RECENT SUCCESSES AT THE TRIBUNALS

Ambe-Nibe – UNAT/2023/1365 (31 July 2023)

OSlA successfully represented the applicant in challenging a United Nations Joint Staff Pension Fund’s (Fund) decision to reject his request to issue a duplicate withdrawal settlement of his pension after he failed to receive the initial withdrawal settlement of his pension due to fraud.

The UNAT found that the Fund’s decision to reject the request to re-issue the lump sum was improperly made because there had not been proper fact-finding in relation to the key issues in the case.

Therefore, the UNAT ordered the case remanded back to the Fund’s Standing Committee to make additional factual findings.

The case is currently before the Fund’s Standing Committee.

Claude Cahn v. Secretary General of the United Nations, 2023-UNAT-1329

OSLA successfully represented the staff member in an appeal brought by the Administration seeking to overturn the United Nations Dispute Tribunal (UNDT) ruling in Cahn, UNDT/2022/022. In the UNDT ruling, the Tribunal held that the Administration had breached the duty of care it owed to the staff member for failing to take protective measures and prevent the harm he suffered as a result of alleged harassment and abuse of authority experienced in the workplace. Although the Administration ultimately took action to alleviate the workplace discord, it did not do so immediately upon being put on notice by the complaining staff member, and this delay resulted in compensable harm for which he was awarded 7 months of net-based pay.

In seeking to overturn this decision and award, the Administration’s appeal sought to limit the scope and application of its duty of care to staff, arguing that such a duty exists principally in high-risk duty stations or only where prohibited conduct is ultimately found to exist. The United Nations Appeals Tribunal (UNAT), by majority ruling, disagreed, and held that ensuring a harmonious workplace is a fundamental part of the employment relationship and that the Administration has an affirmative duty to take adequate measures that are both corrective, as well as preventive, in meeting this duty of care towards staff. Indeed, the UNAT held that this duty is an inherent part of the employment contract and a fundamental condition of service to be observed by the Administration “with due diligence and without delay.” In addition, it was noted that the applicable administrative issuance required the Administrative to take protective action as a preventive measure, regardless of whether prohibited conduct was ultimately found to have occurred, and that this was a necessary component to the Administration’s duty of care to ensure a harmonious working environment.

The UNAT upheld the UNDT ruling and concurred that an award of 7 months net-based pay was adequate compensation for the harm suffered by the staff member. The Administration’s appeal was dismissed.

Saleh – UNDT/2022/064 (30 June 2022)

OSlA successfully represented the applicant in challenging a disciplinary sanction of separation from service, with compensation in lieu of notice and without termination indemnity for abuse of authority and conflict of interest for allegedly pressuring employees of a contractor to hire certain individuals and for telling them that they worked for him.

The UNDT found that the Administration had failed to establish that the Applicant had made any of the hiring recommendations with any other motive than to undertake his duties. It also found that the Applicant’s superior had not given the Applicant any guidance on the appropriateness of the established practices of hiring workers.

The UNDT held that the Applicant’s behaviour did not amount to abuse of authority. It also determined that the Applicant’s recommendations did not amount to a conflict of interest.

Therefore, the UNDT concluded that the termination of the Applicant’s appointment was manifestly incorrect and led to a disproportionate outcome. It ordered the rescission of the contested decision and the payment of the Applicant’s full salary until the expiry of his fixed-term appointment in lieu of compensation. The UNDT rejected the Applicant’s claim for moral damages.

The appeal is dismissed on merits. The UNAT held that there was no reason why the Appeals Tribunal should intervene and modify the UNDT’s findings, which were both reasonable and equitable. (2023-UNAT-1368, Wassim Saleh)

Applicant – UNDT/2022/048 (23 May 2022)

OSlA successfully represented the applicant in contesting a disciplinary sanction of loss of five steps and deferment for two years of eligibility for consideration for promotion for allegations that he had made inappropriate comments towards the complainant and had failed to properly address her complaint of unwelcome behaviour. 

The UNDT found that the Administration had failed to establish several of the alleged inappropriate comments as well as the Applicant’s alleged failure to properly address the complaint about the unwelcome behaviour of a colleague. 

The UNDT noted that it was “not the intention of the drafters of ST/SGB/2008/5 to limit staff members’ “freedom of speech”, provided that the views are not expressed in their official capacity, do not cause any harm to the Organization or a colleague and do not have a negative impact on the work-environment.” The UNDT also found that a manager could not reasonably be blamed for taking certain actions or failing to take them when he did not have the necessary information. 

The UNDT concluded that there had been a miscarriage of justice in the case as the Applicant’s actions did not amount to misconduct and the disciplinary sanction was disproportionate and unlawful. It also found that some of the Applicant’s comments may not have been appropriate and accordingly found that the imposition of managerial action was not unlawful. 

