UNDT/2010/130, Applicant
The respondent submitted documentary evidence showing that the applicant’s post had been created, and the applicant recruited, specifically for the purpose of prosecuting the above-mentioned top Serbian leader. Accordingly, the Tribunal concluded that the decision to abolish the applicant’s post and to terminate his fixed-term appointment had been taken in view of the necessities of service and constituted a proper exercise of the respondent’s discretionary authority. Since it was established that the necessities of service justified the termination of the applicant’s appointment, it was not necessary for the Tribunal to examine the applicant’s allegations that the decision had been improperly influenced by the animosity between the applicant and his supervisor. The termination of the applicant’s appointment was, however, unlawful in view of the applicant’s sick leave status. The Secretary-General had awarded the applicant eight months’ net base salary for this breach of his rights. In view of the circumstances of the case, the Tribunal considered that an adequate compensation for the moral and material prejudice suffered by the applicant was the staff member’s maximum entitlement to sick leave at the date of his termination, i.e., 11 months’ net base salary, minus the eight months already awarded by the Secretary-General. The Tribunal further concluded that the remark contained in the ASG/OHRM’s letter was in fact a reprimand within the meaning of former staff rule 110.3 (b) (i). While it was within the discretionary authority of the respondent to issue a reprimand to the applicant, in this case such decision was illegal because it was tainted by a procedural irregularity and an error of fact. First, the applicant had not been informed of his right to be represented by counsel during the investigation, in violation of ST/AI/379 (which differs in this respect from ST/AI/371 and former staff rule 110.4). Second, the content of the reprimand issued to the applicant was not supported by the facts as established by the investigation panel. The Tribunal rejected the applicant’s request for the payment of his legal costs, on the basis of article 10.6 of the UNDT Statute and Judgment No. 237, Powell (1979), of the former UNAT. Outcome: The Tribunal awarded three months’ net base salary to the applicant in compensation for the prejudice resulting from the unlawful termination and another three months for the unlawful reprimand. The Tribunal further rescinded the reprimand and ordered the respondent to remove it from the Administration’s files.
In 2001, the applicant was hired by ICTY at the D-1 level to prosecute a top Serbian leader. In January 2006, a junior staff member filed a complaint for sexual harassment against the applicant. In March 2006, the top Serbian leader whom the applicant had been hired to prosecute died in detention, bringing the proceedings against him to an end. Shortly thereafter, the Administration notified the applicant of the decision to abolish his post and to terminate his fixed-term appointment. However, pending the results of the investigation against him, the applicant’s appointment was not terminated. In April 2006, the investigation panel issued its report, which cleared the applicant of all allegations of misconduct. The panel noted, however, that should the applicant continue to be employed by the UN, he should be cautioned as to the responsibilities of a senior manager in either having or seeking to have other than a working relationship with subordinates. Shortly thereafter, the ASG/OHRM informed the applicant of her decision not to pursue the matter as a disciplinary case, but concluded her letter with a remark regarding the inappropriate behaviour and poor judgment displayed by the applicant. Effective 31 July 2006, the applicant’s appointment was terminated although he was on certified sick leave and had submitted a doctor’s report indicating that his sick leave should be extended.
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