had a duty as per Hassouna (UNDT/2014/094) not to change the terms and conditions of her contract. UNDT held that the Secretary-General had the power to reassign the Applicant on an exceptional basis and should have done so. UNDT held that, according to Hassouna, the Organisation could not resort to...

it is undisputed that the Administration did not afford the Applicant written notice so he learnt about the non-renewal only upon the expiration of his fixed-term appointment. This practice, however, does not disable the right to seek review of the non-renewal decision by the UNDT. The Tribunal considers that the objective factual element as to the non-renewal of the Applicant’s appointment consists in the memorandum instructing the Applicant to commence his separation procedure, dated 4 January and delivered to the Applicant on 11 January 2016. Recalling that the Applicant sought information...

The evidence showed that the Applicant’s post was abolished and his fixed-term appointment was not extended for this reason. Therefore, the reason provided by the Administration for the non-renewal was lawful. The Applicant has adduced insufficient evidence that he was promised a renewal. The Applicant should have been aware that his fixed-term appointment expired automatically at the end of its term. The Administration properly notified the Applicant of the non-renewal of his appointment. While the notification of the decision not to extend the Applicant’s fixed-term appointment did not state...

Whether the Applicant was promised a renewal The Applicant appears to argue that the Administration created an expectancy of renewal of his contract by referring to statements, allegedly made by various individuals of the Organization. The individuals concerned dispute the facts as presented by the Applicant and he has not adduced any written evidence regarding a firm commitment to renewal. In this respect, the Tribunal recalls that “[i]n order for a staff member’s claim of legitimate expectation of a renewal of appointment to be sustained, it must not be based on mere verbal assertion, but...

Therefore, the facts resulting from this investigation were not established to a sufficient standard that would permit the Administration to later rely on them to act against the Applicant once he became a staff member. Accordingly, the Tribunal is not satisfied that Administration acted as a reasonable decision maker in deciding to terminate the Applicant’s fixed-term appointment and finds the contested decision unlawful and decides to rescind it. The contested decision is rescinded. Under art. 10.5(a) of its Statute, the Respondent may elect to pay the Applicant compensation in lieu of the...

Scope of the review The original decision not to grant the Applicant a permanent appointment was notified to her in January 2019. The communications between the Applicant and the Administration in this regard in April-May 2020 were merely reiterations of a challenge and of the original decision. These communications did not reset the clock with respect to statutory timelines. The Applicant failed to challenge the decision made in January 2019 within the statutory time limit and, therefore, the Tribunal rejects the application with respect to the Administration’s refusal to grant a permanent...