The UNDT rescinded the disciplinary sanction and awarded USD 10,000 for loss of opportunity. 

The Administration did not appeal the judgment.

Peter Deupmann v. Secretary-General, 2022-UNAT-1221 (6 May 2022)

In this case, OSLA represented the Applicant to successfully contest the Organization’s decision to deny him portions of education grant on the basis that those fees claimed were not listed as “tuition” in the breakdown of costs provided by his children’s school, despite the fact that those costs were associated with activities that were mandatory and formed part of the curriculum as part of a government requirement. The UNAT defined “tuition fees” and “tuition related fees” as those associated with activities that formed part of the school’s curriculum, including those that formed part of a government requirement (i.e. where the school had no choice but to include these activities within its curriculum) and ruled that these fees were reimbursable by the Organization.

Van de Graaf – UNDT/2022/037 (22 April 2022)

OSlA successfully represented the applicant in contesting his unlawful separation following an altercation at his place of residence with a group of people who filmed part of the incident without his consent and published the recordings in the media. The UNDT considered that the sanction was disproportionate and replaced it with a measure of demotion by one level with two years deferment of eligibility for consideration for promotion. The UNDT also awarded two years’ net base salary in lieu of compensation if the Administration elects not to reinstate the Applicant. 

The UNDT found inter alia that the video recordings, on which the investigation and the accusations were almost exclusively based, were only a partial and imperfect representation of the events and that the investigation was inadequate. It also found that the Administration failed to consider many exculpatory and mitigating circumstances. The Tribunal noted that the Applicant was facing a hostile and aggressive environment and had a momentary loss of temper. When the situation escalated, he became the biggest loser and the victim of physical assault. The UNDT also found that the Administration’s reputational damage could not be attributable to the Applicant as the media echo was totally out of his control and created by third parties in bad faith and maliciously. 

UNAT dismissed the Administration’s appeal and affirmed Judgment UNDT/2022/037 (van de Graaf, UNAT/2023/1325 - 24 March 2023).

Songa Kilauri v. Secretary-General, UNDT/2021/107 (20 September 2021)

OSLA obtained the rescission of the Organization’s decision to terminate the Applicant’s fixed-term appointment for facts anterior pursuant to staff regulation 9.3(v), on the basis that his prior service contract had been terminated following an investigation into allegations of fraud against him.

The Applicant was found to have committed fraud based on an investigation report that had never been shown to him and on which he was not allowed to comment. There was no evidence indicating that the Applicant was permitted to identify exculpatory evidence or rebut any of the evidence relied upon by the investigation. Therefore, the UNDT concluded that the facts resulting from this investigation of fraud against the Applicant were not established to a sufficient standard that would permit the Administration to later rely on them to act against him once he became a staff member. Therefore, the UNDT rescinded the Organization’s decision to terminate the Applicant’s fixed-term appointment.

In the appeal, The UNAT modified the ruling of UNDT in part by affirming that Mr. Kilauri is entitled to receive any payments he would have been entitled to at the expiry of his fixed-term appointment other than termination notice or indemnities. The remainder of Judgment No. UNDT/2021/107 is affirmed. (2022-UNAT-1304, James Songa Kilauri)

Armand v. Secretary-General, 090 (NBI/2021) (30 April 2021)

In this case, OSLA obtained suspension of monthly deductions amounting to more than half of the Applicant’s salary for child support, based on a court judgment. On behalf of the Applicant, OSLA successfully argued that the court judgment, which formed the basis of the salary deductions, was not final and enforceable as it had been overturned in the local jurisdiction.

The UNDT observed that the Organization’s first duty as employer is to pay the staff members their salary and entitlements in return for the work rendered and emphasized that it is not a primary role of the Organization to execute family support orders, as is expressed by the applicable bulletin - ST/SGB/1999/4 (Maintenance, education and other support obligations of officials) - whose section 2 establishes authorizing deductions as discretionary. The UNDT noted that a decision to authorize deductions must be based on a court order that is unequivocal.

Where there is a lack of clarity in the disputed national court order, the Organization should err on the side of refraining from deducting from a staff member’s salary. 

In the appeal, the UNAT dismissed the appeal, finding it not receivable. The Tribunal explained UNDT decisions on applications for suspension of action are not subject to appeal, pursuant to Article 2(2) of the UNDT Statute. The Tribunal also noted that this case did not fall under the narrow exceptions when appeals against interlocutory orders are allowed, i.e. when it is alleged that the UNDT has exceeded its competence or jurisdiction. (2021-UNAT-1145, Jacques Armand)

Aslam - UNDT/2020/200 (3 December 2020)

OSlA successfully represented the applicant in challenging the decision rejecting his claim for compensation under Appendix D of the Staff Rules for service-incurred illness as time-barred. The UNDT found that the application was receivable as the Applicant had indeed requested management evaluation of the decision finding his claim time-barred and that earlier communications from the Administration to the same effect were not in response to a proper compensation claim.

