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Receivability The Respondent challenged the receivability ratione materiae of the application, arguing that the final administrative decision was notified to the Applicant on 24 November 2016. The Tribunal found that no final decision had been taken on 24 November 2016, and that the matter was being further reviewed, on the basis of new elements and discussions, inter alia, with the President of ICTY. Therefore, by filing her request for management evaluation on 21 January 2017, against the communication of 29 November 2016 denying her release, the Applicant respected the statutory deadline of...

The Tribunal had to determine whether a valid contract existed between the Applicant and UNISFA, and, in the affirmative, whether the decision not to proceed with his on-boarding was illegal. The Tribunal considered that for the conditions of Gabaldon to apply, it is necessary that the offer of employment extended to a candidate be based on a selection decision made by the person disposing of the relevant delegated authority. Legal framework for delegation of authority to make the selection decision The Tribunal was of the view that at the time of the contested decision in accordance with the...

To determine the legality of the contested decision, the Tribunal examined: Whether the first PIP complied with the applicable rules The Tribunal found that the duty to inform the Applicant of his shortcomings and to assist him in improving his performance was fulfilled by his supervisors, particularly the FRO. The documentary evidence and the testimonies during the hearing showed that the Applicant was made aware early on and on different occasions of his performance shortcomings and confronted with them. Efforts were also made to clarify the goals to achieve and to provide support to the...

Receivability The Tribunal noted that the time UNMIK’s Administration took to provide the Applicant with a copy of the outcome of his rebuttal, and to transmit the rebuttal panel’s report to OHRM in New York in order for it to be placed in the Applicant’s OSF, are both administrative inactions susceptible to affect the Applicant’s rights stemming from ST/AI/2010/5 (Performance Management and Development System). Almost twenty months elapsed between the completion of the Applicant’s rebuttal and UNMIK’s transmission of the rebuttal panel’s report to OHRM. During that period, the Applicant’s...

If all candidates are treated in the same manner, there is no discrimination. The candidates for the job opening were treated equally with regard to the notice given to scheduling of interviews and taking of the written assessment. This may not have been ideal and represents poor managerial practice, but without evidence in support of any ulterior motive or how the failure to give the five working days’ notice prejudiced the Applicant, the Tribunal does not find that this failure amounted to discrimination per se (see Lennard UNDT/2014/044, at paras. 34 to 37). The definition of an “assessment...

In circumstances where an applicant is not provided with the whole of the documentation involved in a matter sought to be brought before the Tribunal, it is essential that as material is provided to an applicant there be a right to amend an application. To not allow the amendment of the application would not “do justice to the parties” or “lead to the fair disposal of the case”. Clearly, not permitting an amendment of the application when the true state of affairs is revealed for the first time by the Respondent would offend the inherent obligations of the Tribunal consistent with the...

The Tribunal finds it noteworthy that in relation to functional delegation of authority, the person in whom authority is vested by virtue of his/her position/function has the power to delegate that authority. However, such delegation does not equate to the delegator definitively ridding himself/herself of the powers and authority that he or she delegates. Legally, a delegator continues to maintain the powers and authority that he or she has delegated, and such delegation is thus revocable at any time. Therefore, both parties’ arguments that the USG/OIOS could or should have “surrendered” her...

From both the testimonies and the documentary evidence before the Tribunal, it found as established that the dire financial situation at UNDP KCO, as it related to the “11888 fund”, was the reason for the non-renewal of the Applicant’s contract. The Applicant did not produce any evidence allowing the Tribunal to conclude that at the time of the contested decision, the “11888 fund” still had funds to allow the Organization to renew her contract. While it is not contested that an incident occurred during the mission to Rwanda in 2014, the Tribunal does not find that the testimonies and...

The Tribunal was of the view that, essentially, the Applicant attempted to create an administrative decision in an attempt to contest it. Whilst the approach discloses some imagination on the part of the Applicant, the absence of a response by the High Commissioner to the Applicant’s request does not create any direct legal consequence for him. Thus, there is no administrative decision, directly or by implication, that the Tribunal would have jurisdiction to consider. The Applicant has no right to make an appeal in respect of matters to which he was not a party. Indeed, the Applicant did not...

Pursuant to ITC/EDB/2015/07, when a fact-finding panel is appointed, it shall investigate the complaint and “prepare a detailed report, giving a full account of the facts that they have ascertained in the process and attaching documentary evidence” (sec. 5.18). The report shall be submitted to the Director, DSP, who will review it together with the related documentation and make a recommendation on the appropriate course of action to the Executive Director, ITC (see secs. 5.15, 5.18, 5.19 and 5.20). Seeking assistance from OIOS was a reasonable solution in the framework of ITC/EDB/2015/07...