UNDT/2020/093, Dieng
The Tribunal noted that the allegations of poor behaviour and the fact that those behaviours undermined the Applicant’s capacity to discharge the responsibilities assigned to him in an effective manner were not included in his performance evaluations. The fact that the allegations later became the subject of the email to the USGs of the Department of Peacekeeping Operations and the Department of Field Service and formed the basis for the decision to reassign the Applicant to another office showed that there was no transparency on the part of the Respondent in the matter. The Tribunal also noted the egregious and damning nature of the allegations in issue. Their nature was such as would put into question the Applicant’s credentials as an international civil service servant and yet even when the attempt to investigate them failed, nothing was done to bring them to his attention and to meaningfully remedy the situation in accordance with section 10.1 of ST/AI/2010/5. The mere reassignment of the Applicant to another office under circumstances of undisclosed, un-investigated and unresolved egregious and damning allegations such as those could only be ruled to have been arbitrary, and a violation of the Applicant’s due process rights since he was denied an opportunity to rebut them and clear his record. The Respondent’s argument, based on the general authority of Heads of mission to reassign staff members within the mission was unsustainable. The reassignment in the case was done in the context of a number of contentious issues including a failed investigation. It was therefore wrong for the Respondent to have acted in a business-asusual manner on the basis of general authority to reassign the Applicant to another office. The Tribunal agreed with the Applicant that the decision to reassign him was indeed geared at evading an investigation into alleged misconduct and that it was a veiled disciplinary measure. With respect to the Applicant’s request for compensation for economic loss, the Tribunal agreed with the Respondent that as the Applicant was reassigned within the Mission at the same P-5 grade and level, he suffered no economic harm as a result of the contested decision. With respect to the Applicant’s request for compensation for stress and anxiety caused by the contested decision, the Applicant submitted a medical report dated 26 May 2018. Given the proximity of the Applicant’s visit to the Physician to the date of the contested decision and the events leading up to the contested decision, the Tribunal found a causal link between the Applicant’s medical condition and the contested decision. The stress and anxiety caused to the Applicant by the contested decision merited a compensatory award. The stress and anxiety occasioned to the Applicant by the contested decision resulted in the Physician recommending 16 days of home rest and absence from work. The Tribunal awarded the Applicant one month’s net base salary as compensation for the stress and anxiety caused by the contested decision.
The Applicant was contesting the decision to to remove him from his position as Senior Child Protection Advisor and to reassign him as a Senior Political Affairs Officer within UNAMID.
The reassignment of staff members’ functions comes within the broad discretion of the Organization to use its resources and personnel as it deems appropriate. The exercise of discretion to reassign a staff member is not unfettered. The propriety of exercise of discretion is to be assessed along parameters of arbitrariness, bias, nondiscrimination and non-violation of rights of the staff member. The reassignment of a member of staff must be reasonable in the particular circumstances of each case and should not cause economic prejudice to the staff member. When a performance shortcoming is identified during the performance cycle, “the first reporting officer, in consultation with the second reporting officer, should proactively assist the staff member to remedy the shortcoming(s). The remedial measures may include transfer to more suitable functions.
The Tribunal found that the Applicant’s reassignment was unlawful and awarded him one month’s net base salary at the grade he encumbered at the time of the contested decision as compensation for stress and anxiety. All other pleas were rejected.