¹ú²úAV

The Tribunal finds that the Respondent has complied with every aspect of the regulatory framework. Specifically, regarding the complaint that the Applicant was not provided with details of the allegations that led to the investigation, there is no requirement for such disclosure when informing a staff member that they will be placed on leave with pay at the initial stage of an investigation. This differs from the circumstances where the decision being made is placement on leave without pay. There is no indication that the Respondent acted other than in full compliance with the regulatory...

UNDT found the application materially receivable as it concerned a decision that was appropriately the subject of judicial review. UNDT found that the decision to reassign the Applicant rather than place her on administrative leave, was taken balancing her best interest with those of the Organization. These reasons were supported by evidence. The Tribunal further held that the Applicant failed to meet her burden of proving any improper motive, irregularity or unlawfulness on the part of the Respondent in the decision to re-assign her duties. UNDT therefore held that the presumption of...

The challenge against the UMOJA process and its automated response to the Applicant, as articulated in this application, is therefore not receivable ratione materiae. If there was no action taken in the Applicant¡¯s precise individual case but there was only general action applicable to all staff members, there is no administrative decision for purposes of pursuing a receivable appeal to the Tribunal. If the action that is challenged produced no direct legal consequences, this is a further lacuna in the subject matter of an appeal that renders it not receivable.

Relevant matters were ignored. The timing and circumstances of the Applicant¡¯s appraisals, sick leave taken, the nature of the four-month assignment in 2018 and the reasons for it, are relevant. These factors have been considered in coming to a determination that a proper exercise of the Respondent¡¯s discretion would have been to consider an appraisal of the Applicant¡¯s work for the four-month period in 2018. The Applicant was on sick leave for the first seven months of the year but there is no provision in the regulatory framework indicating that the appraisal for a shorter period of work...

The Applicant¡¯s complaints were remanded once more to the Respondent for a proper investigation in compliance with the regulatory framework. The Respondent is to provide the Applicant with a copy of her interview transcript and summary (if any) prepared by outside provider and used in the prior investigation.

The finding of non-receivability depends to an extent on one¡¯s perception as to the finality of words used in the decision email. There is a degree of uncertainty and the issues raised on the merits are of general interest. Therefore, applying the approach taken by the United Nations Appeals Tribunal (¡°UNAT¡±) in Haq and Kane 2019-UNAT922 the issues related to the merits of the case will also be determined. The challenged decision was not part of a process with many steps. It was complete in and of itself and was clearly expressed as a termination decision with a specific date. The fact that...

When termination was the possible outcome of the investigation, each allegation of misconduct must be established by clear and convincing evidence; in other words, the truth of the facts asserted must have been highly probable. The only rule cited as applicable in this case referred to a blood alcohol level as a measure of intoxication. The Applicant was not subjected to a blood test. TheTribunal found that there was no clear or convincing evidence before the Respondent that the Applicant drove while intoxicated. There is no rule prohibiting United Nations staff from having a drink of alcohol...

The offences alleged in the instant case were of a complex nature and were framed in a manner that required several discrete facts to be established so that a sanction of separation could be justified. Each element of the allegations of misconduct the Administration found to have been established was therefore subject to review. With the account of one person to be weighed against another, the Respondent had to properly consider issues of credibility on the record. There was no indication that the Respondent considered the two possible motives. The Applicant¡¯s case was that the disciplinary...

The offences alleged in the instant case were of a complex nature and were framed in a manner that required several discrete facts to be established so that a sanction of separation could be justified. Each element of the allegations of misconduct the Administration found to have been established was therefore subject to review. With the account of one person to be weighed against another, the Respondent had to properly consider issues of credibility on the record. There was no indication that the Respondent considered the two possible motives. The Applicant¡¯s case was that the disciplinary...

The acts of sexual harassment committed by the Applicant were of such a persistent and offensive nature that in keeping with the Organization¡¯s zero-tolerance policy he could not remain on the job. However, the Organization¡¯s policy on care and support for persons suffering with mental illness was also clear. The Applicant¡¯s behaviour was influenced by severe mental illness. The illness ought to have been addressed in a more timely and considerate manner by the Respondent by denying his clearance to return to work in March 2015 and in August 2016. He may then have retired due to ill-health...

