����AV

The Applicant erred in her assessment that OIOS is not part of the Administration and that its decision does not constitute a final challengeable administrative decision. Indeed, OIOS is part of the Secretariat. It “operates under the authority” of the Secretary-General, albeit its operational “independence”. Accordingly, decisios made by OIOS can constitute, in fact, final administrative decision. The fact that the Applicant made two reports, namely one to OIOS and one to the Administration, did not create a duty on any other person or office to make a final decision, given that the...

The Tribunal is entitled to examine the entire case before it. In other words, the Tribunal may consider not only the administrative decision of the Secretary-General imposing disciplinary measures but also examine the material placed before him on which he bases his decision in addition to other facts relevant to the said material. The rush by the investigators to produce a prejudiced report dripping with innuendos, riddled with ridiculous findings and which completely and unjustly tars the Applicant with a brush of criminality must be loudly condemned by this Tribunal.

The Tribunal rescinds the decision to summarily dismiss the Applicant and Orders: the reinstatement of the Applicant; that the Applicant be paid her salaries and entitlements from the date of her summary dismissal to the date of this judgment with interest at 8%; that the Applicant be compensated for the breach of her right to due process at the rate of two months net base salary; that compensation be fixed, should the Secretary-General decide in the interest of the Administration not to perform the obligation to reinstate the Applicant, at two years’ net base salary at the rate in effect on...

The more serious an allegation against a staff member and attendant sanction, the higher the degree of proof required. Establishing criminal liability in investigations and judicial proceedings even in the context of a civil matter such as this must necessarily require that a standard higher than the ordinary one of a balance of probabilities must be attained. The OIOS Investigations Manual requires that investigators approach matters with an “open mind” and emphasises that their task is to “establish facts” and draw “reasonable conclusions” from those facts. It is a “dispassionate...

The Respondent rested his case on the evidence of a witness on whom anonymity was conferred during the investigation and who was not called at the hearing. From the statements made by the witness during the investigation the Tribunal found that his/her testimony was fraught with irregularities and inconsistencies and could not be acted upon. The Tribunal also found that failure to call the witness for cross examination was a breach of the due process requirement. The Tribunal also held that when anonymity is conferred on a witness during the investigation, the Tribunal is not bound by this and...

Outcome: The Applicant’s claim relating to the non-renewal of contract was not receivable (time-barred) and his claim for reimbursement of salary was rejected for lack of evidence. The Respondent was ordered to remove the note from the Applicant’s file and pay the Applicant six months’ net base salary for the breach of due process rights and the effect of the note on his career.

The Tribunal raises on its own motion the question of the receivability ratione materiae, namely whether the OIOS decision was an appealable administrative decision. On the merits, it finds that the OIOS decision is lawful. Tribunal’s obligation to raise on its own motion issues related to its competence: Before ruling on the legality of a decision, the Tribunal must examine on its own motion—that is, even if the issue was not raised by the parties—whether it is competent, pursuant to its Statute, to hear and pass judgment on an application, including whether the contested decision is an...

The Tribunal found that the OIOS decision was an appealable administrative decision but that the application was time-barred. Force of JAB conclusions and recommendations: The Tribunal is not bound by the conclusions and recommendations of the Joint Appeals Board, which is only a consultative body. Tribunal’s obligation to raise on its own motion issues related to its competence: Before ruling on the legality of a decision, the Tribunal must examine on its own motion—that is, even if the issue was not raised by the parties—whether it is competent, pursuant to its Statute, to hear and pass...

The Applicant applied twice for the position of Director of Investigations, Office of Internal Oversight Services (“OIOS”) (“the Post”) at the D-2 level. The Post was first advertised in a vacancy announcement in 2008 and again in 2009. A selection panel set up by OIOS recommended him as the only qualified candidate for the Post in each instance. Neither of these recommendations was approved by the Special Review Group (“SRG”) and, as a result, no appointment was made to the Post. A third vacancy announcement was issued, for which the Applicant did not apply. The Applicant submits that he...

Outcome: For Applicant (relief to follow).