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AAF appealed.

The UNAT agreed with the UNDT that the Secretary-General had not committed any procedural errors which would have render the contested decision unlawful.

The UNAT held that the shortcomings under Section 2.2 of ST/SGB/2019/3 could only be regarded as substantial procedural irregularities (rendering the refusal to implement flexible working arrangements unlawful) if the lack of providing such reasoning had impacted the staff member’s due process rights, namely his or her possibility of challenging the administrative decision before the UNDT.  As the Secretary-General had delivered the requested reasoning, albeit not when issuing the contested decision on 13 May 2019 but in their reply to AAF’s application to the UNDT, and AAF had an opportunity to address and challenge it, the UNDT correctly found that the procedural error was not of such significance that, by itself, it rendered the contested decision unlawful. 

The UNAT found that the UNDT had not committed any errors in holding that the Secretary-General established that the continuation of the RTW plan would result in a disproportionate or undue burden on AAF’s workplace.  Contrary to AAF’s submissions on appeal, it is not necessary for the Administration to “weigh the operational impact of the RTW plan against the reasons for its recommendation or negative consequences of non-implementation”.  It suffices that the Administration can reasonably show that the (continued) implementation of a RTW plan will result in a disproportionate or undue burden on the workplace. 

The UNAT was of the view that the UNDT had not erred in holding that by stopping the implementation of the RTW plan, AAF’s safety and security were not put at risk because AAF did not work from 1 June to 31 July 2019 but was instead placed on a combination of sick leave and annual leave, which was eventually fully restored to her advantage.  The Secretary-General did not violate their “duty of care to provide staff with a safe working environment, as reflected in Staff Regulation 1.2(c)”. 

The UNAT noted that AAF had not been separated from service due to her medical condition; instead, she had resumed her full-time work on 1 August 2019 and was apparently still working for the Organization.  Secondly, should a staff member’s medical condition not improve after substantial periods of sick leave and implementation of a return-to work programme under Section 2.2 ST/SGB/2019/3, the tribunals would not consider a separation from service due to medical incapacity as a breach of the duty of care but rather as a reasonable and lawful option of the Secretary-General. 

The UNAT agreed with the UNDT that the 30 July 2019 decision (to not apply the RTW plan as recommended on 29 July 2019) and the 13 May 2019 decision (to stop implementing the previous RTW plan) were two different administrative decisions due to the different provisions of the two RTW plans, and that management evaluation was required of the 30 July 2019 refusal if AAF wanted to challenge this decision. 

The UNAT held that as there was no unlawful administrative decision, there could be no remedy under Article 9(1) of the UNAT Statute.  AAF cannot claim compensation for the infection suffered in May 2019 because she has not shown that this illness was directly caused by the contested 13 May 2019 decision as required under the consistent jurisprudence of the Appeals Tribunal.

The UNAT dismissed the appeal and affirmed Judgment No. UNDT/2021/094.