UNDT/2021/094, Applicant
It follows from the case record that the reasons for rejecting the Applicant’s return-to-work plan on 13 May 2019 were only presented to the Applicant in the Respondent’s reply submitted by Counsel for the Respondent. This was evidently a procedural error. The scope of this irregularity was exacerbated by the statutory requirement of sec. 2.2 of ST/SGB/2019/3, which demands “the manager … to establish that the requested accommodations represent a disproportionate or undue burden on the workplace†(italics added). The Applicant’s manager was not Counsel for the Respondent before the Dispute Tribunal. After almost eight months of the Applicant having already served on a return-to-work plan that limited her work capacity and facing a particularly busy period, it was not unreasonable for the office to require the Applicant to fully reassume her duties, at least until the workload had diminished, in order to avoid a disproportionate or undue burden on the workplace in accordance with sec. 2.2 of ST/SGB/2019/3. While the untimely provision of the reasons is regrettable, this did not impact the contested decision or the Applicant’s possibility of subsequently accessing justice before the Dispute Tribunal. Similarly, whereas under sec. 2.2 of ST/SGB/2019/3, it was for the Applicant’s manager to establish that the requested accommodations represented a disproportionate or undue burden on the workplace and not Counsel for the Respondent, this error was not of such significance that, by itself, it rendered the decision unlawful. Rather, it would appear that for the preparation of the reply, Counsel for the Respondent had sought information from the Applicant’s manager, who then provided the belated reasons. It is also telling that the Applicant has not made any submissions regarding the delay in providing reason(s) and therefore by herself has not claimed prejudice from any of the identified procedural irregularities. By rejecting the Applicant’s return-to-work plan on 13 May 2019, the Administration did not exceed its scope of discretion under Sanwidi.
The decision to stop implementing a return to work plan approved by the Medical Services .
The Dispute Tribunal has the inherent power to individualize and define the administrative decision challenged by a party and to identify the subject(s) of judicial review. When defining the issues of a case, the Dispute Tribunal may consider the application as a whole. A judicial decision will be moot if any remedy issued would have no concrete effect because it would be purely academic or events subsequent to joining issue have deprived the proposed resolution of the dispute of practical significance; thus placing the matter beyond the law, there no longer being an actual controversy between the parties or the possibility of any ruling having an actual, real effect. Since a finding of mootness results in the drastic action of dismissal of the case, the doctrine should be applied with caution. When judging the validity of the exercise of discretionary authority, the Dispute Tribunal determines if the decision is legal, rational, procedurally correct, and proportionate. This means that the Tribunal can consider whether relevant matters have been ignored and irrelevant matters considered, and also examine whether the decision is absurd or perverse. It is not the role of the Dispute Tribunal to consider the correctness of the choice made by the Secretary-General amongst the various courses of action open to him†or otherwise “substitute its own decision for that of the Secretary-General. The Dispute Tribunal is not conducting a merit-based review, but a judicial review, which is more concerned with examining how the decision-maker reached the impugned decision and not the merits of the decision-maker’s decision. The Administration must disclose its reason(s) for an administrative decision upon the request of a concerned staff member. Such reason(s) must be supported by correct facts, ), which also implicitly follows from the Administration’s duty to act fairly, justly and transparently in dealing with its staff members. The reason(s) should, at latest, be provided at the management evaluation stage in order to allow the staff member to fully consider her/his further options, including in terms of whether to file an application to the Dispute Tribunal. It is good practice for the Organisation to provide a general guidance for its managers that a well written statement of reasons, albeit sometimes succinct depending on the circumstance, is fundamental for the correct identification of the matters, concerns and reasoning process of the decision-maker, as well as for the accurate implementation, which will more likely reflect the decision maker’s intent. This practice provides better grounds of adequate explanation for those adversely affected by these decisions, perhaps even facilitating their acceptance and hence diminishing instances of disputes. In short, there is a threefold purpose for providing reasons for decisions, which is intelligibility (enabling both implementation and acceptance), accountability and reviewability. In accordance with sec. 2.2 of ST/SGB/2019/3, a return-to-work plan is “a time-limited programme†in order “to accommodate medical restrictions or limitationsâ€. The plan is therefore by definition a transitional and temporary arrangement that, due to a medical condition of a staff member, is installed to eventually allow her/him to fully resume her/his functions. Whereas no maximum time limit is given on how long time this arrangement can be in place, it is clear that it is not intended to be a permanent feature.