51�Թ�

Neither the intial placement of the Applicant on ALWOP nor any of its extensions could be separated; each extension of the same ALWOP decision triggered a challenge; of all the previous related decisions. The challenge of any extension of the ALWOP was a challenge of the entire continuum of ALWOP, previous or supsequent. The placement of the Applicant on ALWOP fell below the required threshold for the Respondent/decision-maker to show that exceptional circumstances existed to support it. It was unjust and unlawful to place the Applicant on ALWOP for twelve consecutive months. UNDT ordered the...

The Tribunal recalled that a request for management evaluation is a sine qua non for bringing an application except in cases where the advice was obtained from technical bodies, as determined by the Secretary-General, or of a decision taken at Headquarters in New York to impose a disciplinary or non-disciplinary measure. In the present case, there was no decision imposing disciplinary or administrative measures. The Applicant did not request management evaluation of any administrative decision related to the conduct of the investigation. The failure to seek management evaluation before...

Was the investigation properly conducted? The alleged lack of transparency There were indeed “exceptional circumstances” that justified the disclosure of the investigation report to the Applicant. Since the Applicant was granted access to the investigation report and all relevant documents at the judicial stage, prior to the hearing and in order to prepare for it, the Tribunal considers that the Applicant had the opportunity to have all the elements required to properly present his case before the Tribunal. While it would have been more appropriate for the Organization to provide the Applicant...

The Tribunal, after hearing evidence and submissions but before reaching a determination on the merits of the case save for a finding of procedural error, decided that this was an appropriate case in which to invoke art. 10.4 of the UNDT Statute to seek the concurrence of the Secretary-General to remand the case for institution or correction of the required procedure. The Tribunal considered it appropriate to approach the Secretary-General directly and not through Counsel who represents the SecretaryGeneral as the Respondent in this case. The Tribunal considered that such an approach would: (i...

Receivability The Tribunal found that the ASG, OHRM’s failure to take action on the Applicant’s complaint almost nine months after its filing, taking into account only the period that preceded the request for management evaluation, is a clear violation of the provisions of ST/SGB/2008/5. The Tribunal considered that the Administration’s failure to act on the Applicant’s complaint amounted to an implicit administrative decision that was subject to judicial review. The application was therefore considered receivable. Merits The Tribunal found that the failure to process the Applicant’s complaint...

Preliminary matters Loss of Applicant’s professional emails (potential evidence): One of the Applicant’s main arguments was that allegedly exculpatory evidence in her case (emails from and to the Applicant) had been lost which affected her due process rights, thus rendering the investigation unfair and improper. The Tribunal found that the alleged email evidence was not destroyed wilfully. Rather, it was destroyed as a consequence of the negligence of a number of people. The Tribunal noted that the investigators have a very high duty to locate and preserve evidence. The investigators are also...

The issue of disclosing an investigation report is not new. It was, in fact, considered by this Tribunal in its judgments Adorma UNDT/2010/205 and Haydar UNDT/2012/201 as well as by UNAT in judgment Ivanov 2015-UNAT-519. In the latter, UNAT entered into consideration of the non-disclosure of an investigation report despite the fact that the Secretary-General had questioned the UNDT’s jurisdiction over such a decision. The Organisation’s obligations as stipulated in ST/SGB/2008/5 are an integral part of a staff member’s contractual rights. They include the obligations of the Organisation and...

It was reasonable for the responsible official to determine that the status and management of the UNJSPF is a legitimate subject of concern to staff at large and therefore comments made by staff representatives about the management of UNJSPF concern work-related issues. In this regard, the Tribunal notes that staff rule 8.1(f) entitles staff representative bodies to effective participation in identifying, examining and resolving issues relating to staff welfare, including conditions of work, general conditions of life and other human resources policies. It also was reasonable for the...

By not seeking the Medical Director’s feedback in a timely manner, the Registrar failed to take into consideration relevant matters before making the contested decision. The decision-making process was vitiated by a defect that rendered the contested decision irrational. The delay in the handling the Applicant’s complaint was unjustified. The Administration lawfully acted within its discretion in fulfilling its obligations under sec. 6.4 of ST/SGB/2008/5. The contested decision is rescinded and remanded to the IRMCT. The IRMCT shall review, in consultation with DHMOSH, whether additional...

The decision not to renew the Applicant’s appointment beyond 15 January 2020 was superseded by subsequent decisions that resulted in the Applicant’s appointment being renewed to June 2020. Other than alleging that bias and an abuse of authority led to the superseded decision, the Applicant failed to demonstrate to the Tribunal how his rights remained adversely affected by the contested decision.