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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...

Pleadings - A defence to a claim must say which of the allegations in the particulars of claim are admitted, which are denied and which allegations the defendant is unable to admit or deny, but requires the claimant to prove. Every allegation made in a claim should be dealt with in the defence. Where an allegation is denied, this normally implies that the defendant intends to put up a positive case to the contrary. Where the defendant denies an allegation, he must state his reasons for doing so; and if he intends to put forward a different version of events from that given by the claimant, he...

The Applicant’s letter of appointment stated that his appointment was subject to termination in the interest of the Organization, as determined by the Secretary-General. By signing his letter of appointment, the Applicant agreed that his appointment could be terminated, in addition to the reasons stated in the staff regulations and rules, this additional discretionary clause. The Tribunal considers that the determination of the interest of the Organization is the Secretary’s General exclusive attribute and the circumstances under which the Secretary-General is to determine “the interest of the...

Due Process: UNAT concluded in Molari that “disciplinary cases are not criminal.” So therefore the right and rules pertaining to self-incrimination are purely associated with criminal procedure and therefore does not apply in this instance which is a disciplinary case. The Tribunal finds that she was provided systematically with the evidence, including the payslips in the course of the interview, in addition to an opportunity to review the record of interview. Ultra vires: In this case the person who took the decision as recorded in the letter of dismissal was the Under Secretary-General for...

Effect of the breach of due process rights: The Tribunal found that while the Applicant had been denied some of his due process rights at the investigation stage, this breach was cured by the subsequent court proceedings. Further, the Tribunal held that the sanction of summary dismissal was fully justified in view of: (i) the status of the Applicant in the procurement process of ECA; (ii) the fact that he contracted with United Nations vendors without disclosing that fact in clear terms; and (iii) the fact that he was engaged to some extent in the activities of two other companies without...

Due Process: It is UNAT jurisprudence that based on the staff rules there is no mandatory right to counsel for staff members who are undergoing interviews during the preliminary investigation of allegations for misconduct. Ultra vires: The author of the decision in this case was not the person who signed the 15 August 2011 dismissal letter but, as referred to in the letter, was the Under-Secretary-General for Management who took the decision on behalf of the Secretary-General. Pursuant to ST/AI 371/Amend.1, the decision-maker had the proper authority to do so and the decision was not ultra...

Classification - There is no evidence that the procedure for a re-classification of the Broadcast Technology Officer (“BTO”) post encumbered by the Applicant in UNMIS was ever undertaken. As already pointed out, the Chief of radio took it upon herself to re-write the competencies of the post to which in January 2010, the Applicant had been competitively recruited before she came on board as Chief of radio, perhaps in order to make the Applicant who was encumbering the post, less eligible.

Delegated Authority - The termination decision was taken without the requisite delegated authority...

Failure to file a reply: The Tribunal held that when a Reply is due in accordance with art. 10.1 of the UNDT Rules, the Respondent is required to comply with his obligation. He may not choose to file a Motion to have receivability considered as a preliminary issue or any other motion in lieu of his Reply. Subsequently, the only available remedy for the Respondent who fails to file a reply within the prescribed timeline is to seek leave of the Tribunal to be entitled to take part in the proceedings. Summary judgment: Noting that under art. 19 of the UNDT Rules, a party is entitled to judgment...

Improper motives: The Tribunal held that the non-renewal of the Applicant’s contract was motivated by improper motives in view of the fact that: (i) the Applicant’s relationship with the UN Humanitarian Coordinator (HC), under whose leadership the Applicant was working, was hostile; and (ii) the HC and the Applicant’s deputy, who had unsuccessfully competed for the Applicant’s post, had gone to great lengths to undermine him and to tarnish his reputation with OCHA leadership.

Performance: The Tribunal held that while the Applicant may have made mistakes, shown an excessive zeal, or may have...

The Applicant had argued that the written reprimand was a veiled disciplinary measure and as such there was no need to request a management evaluation. The Tribunal does not agree as it is for the Tribunal to make a determination as to whether the sanction was a veiled disciplinary measure or not. In view of the preceding, the Tribunal finds and holds that the Applicant’s claims contesting the managerial action of a written reprimand are not receivable as they were never submitted to a management evaluation as required under art. 8(1)(c) of the Statute of the Tribunal. As stipulated at para. 5...