2019-UNAT-951, Allen
UNAT held that UNDT did not err that, in the circumstances of the complaints made and the importance of the Appellant鈥檚 role in a difficult duty station, the Respondent was entitled to place the Appellant on Special Leave with Pay while it investigated the allegations against him. UNAT held that UNDT ought not to have relied upon Morsy (judgment No. 2013-UNAT-298), Assale (judgment No. 2015-UNAT-534), and Sarwar (judgment No. 2017-UNAT-757) as it did. UNAT noted that in the Appellant鈥檚 case, not only was there a performance-related justification required to be established but no proper evaluation of the Appellant鈥檚 performance had ever been done. UNAT held that UNDT was not entitled to dismiss the Respondent鈥檚 failure to address the Appellant鈥檚 performance issues as inconsequential. UNAT held that the Respondent was wrong to decide that the Appellant should suffer the contemporaneous sanction of separation in the form of non-renewal of his appointment and that this was a serious breach of the Respondent鈥檚 obligations to formally assess and monitor the Appellant鈥檚 performance. UNAT held that the Respondent鈥檚 obligation was to postpone any non-renewal decision until that performance management process was completed. UNAT held that UNDT incorrectly interpreted and applied the 鈥渘o-difference鈥� principle of law. UNAT held that UNDT exceeded its remit and erred in law by substituting its own determination on the issue of poor performance in determining that the non-renewal based on poor performance was lawful, purportedly under the no-difference principle. UNAT upheld the appeal and reversed the UNDT judgment. UNAT rescinded the Respondent鈥檚 non-renewal of the Appellant鈥檚 appointment, alternatively awarded compensation equivalent to six months鈥� net base salary, and directed the removal of any information from the Appellant鈥檚 personnel file that was inconsistent with the terms of its judgment.
The Applicant contested the Secretary-General's decision to place adverse material in his personnel file without providing him with the opportunity to refute it, to place him on Special Leave with Pay, and not to renew his appointment upon expiration. UNDT rejected the Applicant鈥檚 appeal.
The 鈥渘o difference鈥� principle of law provides that if the Tribunal concludes to a high standard that the outcome would have been inevitable even if the employer had acted in a lawful and procedurally correct manner, then an absence of due process will not avail the employee. UNDT may reach its own conclusions concerning the performance of a staff member without usurping the role of the employer, but only where there is sufficient material on which to base such conclusions.