Staff rule 4.7(a) and (b) has a limited and express area of application as established in staff rule 4.7(c) and that, per a contrario, a person who is the father, mother, son, daughter, brother or sister of a staff member and who applied to a post, was considered and was selected through a competitive selection process as being the best candidate, can be assigned to any post, including in the same department/unit which is not superior or subordinate in the line of authority to the staff member to whom s/he is related. Staff rule 4.7(c), by establishing that the posts which are superior or...
Article 10.5(a)
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The failure to re-interview the subject of an investigation to confront him/her with additional gathered evidence constitutes a breach of his/her due process rights: the contested disciplinary decision is unlawful since it was taken based on the evidence and recommendations of the SIU/UNAMID investigation reports issued in January 2013 and December 2013, even though the SIU/UNAMID continued the investigation and gathered additional evidence from two witnesses in January 2015 and April 2015. The new evidence was never brought to the attention of the Applicant or of the decision-maker before...
Considering that in the circumstances of the case it is in the interest of all parties that the present matter be disposed of as soon as possible, the Tribunal deemed appropriate to rule on the application for revision by summary judgment, in accordance with art. 9 of its Rules of Procedure, without waiting for the Applicant’s reply.; An application for revision is not possible when the judgment in question is subject to appeal; the appropriate avenue for a party to adduce new facts during this period is through appellate proceedings.; Since the judgment was not executable, the UNDT found not...
The Tribunal is of the view that in light of the oral evidence presented to the factfinding panel by the FRO and SRO, instead of them following the recommendations of the second rebuttal panel to initiate and provide real support to the Applicant at every stage of the process, they continued their negative behavior towards the Applicant and they did not temporarily rotate/assign him to another position in a different Unit for the following six months (up to one year starting from 19 March 2014), and to allow for the continuation of his third probationary year. The Tribunal concludes that the...
Background for the examination of the issues in this case
The Tribunal found that the wayin which the Office of Audit and Investigation Services (“OAIS”) conducted its investigation clearly led to great unfairness to the Applicant given the circumstances of this case.
Financial loss to UNFPA
Since a pivotal part of the scope of the investigation was to establish financial loss to the Organization and or financial benefit to the Applicant as a result of the UNFPA leases, it was surprising for the Tribunal to note that there was no certain finding of the actual financial loss that UNFPA...
As part of a closing statement, the Applicant submitted new written evidence. The Tribunal rejected all new evidence as this evidence could have been submitted before the closing of the proceedings and no exceptional circumstances justified the late submission. The Applicant was not fully informed of all the evidence upon which the Administration would rely to impose the disciplinary sanction. However, he was nevertheless informed of the allegations against him and therefore the Tribunal proceeded to a de novo review of the facts and a judicial review of the remaining aspects of the case. It...
The Tribunal concluded that the Applicant had attempted to physically remove M, the staff member of a WFP contractor, from WFP premises and that in so doing, he had been imprudent and reckless since he could have sought the assistance of security personnel. The Tribunal found, however, that the allegations that the Applicant had initiated the fight with M and continued to fight severely and inflict serious injuries on him, had not been established by clear and convincing evidence. The Tribunal further found that in imposing the disciplinary sanction on the Applicant, WFP had unlawfully...
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...
Receivability What is the contested decision? The Tribunal found that the Applicant did not contest the decision to grant her a permanent appointment, as argued by the Respondent. Rather, the Applicant contested the decision not to “provide her with an effective remedy” after having been granted a permanent appointment with retroactive effect to 30 June 2009, namely not being given employment against the permanent appointment or, in the alternative, not being granted compensation equivalent to the termination indemnity. Does the principle of “res judicata” apply? The Applicant requests to be...
The Tribunal found that the contested decision was unlawful based on the Respondent’s admission that “although there were legitimate reasons to abolish the Applicant’s post, the decision to do so, which led to the non-extension of her appointment […] was based, in part, on flawed considerations”. Therefore, the only legal issue that remained for adjudication before the Tribunal was that of remedies. Remedies The Tribunal noted that the Applicant worked as an Operations Manager, at the NO-C level, in the UNICEF Morocco Country Office. She worked on a fixed-term appointment since February 2010...