2021-UNAT-1186, Shareef Muzyed
UNAT considered an appeal by Mr. Mezyed. As a preliminary matter, UNAT denied Mr. Mezyed’s request for an oral hearing. Turning to the merits of the appeal, UNAT found that the UNRWA DT had applied correctly the first four conditions in Area Staff Rule 109.4 precedent to possible severance from service for abandonment of post. As to the fifth condition, Mr. Mezyed’s failure to submit an acceptable written explanation for his failure to report, UNAT found that the Agency had failed to properly address the grounds advanced by Mr. Mezyed for his non-return, and as such, the UNRWA DT could not have been able to assess at least some considerations, including whether the Agency took into account relevant and ignored irrelevant factors, the rationality of the decision the Agency took and the proportionality of the outcome to the Appellant. UNAT held that UNRWA was required to, at least minimally, address the reasons given by Mr. Mezyed, at the time the decision was made and announced; and that had UNRWA done so and advised the Appellant accordingly, he might have reconsidered his position and returned within the deadline date imposed. But the erroneous (in one case) and inadequate reasoning proffered by the Agency precluded this outcome from occurring. UNAT concluded that the Agency's failure to fulfill its obligations to the Appellant rendered unlawful his separation from service for abandonment of post and consequential loss of his pension entitlements. UNAT granted the appeal and vacated Judgment No. UNRWA/DT/2020/055.
Before the UNRWA DT, Mr. Mezyed challenged the decision to terminate his employment because he deliberately abandoned his post and elected to remain studying abroad, after he had been warned of the consequences of not returning to his post as directed. In Judgment No. UNRWA/DT/2020/055, the UNRWA DT found that all five cumulative conditions in Area Staff Rule 109.4 for separation from service by reason of abandonment of post were met: the Appellant voluntarily absented himself from duty; the absence was for more than three consecutive days; the absence was unauthorized; the Appellant had been informed by letter of the consequences of failing to report for duty; and he had failed to submit an acceptable written explanation for his failure to report. The UNRWA DT held that the Agency’s decision conformed with the regulatory framework and dismissed the application.
An appellant cannot raise new arguments for the first time on appeal. If an employee provides a written explanation for his or her non-return to his or her post, then no deeming of an abandonment of employment can occur. If the written explanation for absence is accepted, there will be no sanction for that non-return. If the staff member provides a written explanation that is unacceptable, then the staff member may have his/her employment terminated for being absent without just cause. In these circumstances, the staff member is not deemed to have abandoned his/her post. The deeming provision is aimed at resolving the problem of the missing and/or unresponsive employee. The just cause of the staff member’s absence must be determined and if found lacking he/she may be dismissed for being absent without just cause. The staff member is then dismissed on merit rather than being deemed to have abandoned the post and thereby dismissed, the latter being an automatic process. Only employees who do not return on request or who fail to provide an explanation, can be deemed to be dismissed. Those who provide an unacceptable explanation are dismissed for being absent without an acceptable explanation.The requirement of the staff member to provide an explanation for the non-return cannot be interpreted to mean that simply by sending a letter of explanation irrespective of that explanation’s merits, either that separation can be avoided, or that abandonment is deemed to have taken place and separation follows. The Agency must do several things in response to such an explanation. It will consider the explanation provided, decide upon its acceptability and advise the staff member either that the explanation is acceptable, and separation will not follow, or that the explanation is unacceptable and that the staff member may or will be separated from service for abandonment of his or her post. The foregoing requires, necessarily, that in cases where an explanation is provided, the Agency must consider the acceptability to it of that explanation and its decision, if it rejects the explanation, must be made on rational and transparent grounds. It is not the function of the Tribunals to substitute their decisions for that of the Agency, including as to whether the Appellant had provided acceptable reasons for his non-return. But the Appellant isentitled to have the UNRWA DT review the relevance or irrelevance of the factors taken into account, the lawfulness, the rationality, the procedural correctness and the proportionality of the Commissioner-General’s decision. A review of the rationality of a decision requires that there be adequate reasons and, in turn, a review of the adequacy of these of reasons includes a review of the record and the outcome. Where there is a statutory right of appeal, the circumstances require adequate reasons which should be addressed, at least minimally, at the time the decision is made and announced.
Judgment No. UNRWA/DT/2020/055 is set aside as erroneous in law. The Respondent’s decision to separate the Appellant from service is rescinded. If the Respondent elects not to reinstate the Appellant without loss of remuneration or benefits, the Respondent is directed to pay to the Appellant compensation equivalent to three months’ remuneration for the period 28 August 2019 to 27 November 2019 and compensation for his loss of pension entitlements calculated by reference to the same period.