����AV

Decision of a technical body: A rebuttal panel should be considered as a technical body as per the provision of staff rules 11.2(b). Consequently, a decision of a rebuttal panel is not subject to management evaluation as a prerequisite before filing an application before the Tribunal. The preeminent purpose of management evaluation is to reconsider the initial decisions taken by the Administration. Where such reconsideration is delegated to a specialized body, there is no need for further administrative review. Rebuttal panel: The panel’s mandate is fixed for two years and ST/AI/2002/3 did not...

Due process: The Tribunal held that there were two serious procedural flaws that violated the Applicant’s due process rights: (i) the UNICEF Handbook unduly restricted the grounds on which the Applicant could rebut her performance appraisal in a way not envisaged by ST/AI/2002/3; and (ii) By misinforming the Applicant and effectively causing her to abandon the other legitimate grounds of rebuttal she had intended to rely on, the Director of Human Resources flawed the whole rebuttal process. Rebuttal process: The Tribunal held that the rebuttal process was also flawed because the Rebuttal Panel...

The Tribunal rejected the Respondent’s argument that this was a case of non-renewal and found that the Applicant’s fixed-term contract was terminated on the grounds of alleged unsatisfactory performance for the period of 2007 to 2010. The UNDT found that the performance evaluation report (“PER”) for 2010 cannot be lawfully relied upon to justify the finding of unsatisfactory performance as the Applicant had no opportunity of a meaningful rebuttal. Therefore, the termination of the Applicant’s contract on the basis of poor performance was unlawful. The UNDT also found that no proper...

As regards her e-Pas reports, the Tribunal found that the ratings resulting from the rebuttal processes had replaced the initial ratings and that hence the e-Pas reports cannot be annulled. Concerning the inclusion in the OSF of documents arising from the rebuttal processes relating to her e-Pas reports, the Tribunal found that only the documents specified in ST/AI/2002/3 and ST/AI/2010/5 are to be included in her OSF. It also found that the irregularities in relation to her e-Pas reports were of such gravity as to render them meaningless and that they are thus not be included in her OSF. The...

The UNDT found that the Respondent’s argument that no promise had been made was untenable. The evidence clearly indicated that UNOPS Managers knew the Applicant would rely on the statements they made to her in regards to a one year contract extension. The Respondent repeatedly disregarded its own rules and regulations in the course of completing the Applicant’s performance appraisal and subsequently conducted a flawed rebuttal process which was biased and unfair and violated the Applicant’s due process rights. Promises made created expectancy of renewal - It is untenable for the Administration...

Promulgation of MONUSCO Administrative Instruction No. 2013/15: The Tribunal observed that MONUSCO Administrative Instruction No. 2013/15 is of general application to the extent that it applies to all MONUSCO personnel but it was not expressly issued for the implementation of any specific rules or ST/SGBs. However, it does not meet the requirements of ST/SGB/2009/4. Accordingly, the Tribunal held that the lack of promulgation of the AI does not of itself render the impugned decision null and void. Withdrawal of the Applicant’s driving privileges: The Tribunal found that MONUSCO Administrative...

The Tribunal held that the decisions to issue a Notice of Counsel and to require the Applicant to undergo remedial training did not affect his legal rights. The decision to place the Applicant on weapons restriction was procedurally flawed because, contrary to the Department of Safety and Security Manual of Instruction on Use of Force Equipment Including Firearms (“DSS Weapons MOI”), the Chief of the SSS did not state the expected duration of the measure. The Tribunal rescinded the decision to place the Applicant on weapons restriction without indicating the expected duration and ordered the...

The Tribunal found that a fundamental procedural flaw had occurred since the same staff member had fulfilled the roles of both the Applicant’s first and second reporting officers. However, no financial compensation was warranted, as the Applicant did not demonstrate that he sustained any material or moral damage stemming from this breach.

The Tribunal found that none of the alleged flaws was substantiated.

Although the proceedings of the rebuttal panel had been completed and notified to the Applicant in July 2011, he did not move the Tribunal to waive the deadlines pursuant to art. 35 of the UNDT Rules of Procedure. The Applicant was required to submit a request for management evaluation but he did not do so.