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UNDT/2018/004

UNDT/2018/004, Fan

UNAT Held or UNDT Pronouncements

The parties disagreed as to the date the contested decision was notified to the Applicant and the Tribunal had to determine which of the communications triggered the running of the 60-day time limit to request management evaluation.; It was uncontested by the Applicant that he was informed, unequivocally, by his manager on 28 October 2015, that his contract was going to be terminated effective 31 January 2016 and that he was being placed on special leave with full pay as of 1 November 2015. He was also unequivocally informed on that date that he would no longer have access to his emails and shared drives, and that he had to clear his office.; In the letter of 28 October 2015, even if it was handed over to him on 29 October 2015, the suppositions informing the decision conveyed on 28 October 2015 had not altered; clearly, the intention of that second written communication was not to revisit the earlier decision (Afeworki 2017-UNAT-794), communicated on 28 October 2015. Rather, that second communication dated 28 October 2015, assuming it was handed over to the Applicant only on 29 October 2015, was a mere reiteration of what had been notified to him orally, and in writing through the aide mémoire, on 28 October 2015.; Therefore, and independently from the question whether some of the sub-decisions contested by the Applicant were accessory to the decision to terminate his fixed-term appointment, the Tribunal found that by filing his request for management evaluation on 28 December 2015, the Applicant was late by one day. The application was therefore not receivable ratione materiae.; The Tribunal also noted that the decision to communicate his name to external stakeholders as a staff member who was not selected, as well as the decision to install an automatic reply message unilaterally on his email from 28 October to 2 December 2015, informing that he had left the Organization, are no administrative decisions for the purpose of art. 2.1(a) of the Tribunal’s Statute.

Decision Contested or Judgment/Order Appealed

The Applicant contested the “abolition of posts”. Under grounds for contesting the administrative decision, he referred to the decisions to: a)dismiss [him] from work and impose paid leave from 1 November 2015 to 31; January 2016,; b)cut off [his] access to the electronic system of the organization and the shared files on the common drive as of 28 of October 2015,; c)request [him] to clear [his] office before the end of [his] contract; d)communicate to external stakeholders [his] name as a staff member who was not selected without explicit permission by [him] and without the necessary measures to ensure confidentiality; e)install an automatic reply message unilaterally on [his] e-mail in the period 28; October – 2 December 2015, stating that [he had] left the organization, and f) terminate [his] contract before its expiration date.

Legal Principle(s)

Time limits have to be observed and enforced strictly (Mezoui 2010-UNAT-043; Diab 2015-UNAT-495; Kissila 2014-UNAT-470; Afeworki 2017-UNAT-794) and failure to file a timely request for management evaluation leads to an application being irreceivable, ratione materiae (Egglesfield 2014-UNAT-402; Kazazi 2015-UNAT-557); Reiterations or repetitions of the same administrative decision in response to a staff member’s communications do not reset the clock with respect to the applicable time limits in which the original decision is to be contested (Sethia 2010-UNAT-079; Aliko 2015-UNAT-539, Staedtler 2015-UNAT-546). Also, pursuant to art. 8.3 of its Statute, the Tribunal cannot waive or extend the deadline for management evaluation (Costa 2010-UNAT-036; Sethia 2010- UNAT-079; Ajdini et al. 2011-UNAT-108); Staff members have to ensure that they are aware of Staff Regulations and Rules and the applicable procedures in the context of the administration of justice in the United Nations’ internal justice system and ignorance of the law is no excuse for missing deadlines (Staedtler 2015-UNAT-546, Amany 2015-UNAT-521); The date of an administrative decision is based on objective elements that both parties (Administration and staff member) can accurately determine (Rosana 2012-UNAT-273; Kazazi 2015-UNAT-557); A notification of a contested decision can be either verbal (oral) and/or in writing (Jean UNDT/2016/044).

Outcome

Dismissed as not receivable

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The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.