2016-UNAT-650

2016-UNAT-650, Nielsen

UNAT Held or UNDT Pronouncements

UNAT rejected the request for an oral hearing, finding that it was not necessary or would assist in the expeditious and fair disposal of the case. With regards to the motion to extend the Appellant’s rights as a staff member, UNAT held that there were no exceptional circumstances that would warrant the granting of the motion and the motion was essentially an attempt to supplement arguments already made in the appeal submissions. With regards to the motion to have UNAT remove immunity from certain staff members should her appeal fail, UNAT held that the motion was entirely misconceived, as such a request was entirely outside of UNAT mandate. UNAT dismissed the appeal against UNDT order No. 133 (GVA/2015), finding that the Appellant had failed to present compelling grounds that UNDT had exceeded its jurisdiction in restricting its judicial review to a paper-only assessment and not embarking on an oral hearing. Regarding the appeal of judgment No. UNDT/2015/063, UNAT agreed with UNDT that the complaint against Mrs V was not receivable ratione materiae since no request for management evaluation had been made on this issue. Regarding the complaints against Mrs W., Mrs X., Mrs Y., and Mr Z., UNAT held that UNDT had failed to refer to the “Closure Note”, which apparently recorded the investigation and conclusions reached by OAIS during its preliminary review about the complaints against her four work colleagues. UNAT held that there was no indication on the face of the judgment that the written record of OAIS’ preliminary investigation and conclusions had been considered by UNDT. UNAT was not satisfied that the conclusions reached by UNDT had a proper legal basis in the absence of the aforesaid documentary record. UNAT rejected to remove the anonymity which the UNDT saw fit to give the staff members. UNAT further held that the appeal raised a myriad of other matters which did not have any bearing on UNDT judgment, No. UNDT/2015/063. UNAT upheld the appeal in part, vacated the UNDT judgment was insofar as it rejected the application relating to Mrs W., Mrs X., Mrs Y., and Mr Z., and remanded the case to UNDT for reconsideration. UNAT affirmed the remainder of the judgment.

Decision Contested or Judgment Appealed

The Applicant contested UNFPA’s inaction on her complaints of misconduct against Mrs V., Mrs W., Mrs X., Mrs Y. and Mr Z. By way of order No. 133 (GVA/2015), UNDT informed the parties that the case would be decided on papers, without further hearings or submissions. UNDT found that the application against Mrs V was not receivable since no management evaluation had been requested. Regarding the merits of the Office of Internal Oversight Services (OAIS) decision vis-à-vis Mrs W., Mrs X., Mrs Y. and Mr Z., UNDT noted that the Applicant’s complaint of 5 August 2014 against Mrs W. and her complaint of 22 August 2014 against Mrs X., Mrs Y. and Mr Z. were submitted to OAIS more than 11 months after she had been placed on Special Leave with Full Pay (SLWFP), and almost seven months after she had separated from UNFPA. Consequently, UNDT found that her complaints to OAIS were filed more than six months after “the date of the ‘last incident of [h]arassment” of which she complained, and thus did not respect the time limit set forth in section 9.3.1 of UNFPA’s Policy on Harassment, Sexual Harassment and Abuse of Authority (2013 UNFPA Policy). UNDT concluded that the Applicant’s complaints were not receivable by OAIS, such that OAIS’ refusal to investigate these complaints did not breach any of the Applicant’s rights. Accordingly, the application was dismissed. The Applicant filed an appeal against the UNDT judgment and order No. 133 (GVA/2015). The Applicant later filed a motion to request UNAT to extend her rights as a staff member or to admit that they were extended by the Executive Director, UNFPA. The Applicant further filed a motion requesting UNAT, should it reject her case, to “at least remove the immunity from the involved staff members”, so that she may bring her discrimination and harassment complaints against the concerned staff members in the Danish courts.

Legal Principle(s)

UNAT has consistently afforded UNDT wide discretion in matters of case management and will not lightly interfere in such matters.

Outcome

Appeal granted in part

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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.

Full Judgment

Applicants/ Appellants

Nielsen

Entity

UNFPA

Case Number(s)

2015-738

Tribunal

UNAT

Registry Location :

New York