UNDT/2016/069, Ncube
UNDT held that the non-renewal of the Applicant’s contract was unlawful and that this decision was made in breach of his due process rights. UNDT held that the Panel erred when it recommended that the Applicant’s contract should not be renewed. UNDT noted that the Administrative Instruction ST/AI/2010/5 does not grant a rebuttal panel the power to make recommendations on the extension or termination of a staff member’s contract. UNDT also noted that not all procedural errors are prejudicial and not all procedural errors violate a party’s due process rights, and it behooves the Tribunal to determine on a case by case basis whether procedural irregularities have violated a staff member’s rights. UNDT held that the irregularities denied the Applicant the due process he was entitled to. UNDT awarded the Applicant 12 months’ net base salary, for wrongful termination of his contract, in lieu of rescission of the impugned decision. In addition, UNDT awarded him USD10,000 as moral damages for harm suffered as result of a breach of his fundamental right that resulted from a denial of due process.
The Applicant contested the Office for Coordination of Humanitarian Affairs’ (OCHA) decision to separate him from service on the grounds of unsatisfactory performance.
When a decision not to renew a contract is taken on grounds of non-performance, the process of establishing that a staff member has not performed must scrupulously comply with the legislation governing performance management. It is of equal and paramount importance that the rules made by the Secretary-General or under his delegated authority be complied with. Anything short of careful and considered compliance with the relevant rules and regulations would make a mockery of the authority of the Secretary-General to prepare and issue administrative instructions or bulletins.