UNDT/2020/056, Mwetaminwa
The Tribunal found the application receivable because the Applicant was not relitigating the same claim that was dismissed by Judgment No. UNDT/2019/122. The Tribunal concluded that Judgment No. UNDT/2019/122 related solely to the Applicant’s challenge against MONUSCO’s decision to abolish his post by way of a “dry cut” and not to extend his fixed-term appointment (FTA) and that this judgment made no pronouncements, whether procedural or substantive on the Applicant’s claim for a termination indemnity. In the absence of an explicit decision/evidence corroborating the Applicant’s assertion that he had been placed on SLWFP, the Tribunal accepted the Respondent’s submission that the Applicant had not been placed on SLWFP between 29 May and 30 June 2019. Termination indemnity serves to provide sufficient means of survival for the staff member to identify a regular placement in the labour market, and thus is computed dependent on the length of service. It serves to compensate for the premature loss of employment and also discourages inconsiderate use of termination by the Respondent. Termination indemnity operates on the premise that the protected interest is in preserving the contract and not in generating more profit for the employee. The applicable legal framework for abolishment of post does not confer upon a staff member a right to have termination as the modality of separation. The Applicant’s case did not qualify as a “disguised termination” given that: his appointment expired without further extension he retained his status as a staff member until the expiration of the appointment as per its original term he received his salary and accrued entitlements (leave, pension, seniority, etc.) accordingly and the period during which the Applicant did not have his work station was relatively short compared with the duration of the appointment. Since there was no unilateral termination of the Applicant’s appointment, there was no basis for indemnification as per staff regulation 9.3.
The Applicant contested his placement “on Special Leave with Full Pay (SLWFP) until the expiration of his fixed-term appointment when his contract was de facto terminated thereby denying him of termination indemnities”.
A fixed-term appointment expires automatically, and without prior notice, on the expiration date specified in a staff member’s letter of appointment. Separation due to resignation, abandonment of post, expiration of appointment, retirement or death is not regarded as a termination under the Staff Rules. The Secretary-General may terminate a staff member’s appointment under a limited set of circumstances including, “if the necessities of service require abolition of the post or reduction of the staff” (staff regulation 9.3(a)(i)). Should the Secretary-General elect to terminate an appointment, the staff member is entitled to notice and “such indemnity payment as may be applicable under the Staff Regulations and Rules” (staff regulation 9.3(c)).