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UNAT considered an appeal by Ms. Banaj against Judgment No. UNDT/2021/030.

UNAT held that a reallocation of duties pending the outcome of an investigation as occurred in Ms. Banaj’s case is permissible as an interim measure in such circumstances, but not as the exercise of the general power of assignments available to the Secretary-General in Staff Regulation 1.2(c) […] But, under Staff Rule 10.4 and the Framework relating to interim measures pending an investigation and disciplinary process, there is an alternative measure of reallocation of duties available in such cases where the investigation is, or is likely to be, unduly prolonged. In such cases, a staff member’s duties can be reallocated to obviate or mitigate the effects of administrative leave which would see staff members, whether on pay or unpaid, performing no duties for the duration of the period of a lengthy investigative process. There is no evidence whether, in Ms. Banaj’s case, the investigation was anticipated to be unduly long running, so it is not possible to say whether the reallocation of duties might have been available as an alternative to prolonged administrative leave under Staff Rule 10.4. The UNDT wrongly concluded that the reassignment of duties imposed as an interim or temporary measure during the substantive investigation of the misconduct allegations was a permissible interim measure authorized by Staff Regulation 1.2(c).

In respect of the Working Arrangement document between UNDP and UNODC, effective 1 January 2004, UNAT held that its provisions make it clear that the UNDP retained control of the matters at issue in the proceeding and in particular, of the investigative process which resulted from the complaint of misconduct against Ms. Banaj. Put simply, the UNDP had the responsibility for determining whether interim measures should be taken pending the outcome of the investigation and, if so, what measures should be engaged. The UNDP declined to impose a period of administrative leave (including, potentially if the conditions for this were fulfilled, re-assignment of duties) on Ms. Banaj. Decisions on these issues made by the UNODC were made without authority.

UNAT concluded that the power purportedly invoked by the UNODC to re-assign Ms. Banaj’s duties was neither the specific, conditional and limited power available under the Framework, nor a proper exercise of the general power under Staff Regulation 1.2(c) of the Staff Rules and Regulations. Thus, UNODC’s decision effecting that re-assignment of duties must be set aside as having been made without jurisdiction to do so.

UNAT also held that any decisions relating to what was to happen to Ms. Banaj pending the misconduct investigation undertaken remained with the UNDP. While the UNDP could (and probably should) have consulted with the UNODC before it (UNDP) made such a decision, what happened in practice was the reverse of this: the UNODC consulted with the UNDP before it (UNODC) purported to re-assign Ms. Banaj’s duties.

UNAT also noted that the UNDT apparently agreed to consider evidence provided, as it described it, “ex parte” by the Secretary-General. That is, while relevant documentary evidence was made available to UNDT by the Respondent, Ms. Banaj was not able to see or know of its contents. UNAT held that the admission and consideration of this ex parte evidence also breaches the fundamental legal principle of natural justice known as audi alteram partem, the obligation on a decision-maker, literally, to ‘hear the other party’ and includes the right of each party to a fair hearing and to respond to evidence against them. It considered that the UNDT was not empowered either to so admit evidence or then to rely upon it in deciding the case before it.