����AV

The Applicant’s alleged abuse of Buddy qualified as such conduct. Not returning the Applicant to the Canine Unit. It was proper not to return the Applicant to his former job after the disciplinary case against him had been dismissed. Not returning Buddy. Since Buddy was surrendered to the custody of the New York State Police, the United Nations would appear to have transferred back the property rights over Buddy to the New York State Police. Regardless of the outcome of the disciplinary case against the Applicant, it would therefore seem that the Respondent is not able to return Buddy to the...

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 Tribunal examined whether the compensation granted to her by the Respondent was adequate to provide reparation for the damage she suffered as a result of the irregularities committed. The Tribunal found that none of her allegations was proven. It considered that the Applicant did not suffer any material damage as a result of the contested decision and that the compensation already given to her was sufficient to repair any moral damage. Selection procedure: It is for the Administration to determine the suitability of each candidate and the Tribunal should not substitute its judgment to that...

Outcome: The Tribunal found that the Secretary-General acted properly within his broad discretion in deciding to take no action in relation to the Applicant’s appeal against the non-renewal of his fixed-term appointment, and the appeal was dismissed.

Review of the motivations behind the contested decision: Circumstances intervening after the contested decision was taken may not be considered as showing the motives put forward by the Administration to be false. Even if it was proved that an evaluation of the Applicant’s performance was conducted after his separation, this is not pertinent in examining the decision not to renew his contract, inasmuch as the motive provided therefor was not unsatisfactory performance. Scope of review by the Tribunal: It is not for the Tribunal to determine, when the Administration decides to close one of its...

The UNDT found that, given the burden of proof on the Administration to establish by “clear and convincing evidence” that there is no retaliation pursuant to sec. 2.2 of ST/SGB/2005/21, and given some of the unresolved questions arising from the OIOS investigation report and its annexes, any reasonable reviewer would have examined the annexes, which the Ethics Office did not. Nor did the Ethics Office sent the report back to OIOS for further investigations and/or clarification. Since the Ethics Office did neither, the Respondent was found liable for the Ethics Office’s failures and/or...

The Tribunal notes that the Applicant has not submitted any evidence to support his claim that the Respondent was biased towards him and nothing in the case record suggests otherwise. His contention therefore fails.

The practice of placing reliance upon recordings in initial fact finding exercises and interview notes of appointed investigators in an effort to establish gross misconduct warranting summary dismissal before the Tribunal is grossly inadequate and cannot establish the facts in issue. An investigator must be committed to ascertaining the facts of the case through relevant inquiry involving the questioning of witnesses, forensic evidence where necessary and identification and collection of relevant documentary evidence. The investigator’s findings should be based on substantiated facts and...

Assessment of irreparable damage in relation to non-selection decisions: The applicant was not the only recommended candidate and, therefore, it could not be concluded that he would have been selected for the litigious post. Accordingly, he failed to show that the implementation of the contested decision would cause him irreparable damage.

Reasons for non-renewal: While the Administration is not bound to provide a staff member with the reasons for the non-renewal of his or her appointment, when the staff member contests before the Tribunal the legality of the non-renewal decision, holding that the motives behind were unlawful, the Administration must communicate to the Tribunal such motives and show they were real.