2021-UNAT-1135, Mohammad Tofazzel Hossain
As a preliminary matter, UNAT declined Mr. Hossain’s request for an in-person hearing and held that Mr. Hossain did not explain, at least sufficiently, why his appeal should be dealt with other than on papers filed. UNAT held that UNDT erred in law by rejecting Mr. Hossain’s proceedings other than on their merits and for threshold jurisdictional reasons that it was empowered to examine and assist to establish. UNAT held that the UNDT, while perhaps disposing of the case in an expeditious way, did not do so fairly, or certainly justly, as between the parties. UNAT admitted on appeal the documentary evidence establishing Mr. Hossain’s applications for alternative positions, and the rejections of them in the interests of justice and for the efficient and expeditious resolution of the proceedings on their merits. UNAT held that Mr. Hossain’s performance assessment, affirmed by the Rebuttal Panel, as “partially satisfactory” was an administrative decision and was, by its very nature, adverse to him, and his proceeding was therefore receivable by UNDT. UNAT allowed the appeal, set aside the UNDT Judgment and remanded the case, as receivable, to the UNDT for hearing.
Mr. Hossain contested the decision of the UNDP Rebuttal Panel to uphold his 2016 performance assessment rating of “partially satisfactory”. In its Judgment on Receivability No. UNDT/2020/127, UNDT dismissed the application as not receivable on the grounds that the rating did not adversely affect him and thus did not have any direct legal consequence on his conditions of service that would make his application receivable by UNDT as required under Article 2(1) of the UNDT Statute.
While the UNDT has a very broad discretion, at least in non-disciplinary cases, to decide whether to conduct a hearing at which evidence is called orally or at which submissions can be made by parties on documents produced to the Tribunal, this is not an unlimited discretion.
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