AV

2021-UNAT-1081, Da Silveira

UNAT Held or UNDT Pronouncements

UNAT agreed with UNDT and found that the evidence on the record supports the UNDT finding that the staff member’s absence from 18 January 2017 to 26 July 2018 was unauthorized, as she did not provide a duly authorized medical certificate or other justification for her failure to report to work. UNAT also found that the refusal of the Medical Services Division (MSD) to certify the staff member’s sick leave request after 18 January 2017 was reasonable and that the MSD was the competent technical body to evaluate medical certifications. UNAT further agreed with UNDT that the staff member had the option to refer her case to an independent practitioner or medical board, after the MSD refusal to certify her sick leave request, but that the Administration was not obligated to inform the staff member of this option since staff members have to ensure that they are aware of the applicable Regulations and Rules. Finally, UNAT also highlighted that the “clear and convincing” standard is to be applied only in cases of termination of appointment due to misconduct, not in abandonment of post cases. UNAT concluded that the facts underpinning the challenged administrative action satisfied more than the preponderance of evidence standard, and as such the separation was lawful.

Decision Contested or Judgment Appealed

A staff member was absent from duty from 18 October 2016 until 26 July 2018. She provided a valid sick leave certificate only for the period of 18 October 2016 until 17 January 2017. From 18 January 2017 until 26 July 2018, her absence was unauthorized, and as such, she was separated from service for abandonment of post. The staff member challenged the administrative action at UNDT, which found that neither the requirement of a detailed medical report pursuant to Administrative Instruction ST/AI/2005/3/Amend.1 (Sick leave) nor the requirement that said medical report adhere to a provided template were overly onerous or otherwise unreasonable. Because the staff member had failed to furnish the required medical reports, the administrative decision to separate her from service for abandonment of post was lawful.

Legal Principle(s)

The absence of a staff member from his or her work, unless properly authorized, may create a reasonable presumption of intent to separate from the Secretariat. The Medical Services Division (MSD) is the competent technical body to evaluate medical certifications. After MSD’s refusal to certify a sick leave request, a staff member may refer her case to an independent practitioner or medical board, but the Administration is not obligated to inform a staff member of this option. Staff members have to ensure that they are aware of the applicable Staff Regulations and Rules. The “clear and convincing” standard is applied in cases of termination of appointment due to misconduct, not in abandonment of post cases.

Outcome
Appeal dismissed on merits
Outcome Extra Text

UNAT dismissed the appeal and affirmed the UNDT judgment.

OAJ prepared this case law summary for informational purposes only. It is no official record and should not be relied upon as an authoritative interpretation of the Tribunals' rulings. For the authoritative texts, please refer to the judgment or order rendered by the respective Tribunal. The Tribunals are the only bodies competent to interpret their respective judgments, as provided under Article 12(3) of the UNDT Statute and Article 11(3) of the UNAT Statute. Any inaccuracies in the publication are the sole responsibility of OAJ, which should be contacted directly for any correction requests. To provide comments, don't hesitate to get in touch with OAJ at oaj@un.org.

The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.

Applicants/ Appellants
Da Silveira
Entity
Case Number(s)
Tribunal
Registry Location :
Date of Judgment
Judge(s)
Language of Judgment
Issuance Type