UNDT/2013/112, Eissa
Pleadings - A defence to a claim must say which of the allegations in the particulars of claim are admitted, which are denied and which allegations the defendant is unable to admit or deny, but requires the claimant to prove. Every allegation made in a claim should be dealt with in the defence. Where an allegation is denied, this normally implies that the defendant intends to put up a positive case to the contrary. Where the defendant denies an allegation, he must state his reasons for doing so; and if he intends to put forward a different version of events from that given by the claimant, he must state his own version. Ultra vires - There is no evidence that the members of the MLT had the expertise to undertake such a specialised task as the classification or profiling of posts. In the absence of clear and convincing evidence showing that the proper legal role of the UNMISS MLT went beyond overseeing the implementation of the mission’s activities, the Tribunal is not satisfied that the so called review and re-profiling of posts undertaken by the MLT amounted to anything more than an arbitrary and unlawful exercise of authority. Improper Motives - The Tribunal, therefore, based on pleadings, ample oral and documentary evidence and the fact that these claims are unchallenged, finds that there was animus against the Applicant by the UNMIS Chief of Staff as a result of being identified as part of a group that was opposed to a relationship between UNMIS and FH in which FH would have editorial control of UNMIS Radio Miraya. Delegated Authority - The termination decision was taken without the requisite delegated authority notwithstanding the fact that all posts within UNMIS were necessarily to be abolished as a result of Security Council Resolution 1997 (2011). Introduction of new evidence by way of closing submissions - Article 18.1 of the Rules of Procedure empowers the Tribunal to determine the admissibility of any evidence. It is also trite law that a party cannot introduce any new evidence by way of closing submissions as the said submissions must be based on fact and law.
On 7 October 2011, the Applicant filed an Application contesting the termination of her fixed-term appointment with the United Nations Mission in Sudan (“UNMIS”) upon the closure of UNMIS on the grounds that, inter alia, the decision was a breach of the process by which staff members of UNMIS were transferred to the United Nations Mission in South Sudan (“UNMISS”).
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The Tribunal orders rescission of the administrative decision to separate the Applicant from service and orders the Respondent to reinstate the Applicant. The Applicant is entitled to compensation for the substantive and procedural irregularities occasioned him by the failure by the Administration to follow its own guidelines, rules and procedures.