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A staff member’s duty to abide by managerial instruction lies at the heart of employment relationships and the Tribunals are expected to accord a measure of deference to managerial authority, including in setting performance standards (see, Applicant 2020-UNAT-1030, para. 34).

The Applicant has not demonstrated any procedural or substantive breach of his rights. In the absence of any evidence that the performance standards applied by UNICEF are manifestly unfair and irrational, the Tribunal cannot substitute its decision for that of the decision-maker to overturn the contested decision.

Accordin...

The Tribunal decided to dismiss the application.

In the light of the facts established and the finding of misconduct, the three allegations mentioned in the sanctioning letter, relating to ‘sexual molestation’, constitute ‘serious misconduct’ under the terms of paragraph (b) of Staff Regulation 10.1. In addition, under paragraph (a) of Rule 10.2 of the Staff Rules, on the basis of which the sanction was imposed, dismissal is a possibility.

Dismissal is one of the most severe sanctions that can be imposed in an administrative or employment matter. However, a more lenient sanction would leave open...

The Tribunal found that the Respondent was not able to demonstrate that the facts on which the disciplinary measure was based were established by clear and convincing evidence, as otherwise required by the Appeals Tribunal in its jurisprudence.

Having found that the facts on which the disciplinary measure was based had not been established by clear and convincing evidence, the Tribunal also found that there was no established misconduct by the Applicant.

Given the finding of absence of misconduct by the Applicant, the Tribunal also rescinded the sanction imposed on him.

The Tribunal noted that, as stipulated in sec. 5.1 of ST/AI/2017/1, “OIOS retains the ultimate authority to decide which cases it will consider and shall determine whether the information of unsatisfactory conduct received merits any action”.

Accordingly, the Tribunal found that the contested decision was lawful.

As the decision by OIOS not to open an investigation was found to be a lawful exercise of the Administration’s discretion, there was no basis for the referral of this case to the Secretary-General for possible action to enforce accountability.

It is not in dispute that the Applicant received notice of the contested decision on 8 May 2023 and that he only sought management evaluation in respect of the contested decision on 2 May 2024, approximately one year later. Since the management evaluation request was submitted outside of the statutory 60-day deadline stipulated in staff rule 11.2(c), the application is non-receivable ratione materiae (see, also, Christensen 2013-UNAT-335).

The Respondent’s motion for summary judgment was granted.

The Applicant failed to establish through clear and convincing evidence that the selection process for the Post was tainted by any unlawful actions or that he suffered any harm as a result of the contested decision. Accordingly, his application was dismissed and his claim for compensation was rejected.

The assertion that the Applicant had a reasonable expectation that his candidacy would receive special consideration since he had performed the functions of the Post for five years was misplaced. He did not seriously dispute the fact that the creation of the Head of Office position was not a...

Compensation in lieu is “not related at all to the economic loss suffered” (see Nega 2023-UNAT-1393,para. 62) and there is no duty to mitigate loss as a precondition for receiving in lieu compensation (see Zachariah 2017-UNAT-764). It is, according to the Tribunal’s Statute, an option that the Respondent can take instead of reinstating the Applicant in the service. Therefore, pecuniary loss or gain is not a relevant factor.

Consistent with the requirement to act fairly, justly and transparently, the Respondent bears the burden to show that the Applicant did not possess the core and functional...

The Applicant’s request for RC to prepare questions for the ACABQ members to ask the USG/OSAA about the issues that the Senior Managers had been contesting in the office was a breach of staff regulation 1.2(i) which provides that “[s]taff members shall exercise the utmost discretion with regard to all matters of official business. They shall not communicate to any Government, entity, person or any other source any information known to them by reason of their official position that they know or ought to have known has not been made public, except as appropriate in the normal course of their...

The Tribunal noted that under staff rule 11.2(a), requesting a management evaluation was indeed required, but the Applicant had not previously submitted the contested administrative decision for management evaluation. Accordingly, the Tribunal found that the application was not receivable.