2023-UNAT-1342, AAL
The UNAT dismissed the appeal. The UNAT found that AAL was given notice of the need for her to return to the duty station, as well as sufficient opportunity to apply for sick leave. However, she did not request such sick leave, nor did she return to work, leaving no option for the Administration other than to place her on SLWOP. She also failed to provide evidence that there were “compelling personal circumstances” so as to engender a decision to allow her to continue to telecommute from outside her official duty station. The UNAT further found that the UNDT did not err in finding that AAL was not medically required to telecommute, nor that AAL did not have a medical exemption. Furthermore, in light of the applicable legal framework, the denial of the telecommuting request was appropriately accompanied by the basis for its non-approval in writing, which included the care to ensure that telecommuting did not result in additional demands on other colleagues who needed rest and recuperation, because they had not had the opportunity to leave the duty station for a considerable period of time, as prescribed by Section 3.5 of ST/SGB/2019/3. The UNAT further dismissed AAL’s claim that the fact that the SRO rejected the recommendation for reasonable accommodation, despite it having been previously granted by both UNHQ DMOSH and the Mission, was proof of improper and extraneous discrimination against her. The medical unit did not have competence to grant such permission, which was incumbent upon AAL’s supervisor. Moreover, the reasons given by AAL’s manager were reasonable, as they related to the operational needs of the duty station and to the type of work performed by AAL. There was therefore no error in the UNDT’s finding that there was no abuse of discretion in the continued denial of telecommuting requests during which AAL was placed on SLWP (while awaiting her visa ) and subsequently on SLWOP (after the visa had been delivered). The UNAT further concluded that the UNDT did not err by concluding that AAL was not subject to discrimination.
Before the UNDT, AAL, a former P-3 Child Protection Officer who had left her hardship mission for medical reasons challenged the denial of her sick leave entitlement, her placement on SLWOP, the Administration's abuse of discretion in placing her on SLWP and SLWOP “instead of providing reasonable accommodation due to her medical vulnerability and enabling her to work” claiming that the decisions taken by her manager and the Mission were also discriminatory in nature. The UNDT dismissed the application. The UNDT found the application not receivable in parts and moot in other parts. As to AAL’s contention that the Administration had abused its discretion in placing her on SLWP and subsequently on SLWOP “instead of providing reasonable accommodation due to her medical vulnerability and enabling her to work”, the UNDT found that AAL had been placed on SLWP while she was waiting for her visa to be able to travel back to her duty station, and on SLWOP after getting her visa. The UNDT found no merit in AAL’s argument that she had been deprived of her right to work, as she was requested to work in her duty station and not medically required to telecommute. Finally, the UNDT dismissed AAL’s claim that the decisions taken by her manager and the Mission were also discriminatory in nature. The UNDT noted that a global rotation policy had been implemented universally in the section, resulting in the return of different staff members to the duty station to replace and relieve others, as well as to ensure crucial presence on the ground. AAL’s role as a Child Protection Officer needed presence on the ground and that telecommuting was not appropriate for the functions of her role. The record clearly showed that the reason was true and that AAL was afforded the same discretion as other members of her team. The UNDT found that none of the decisions challenged were unlawful, and as such, AAL was not entitled to any of the remedies she requested. AAL appealed.
While there is no right to flexible working arrangements, they should be viewed favourably “where exigences of service allow”. Staff members should seek written approval from their managers to avail themselves of flexible working arrangements.