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2016-UNAT-612, Dawas

UNAT Held or UNDT Pronouncements

UNAT considered the appeal by the UNRWA Commissioner-General. UNAT confirmed the findings and conclusions of the UNRWA DT judgment under appeal about the illegality of the closure of the investigation into the staff member’s complaints. UNAT held that UNRWA DT had thoroughly conducted the judicial review of the challenged administrative decision. UNAT held that UNRWA DT had conducted a legitimate exercise when it drew its conclusions from the investigation report. UNAT held that the irregularities, such as the failure to address the specific harassment complaint, several examples of abuse of power including sending performance evaluation-related emails and attempting to force the staff member to retire for health reasons, could be reasonably characterized as breaches of the Agency’s policies and regulations, meriting a finding of abuse of power and harassment. UNAT held that the requirements of Art. 2.1 of the UNAT Statute were not fulfilled since the impugned decision was not a manifestly unreasonable one due to an error of fact, law or procedure or an excess of jurisdiction, or the failure to exercise it. UNAT agreed with the rescission of the impugned administrative decision without an order for reinstatement since the staff member had been declared unfit to work for health reasons. UNAT dismissed the appeal and affirmed the UNRWA DT judgment.

Decision Contested or Judgment Appealed

The Applicant contested the decision to close the investigation into his complaint of discrimination, abuse of power, and harassment against the Director of UNRWA Operations (DUO/J) on the basis that the reported misconduct was unsubstantiated, and requested, among other things, financial compensation for damages, distress and the consequences of his hospitalization leading to his separation. UNRWA DT found that DUO/J had abused her authority by improperly using her position to influence the Commissioner-General and that her conduct towards the Applicant could be characterized as harassment. UNRWA DT held that the Commissioner-General’s decision not to act on the harassment complaint was unlawful and had to be rescinded. UNRWA DT rejected the request for compensation for material damages and granted the request for compensation for moral damages.

Legal Principle(s)

UNDT is not clothed with jurisdiction to investigate harassment complaints under Article 2 of the UNDT Statute. However, for the purpose of determining if the impugned administrative decisions were improperly motivated, it is within the competence of the UNDT to examine allegations of harassment. This is different from a de novo investigation into a complaint of harassment.

Outcome
Appeal dismissed on merits
Outcome Extra Text

Only financial compensation

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The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.

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Dawas
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