2018-UNAT-835, Kataye
UNAT considered the Secretary-General's appeal, challenging UNDT’s finding that the application, as it related to the second contested decision, was filed on time and was receivable. UNAT agreed with the Secretary-General, that the official holiday at the New York Registry on 5 September 2016 is irrelevant for the determination of the timeliness of the individual’s filing before the Nairobi Registry. Although the case was later transferred to New York, on 6 September 2016, this case was still recorded as pending before UNDT Nairobi and the filing of all documents in that month was expected to be done at the Nairobi Registry. The only issue for consideration to determine whether the case was receivable by the UNDT was whether the filing of the application with the Nairobi Registry was timely. UNAT found that the application was filed after the stipulated time limit and there was no evidence that the individual applied for and was granted an extension to file a late application, nor was there evidence to establish that there were any exceptional circumstances that supported a waiver of the statutory time limit. UNAT accordingly found that the individual’s application was not receivable ratione temporis. UNAT granted the appeal and vacated UNDT’s judgment.
The Applicant contested two decisions; the first decision, made on 27 December 2015, was to rotate her from the Supply Chain and Service Delivery (SCSD) office to the Supply, Centralized Warehousing and Property Management Section and the second decision, made on 23 March 2016, was to temporarily loan the post that the Applicant encumbered to the Training Unit where she was to perform the functions of an Administrative Assistant at the FS-5 level. UNDT found that the first contested decision was filed out of time and therefore not receivable ratione temporis. UNDT, however, found that the application against the second contested decision was filed timely and receivable. UNDT concluded that while the 23 March 2016 reassignment decision was valid until 30 June 2016, its extension beyond that date, until the end of June 2017, was unlawful. UNDT found that the Administration failed to observe that the 23 March 2016 decision was no longer valid when the Applicant’s temporary loan expired on 30 June 2016, and the Administration did not issue, before or on the 30 June 2016 expiration date, a decision to extend the initial temporary loan beyond the expiration date or issue a new decision to loan the Applicant’s post to the same unit starting 1 July 2016, as required by the Standard Operating Procedures. UNDT noted in its judgment that the Applicant received the outcome of her management evaluation request on 7 June 2016 and therefore the 90-day deadline for filing an application ended on 5 September 2016. UNDT reasoned that since 5 September 2016 was observed as an official holiday at the New York Registry, the deadline for filing an application at that Registry was the following day, 6 September 2016; this is the day on which the Applicant filed her application at the Nairobi Registry where the case was filed and pending and had not yet been transferred to New York. UNDT also found that the Applicant suffered emotional distress as a result of the second contested decision and provided compensation.
Statutory time limits must be observed unless there is evidence of exceptional circumstances.