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Case No. UNDT/GVA/2015/129

Contingency of the Applicant’s FTA: return of Mr. C. to post No. 501057

Under sec. 6.7 of ST/AI/2010/3, in cases of secondment, a lien against a specific post shall only be granted for up to two years, after which it shall be surrendered. No discretion is granted to the Administration for extending the lien beyond the two years. Quite distinctly, para. 7 of ST/AI/404 allows the Administration to extend the mission assignment beyond the two years period, and continue blocking a specific post in the parent department, provided there is a specific written agreement to...

No legal implementation of an expired decision: The Tribunal underlines that, after its expiration a decision cannot any longer produce legal effects and therefore cannot be implemented and / or extended and that any such action constitutes itself a breach of procedural fairness.

Filling of a vacancy by a lateral transfer: The choice of filling a post by lateral move—without going through a fullfledged competitive selection process—is provided for by sec. 2.5 of ST/AI/2010/3 and does not per se violate any of the superior rules prescribing the goal of ensuring the highest standards of efficiency, competency and integrity. Nevertheless, as any discretionary decision, such course of action must not be arbitrary, capricious, tainted by improper motives, based on erroneous or irrelevant considerations, procedurally flawed or resulting in a manifestly unreasonable outcome...

In the instant case, the Respondent showed that three available P-5 posts were identified as suitable to the Applicant’s qualifications and experience and that he was invited to apply for them for consideration. If the Applicant had put a foot in the door by applying to any of them, then the next stage would have been for the Tribunal to examine whether UNFPA selected a non-permanent staff member above the qualified Applicant thus denying the Applicant of the protections afforded him by staff rules 9.6(e) and 13(d). Good faith efforts on both sides means that both parties cooperate to identify...

The Tribunal concluded that the application was generally not receivable because the Applicant was specifically challenging MEU’s negative responses to her various requests for management evalution. This conclusion nothwithstanding, the Tribunal reviewed each of the Applicant’s claims and concluded that they were not receivable because she: failed to identify an administrative decision within the meaning of art. 2.1(a) of the UNDT Statute in relation to her claim that there was a “wall of silence” was estopped from re-litigating her claim in relation to the delay in releasing the results of...

The best interests of UNHCR were clearly not served by the removal of the Applicant. It is unfortUNATe that some members of the UNHCR senior management sought to hide behind the veil of acting in the Organization’s best interests to act in their own self-interest. The Tribunal therefore found on that score that the Respondent’s explanation were a mere afterthought which was only spun to defend an action that was clearly lacking in due process and constituted an unfair and highhanded removal of the Applicant and abuse of official discretion. The Tribunal was not in any doubt that the removal of...

The Respondent withdrew from the impugned decision to change the Applicant’s functional title from Team Assistant to Language Assistant. Accordingly, the claim was moot at the time of the filing of the application and therefore not receivable. With respect to the decision to remove the Applicant’s responsibility for the Litani magazine the Tribunal found that this claim was not the subject of management evaluation and therefore not receivability. With respect to the Applicant’s reassignment, the Tribunal noted that the impugned decision entailed a change in the Applicant’s place, her...

Temporary reassignment: The characteristic of a temporary reassignment is its limited duration. From the outset, it is clear that it has an expiration date and that, unless renewed by a subsequent discretionary decision, it will come to an end naturally on the date specified for this purpose. The natural outcome of a temporary assignment is the staff member’s return to his/her original duties. Accordingly, a staff member on temporary reassignment has no entitlement or legal expectancy to have such reassignment extended. The decision not to extend a temporary reassignment is within the...

The Respondent submitted that the case was not receivable ratione materiae as it did not concern an appealable decision, but the Tribunal rejected this claim and found the case receiveable.

While staff regulation 1.2(c) provides that in exercising his authority to assign staff members to activities or offices of the United Nations, the Secretary-General shall seek to ensure that “all necessary safety and security arrangements are made for staff carrying out the responsibilities entrusted to them,” such arrangements are not, in all circumstances, merely limited to physical safety and security. Reassigning a staff member from a core P-5 post established by the General Assembly to a General Temporary Assistance (GTA)-funded P-5 post established by ESCWA did not satisfy the test of a...