UNDT/2022/088, Dragnea
The Ãå±±½ûµØ and its placement in the Applicant’s personnel file Noting that the decision at issue is a written reprimand imposed to address a staff member’s unsatisfactory conduct following an investigation of an altercation, the Tribunal considers that the decision at issue constitutes an administrative measure under sec. 2.1(d) of ST/AI/2017/1 (Unsatisfactory conduct, investigations and the disciplinary process). The fact that a reprimand is not a disciplinary measure “does not mean that a reprimand does not have legal consequences, which are to the detriment of its addressee, especially when the reprimand is placed and kept in the staff member’s file. The reprimand is, by definition, adverse material†(United Nations Administrative Tribunal Judgment No. 1176, Parra (2004), para. IV). In the present case, the reprimand materially and adversely affects the Applicant’s rights and is of direct legal effect in that the Ãå±±½ûµØ explicitly states that “[t]his reprimand will be placed in [the Applicant’s] personnel file†and as such it may be referred to in the future. Indeed, the Appeals Tribunal in Akyeampong 2012- UNAT-192 clarified that “[a] reprimand is recorded in the staff member’s file to serve as a reminder, should the staff member misconduct herself again. In such an event, the Administration may administer a harsher sanctionâ€. Moreover, the evidence on record shows that based on the Ãå±±½ûµØ on the Applicant’s personnel file, she was placed on a PIP and received a rating of “partially meets performance expectations†for the 2020-2021 performance cycle, and consequently her fixed-term contract was renewed by only four months and twenty-five days as opposed to similarly situated staff members who received extensions of twenty-four months. As such, the Ãå±±½ûµØ and its placement in the Applicant’s personnel file did produce direct legal consequences affecting the Applicant’s terms and conditions of appointment. Accordingly, the decisions to issue the Applicant the Ãå±±½ûµØ and to place it in her file are subject to legal challenge and, thus, the application is receivable in this respect. The decision to place the Applicant on a PIP In relation to the Applicant’s placement on a PIP, the Tribunal is not persuaded by the Applicant’s contention that the PIP constitutes a disguised disciplinary measure. In this respect, the Applicant clearly misinterpreted the nature of the PIP, which is a remedial measure relied upon by the Administration to “proactively assist the staff member in remedying [a performance] shortcoming†under sec. 10.1 of ST/AI/2021/4 (Performance Management and Development System). Also, while it is true that the Administration informed the Applicant of the decision to reprimand her and of the decision to place her on a PIP in the same memorandum, these two decisions are not inseparable from each other. In particular, the evidence on record shows that the PIP sought to address more performance shortcomings than the reprimanded conduct itself. Moreover, the order to place a staff member on a PIP is not an appealable final administrative decision. The PIP is merely a preliminary step instituted to address a staff member’s shortcomings during a performance cycle Therefore, the decision to place the Applicant on a PIP is not an appealable administrative decision.
By application filed on 17 November 2021, the Applicant, a staff member of the United Nations Department for Safety and Security (“UNDSSâ€), contests: a. The issuance to her of a notice of reprimand (“Ãå±±½ûµØâ€); b. The placement of said notice in her file; c. Her placement under a performance improvement plan (“PIPâ€); and d. The outcome of the Management Evaluation Unit’s (“MEUâ€) review of the above decisions.
“[T]he key characteristic of an administrative decision subject to judicial review is that the decision must ‘produce [] direct legal consequences’ affecting a staff member’s terms and conditions of appointment†(see, e.g., Najjar 2021-UNAT-1084, para. 29; Lee 2014-UNAT-481, para. 49). “What constitutes an administrative decision will depend on the nature of the decision, the legal framework under which the decision was made, and the consequences of the decision†(see, e.g., Najjar, para. 29; Andati-Amwayi 2010-UNAT-058, para. 19).