The non-renewal of the Applicant’s appointment was predicated on her harassment complaint of 12 April 2012 against her supervisor. The Tribunal finds and holds that the three elements for a grant of an order for suspension of action have been established in this case.
The UNDT found that the non-renewal appeared to be based on a mission-wide retrenchment exercise and that it appeared that the Applicant served in an occupational group and against a functional title impacted by the downsizing of MINUSTAH. The UNDT found that there was no evidence before it to indicate that the panel responsible for carrying out a comparative review of the affected staff members erred in applying the agreed evaluation criteria when assessing the Applicant and other staff members in the related category.Outcome: The application for suspension of action was rejected.
Following the filing of the application for suspension of action, the Respondent filed a submission stating that UNAMA had agreed to allow the Applicant to retain a lien against her post and, accordingly, the application should be dismissed as moot. In response, the Applicant submitted to the Tribunal that, although UNAMA had agreed to grant her a lien on her post, as a result of this decision not made earlier, she would be placed on special leave without pay due to the exhaustion of her sick leave and annual leave days, pending finalization of arrangements for temporary employment in New York...
The contested decision was to go into effect on 1 June 2012. The initial papers were received by the Tribunal on 29 May 2012, and the Applicant subsequently re-filed her papers as proper application on 30 May 2012. The UNDT found that the urgency in this case was created by the Applicant as she was aware of the contested decision at least since 13 April 2012, and yet filed her proper application only two working days before the decision was to be implemented, providing no explanation for not filing it earlier. As the condition of particular urgency was not met, the UNDT did not find it...
Assessment of irreparable damage in relation to non-selection decisions: The applicant was not the only recommended candidate and, therefore, it could not be concluded that he would have been selected for the litigious post. Accordingly, he failed to show that the implementation of the contested decision would cause him irreparable damage.
The Respondent is in breach of the first order for suspension of action (UNDT/2012/029) – merely providing a different reason for the non-renewal does not obviate the need to abide by the original order.
The UNDT found that the Applicant had previously resigned from a temporary appointment and was reemployed on the understanding given to her by MINUSTAH that the period of 364 days, following which she may have to take a break in service, would start running on the date of her new temporary appointment. The UNDT found that the conditions for a suspension of action were met and ordered suspension, during the pendency of the management evaluation, of the implementation of the decision. Outcome: The UNDT ordered suspension of action on the contested decision pending management evaluation.
Administrative decision: A decision imposing to a staff member an obligation to report to work may not be said to be purely preparatory in nature, as it has effects on his or her terms of appointment. As such, it is a decision open to appeal before the Tribunal. Interim measures: The Tribunal may only grant suspension of action on a decision as an interim measure under articles 10.2 of the Statute and 14 of the Rules of procedure during the proceedings of a case, that is, when there is an application against the same decision pending before it. Management evaluation/receivability of suspension...
The Applicant submitted that she has a legitimate expectation of renewal and that the decision not to renew her contract was motivated by extraneous considerations. The Respondent submitted that the decision was taken as a result of UNMIT’s downsizing in view of its eventual closure. The UNDT found that the requirement of urgency was satisfied. The UNDT found that the requirement of prima facie unlawfulness was also satisfied as the reason provided by the Respondent in support of the contested decision appeared to be unsupported by the facts and the documents in this case. The UNDT also found...
Outcome: The application was rejected. The UNDT found that the Applicant failed to demonstrate that the implementation of the contested decision would cause her irreparable damage.