The Applicant sought review of the impugned decision by the Management Evaluation Unit on 1 November 2019, but did not receive a response until 23 June 2020. The application was time barred.

Having proposed closure of the Kamina site to the General Assembly and the corollary budgetary reductions, the Respondent proceeded with the implementation of his proposal. The natural consequence of this process was that the Applicant was left with no tasks to perform. The decision did not amount to a de facto termination by cutting; short the Applicant¡¯s appointment. The appointment continued until the expiration date on 30 June 2019 but was not renewed due to the abolition of the post. There was nothing in the parties¡¯ submissions to show that the decision was perverse or tainted so as to...

The Applicant indicated that he had been promised during a pre-interview presentation that the names of the assessors would be provided. The Respondent failed to present a plausible, or indeed any, basis for the non-response to the Applicant¡¯s proactive inquiry as to the names of the assessors. It would have been proper, under the circumstances, for the Respondent to either dispute the fact of the promise or provide the requested information. The Respondent¡¯s silence drew a finding of impropriety. If the Applicant had received the assessors¡¯ names, he would have had the opportunity to raise...

The Respondent repeatedly told the Applicant in writing from July 2018 to May 2019 that there was no change in his functions, and he was to perform the same duties that had always been assigned in Ramallah. The Respondent¡¯s many reiterations, up to May 2019, of the position made clear since September 2018 did not give rise to a new challengeable decision so as to bring forward the time within which a request for management evaluation could be made.; In accordance with staff rule 11.2(c) it was incumbent on the Applicant to challenge, in a timely manner, the underlying decision and any alleged...

Having proposed closure of the Kisangani site to the General Assembly and the corollary budgetary reductions, the Respondent proceeded with the implementation of his proposal. Rather than reduce the term of the Applicant¡¯s appointment, the Respondent opted instead to lighten the footprint in the Kisangani site by having those; whose services were no longer necessary to go home but without it affecting their benefits or entitlements. The natural consequence of this process was that the Applicant was left with no tasks to perform. While this may have been an unorthodox arrangement, nothing in...

The required facts for a finding of sexual exploitation were not proven clearly, or at all, such that a decision to impose the sanction of separation could have been justified. There was also a failure to consider relevant evidence as to a prior courtship relationship between the parties that if considered would have shed further doubt on whether the Complainant was exploited. There was no factual basis for the investigators and the Respondent to have found that there was a relationship of trust that could have been abused. The Complainant was not a beneficiary of assistance from the United...

The Applicant¡¯s view of the broadcast as an implied decision refusing to re-assign him was not receivable because the refusals commenced as far back as 2014. Neither this application nor the request for management evaluation preceding it were made within the time limit for receivable challenges to these decisions. There was no administrative decision concerning negligent handling of the Applicant¡¯s medical concerns as alleged in the application. The broadcast was not a reviewable decision because the Applicant suffered no adverse results. At all times the Applicant was on paid sick leave...

The alleged failure to protect the Applicant from further retaliation is not a contestable administrative decision as it does not have legal consequences on his terms of employment. Therefore, this part of the Applicant¡¯s case is not receivable. The Ethics Office¡¯s recommendation only required that ¡°efforts be made¡±, in consultation with the Applicant, to transfer him to either a position in the specialized units in his section or to another position in his department. According to the recommendation, the Applicant had no right to be transferred to a position outside his section.; The Ethics...

The alleged failure to protect the Applicant from further retaliation is not a contestable administrative decision as it does not have legal consequences on his terms of employment. Therefore, this part of the Applicant¡¯s case is not receivable. The Ethics Office¡¯s recommendation only required that ¡°efforts be made¡±, in consultation with the Applicant, to transfer him to either a position in the specialized units in his section or to another position in his department. According to the recommendation, the Applicant had no right to be transferred to a position outside his section. The Ethics...

The evidence shows that the Applicant was never separated from the Organization. The Applicant¡¯s request to be placed on a post at the D-1 level post is therefore moot. The outcome of the complaint of harassment was not included in the management evaluation request as such complaint was, at the time, still under investigation. The Tribunal has no jurisdiction to review that administrative decision because it was not reviewed by the management evaluation unit under art.8.1(c) of the Tribunal¡¯s Statute. Related