2015-UNAT-568, Lebouef et al.
On the Appellants’ motion for contempt and request to strike specific paragraphs from the Respondent’s Answer, UNAT found no basis to grant the relief sought but stated it would deal with the issue in the judgment. On the Appellants’ complaints about the number of witnesses permitted to testify, UNAT held that: insofar as the Appellants’ sought to impugn the UNDT judgment on the basis of the number of witnesses permitted to testify, there was no merit in such an argument and it found no error of procedure such as to affect the decision in the case; and there was no merit in the argument that the absence of more Appellant witnesses before UNDT had a bearing on the ultimate finding on the issue of acquiescence. UNAT held that UNDT’s rejection of the Appellant’s claims regarding that decision was fully consistent with the jurisprudence of UNAT, namely that applications to UNDT are only receivable when a staff member has previously submitted a contested decision for administrative review or management evaluation within the specified deadlines. UNAT held that there was no reason to impugn UNDT’s rejection of the Appellants’ arguments that there were ongoing discussions and the time for filing did not start to run until sometime in 2008. UNAT held that UNDT did not err in law or in fact in deeming the Appellant’s application only receivable with respect to the subsequent application of the policy on overtime in the relevant period immediately prior to the request for administrative review in January 2009. UNAT concurred with the UNDT’s interpretation of Appendix B of the former Staff Rules. UNAT held that the Administration acquiesced to the practice that annual leave, sick leave and compensatory time off (CTO) were routinely counted as hours of work for the purpose of overtime pay within the Department for General Assembly and Conference Management. UNAT rejected the argument advanced by the Respondent that the Administration sought to correct an illegality or put an end to double-dipping by staff. UNAT held that there was no legal or factual error on the part of UNDT when it found the Administration’s interpretation and application of Appendix B to the former Staff Rules to be lawful. On the UNDT’s finding that overtime policies had been applied consistently throughout the Secretariat, UNAT held that the Appellants did not make out a persuasive argument that UNDT erred in law or in fact such that would warrant interference by UNAT. On the alleged errors of fact regarding mandatory consultation, UNAT found no error or flaw such as would serve to undermine UNDT’s overall conclusion on the issue of consultation. To some extent, UNAT accepted the Appellants’ argument that UNDT erred in fact in holding that the Appellants had acquiesced to the change from December 2004, however, UNAT noted that there was no evidence adduced before UNDT that after October 2006 any further consultations or negotiations were entered into. UNAT held that it could not reasonably be concluded that UNDT should have found that there was an extant legitimate expectation on the part of the Appellants as of January 2009. UNAT held that, while it was of the view that UNDT should not have concluded that the Appellant’s acquiesced to the changes from January 2005, it remained the case that they acquiesced to the Administration’s continued inclusion post-October 2006 of CTO in the change effected on 1 January 2005, without demur, until the request for administrative review of 16 January 2009. UNAT held that, in all the circumstances, it was not persuaded that the UNDT’s judgment should be impugned for having failed to acknowledge that the Appellants had a legitimate expectation to the continuance of the pre-January 2005 practice within their Department. UNAT held that the UNDT did not err in law, or in fact resulting in a manifestly unreasonable decision, or in procedure in arriving at its decision on the Appellants’ claims. UNAT dismissed the appeal and affirmed the UNDT judgment.
The Applicants contested a change to the interpretation and application of the Organisation’s rules on compensation for overtime work. UNDT dismissed the application and declined to order costs.
UNDT enjoys considerable discretion in case management with which UNAT is slow to interfere, absent any procedural error affecting the ultimate outcome of the case before UNDT. UNDT is prohibited from considering a claim that is filed three years or more after the notification of the contested decision. UNDT has no jurisdiction to suspend or waive the deadlines for requests for management evaluation and administrative review.