On the merits, the UNDT found that the Advisory Board on Compensation Claims (ABCC) had rejected the Applicant’s claim without considering his argument that he missed the deadline due to incapacity. The UNDT also found that there was a valid assumption that the ABCC would require a claimant to provide evidence to elucidate any unclear area of the claim and the ABCC had not sought the views of the Applicant before rejecting the claim. Lastly, the UNDT ruled that the deadline for filing a claim should toll from the date of the incident or the date on which the staff member becomes aware or reasonably should have been aware of the injury or illness. Having found that there were fundamental flaws in the processing of the Applicant’s claim, the UNDT remanded the case for adherence to the right procedure. The Administration did not appeal the judgment.

Applicant – Order 217(NBI/2020) (3 November 2020)

OSlA successfully represented the applicant in obtaining a suspension of implementation of a decision to separate her from the Organization from UNDT until the completion of the management evaluation. The Applicant, a fixed-term appointment holder, had requested an extension of her appointment on humanitarian grounds. While emphasizing that a decision to extend a staff member’s appointment on humanitarian grounds is discretionary, the Dispute Tribunal found that the Administration failed to exercise its discretion correctly. It found that the decision was prima facie unlawful and suspended its implementation.

UNDT held that: “Administrative decisions must be made on proper reasons, and the Administration has a duty to act fairly, justly and transparently in dealing with its staff members. In this case no reasons have been given for the refusal to extend the Applicant’s employment. The Respondent’s silence also shows that there has been no transparency on their part.” 

Miksch et al – UNDT/2020/192 (16 November 2020)

OSlA successfully represented the Six Applicants, staff members of the Department of Safety and Security (DSS), in contesting their non-selection to five posts of Security Sergeant and were awarded compensation for loss of economic opportunity.

The Applicants submitted evidence showing that they had been unequivocally informed by DSS that their participation in the written assessment was not a requirement for the purpose of the selection process. However, their non-participation was later taken into consideration in the assessment of their candidatures with respect to other candidates. 

The Dispute Tribunal found that the Applicants had been misled and concluded that the Administration had violated its duty to act transparently and in good faith with its staff members.

On appeal, the UNAT reduced the amount of compensation granted to the Applicants (2021-UNAT-1165)

Loose - 2020-UNAT-1043 (30 October 2020)

The Applicant’s post was funded by extra-budgetary contributions. Several months before her contract expired, she received notice of non-renewal due to unavailability of funds because of arrears in contributions. However, before her contract expired, the Administration received a contribution sufficient to fund the post which the Applicant encumbered. Also, a budget including funding for her position was approved. Despite these developments, the non-renewal decision was not revised. 

OSlA successfully represented the applicant in contesting this decision. The UNDT rescinded the decisions not to renew the Applicant’s fixed-term appointment and to separate her from service. Although non-renewal decisions must be evaluated based on the situation prevailing when they are made, non-renewal decisions for unavailability of funds should reasonably be made upon a comprehensive budgetary assessment at the end of the financial year. Because the advance notice of non-renewal was not mandatory, “the Administration was under an obligation to verify whether the financial constraints precluding the renewal of the Applicant’s appointment continued to exist” until the expiration of her contract. The UNDT further ordered that the Applicant be paid one year of net base salary should the Organization elect not to reinstate her in service. 

On appeal by the Administration, the UNAT upheld the UNDT judgment finding that in cases of non-renewal for lack of resources, once the staff member has established an apparent case of sufficient resources to support a renewal, the burden shifts to the Administration to prove the reasons not to renew the appointment. Therefore, as the Administration had not furnished evidence to counter the Applicant’s, although it was better placed to have access to it, the UNDT had not erred in finding the non-renewal unlawful.

Civic - 2020-UNAT-1069 (30 October 2020)

The Administration filed an appeal after the Applicant, with OSlA’s representation, had successfully contested a constructive dismissal resulting from her supervisor’s decision to deprive her of her core functions. The Applicant had been awarded compensation for moral damage in the amount of six months’ net base salary. UNAT upheld the first-instance judgment.

The Appeals Tribunal found inter alia that by failing to take protective action “and thus exposing Ms. Civic to harmful working conditions for a considerable amount of time, the Administration failed in its duty of care and compensation shall be awarded to alleviate the harm (…)” (at para. 73)