¹ú²úAV

Receivability The Tribunal noted that the time UNMIK’s Administration took to provide the Applicant with a copy of the outcome of his rebuttal, and to transmit the rebuttal panel’s report to OHRM in New York in order for it to be placed in the Applicant’s OSF, are both administrative inactions susceptible to affect the Applicant’s rights stemming from ST/AI/2010/5 (Performance Management and Development System). Almost twenty months elapsed between the completion of the Applicant’s rebuttal and UNMIK’s transmission of the rebuttal panel’s report to OHRM. During that period, the Applicant’s 2013-2014 e-PAS showing a negative rating remained on record as the only testament to his performance, yet it had been changed in August 2014. The Tribunal noted that UNMIK’s failure to timely act to inform the Applicant of the outcome of his rebuttal (13 August 2014) and to rectify his performance appraisal accordingly is an administrative inaction capable of being challenged. Consequently, the Tribunal found the application receivable ratione materiae in this respect. The Tribunal noted that the Applicant’s challenge to the handling of the complaint he made under ST/SGB/2008/5 is not receivable because he filed it only on 2 March 2017 and did not request management evaluation of either the Administration’s handling of the complaint or the Administration not taking action on it. In fact, he filed his complaint after he received the response to his request for management evaluation. The Tribunal also noted that at the time of the Respondent’s reply, the complaint was still under review and no decision had yet been made. The application was, therefore, not receivable ratione materiae in this regard. Merits Undue delay in notifying to the Applicant the report of the rebuttal panel and in placing it in his OSF The Tribunal noted that ST/AI/2010/5 neither contains a provision regarding the timeline of when a rebuttal panel report and change in e-PAS rating are to be placed in a staff member’s OSF, nor a provision determining the notification to the staff member of such report. However, the fact that there is a lacuna in this respect does not mean that higher legal principles (such as due diligence and good faith towards staff members) cannot be applied to the case at hand to adjudicate on its merits. The Tribunal considered that the Administration, as custodian of all official records of staff members, is responsible for timely informing its staff members of a rebuttal’s result and, if requested, to timely provide them with a copy of a rebuttal panel’s report. Whether positive or negative, the outcome of a rebuttal process ought to be communicated to the concerned staff member as soon as possible. The Tribunal noted that the UNMIK Administration took almost two years and a half years after the submission of the rebuttal panel’s report to transmit it to the ASG/OHRM for placement in the Applicant’s OSF. The Applicant only got a copy of the rebuttal panel’s report over two years after the date of such report. The Tribunal found that by failing to timely provide the Applicant with a copy of the rebuttal report and to put it in the Applicant’s OSF, the Administration violated his due process rights under ST/AI/2010/5. Constructive Dismissal The Tribunal noted that while actions of the Applicant’s FRO may have been such that the Applicant did not see any other option for a remedy but to resign from the Organization, the Tribunal recalled that any claim relating to the Applicant’s complaint under ST/SGB/2008/5 was not receivable.