UNDT/2020/158, Matar
The Tribunal found that the post encumbered by the Applicant was abolished due to a restructuring exercise in UNAKRT linked to budgetary restrictions and the implementation of Umoja, which rendered the Applicant’s position redundant. The Tribunal noted that the Organization is not bound to initiate a formal consultation process with a staff member before deciding to abolish his/her post. In any event, consultation is not equivalent to negotiation, and it is not necessary for the Administration to secure consent or agreement of the consulted party. The Tribunal found that the Organization did not only keep the Applicant informed of the proposal to abolish his post but it also paid him three months’ compensation in lieu of the notice period, which he accepted as part of his separation entitlements. Therefore, the Tribunal noted that it is not legally nor ethically correct to accept said payment and, at the same time, to argue in court that he was not given sufficient notice period as this amounts to venire contra factum proprium. The Tribunal recalled that in cases of abolition of posts or reduction of staff, there is a shared responsibility between the Organization, who must act fairly and transparently, and the affected staff member who should act proactively by timely and completely applying for vacant positions. The Tribunal noted that the Organization’s obligations to retain a staff member whose post is abolished only extends to vacant suitable posts. The Tribunal concluded that the Organization had showed it made good faith efforts to find an alternative position for the Applicant but due to the limitation of his contract to service with UNAKRT and UNAKRT’s downsizing exercise, it was not possible to retain him on service.
The decision to terminate the Applicant’s permanent appointment and subsequently to separate him from service.
Venire contra factum proprium.