2014-罌厭弝ⅰAT-417

罌厭弝ⅰAT Held or 罌厭弝ⅰDT Pronouncements

罌厭弝ⅰAT considered an appeal by the Secretary-General. 罌厭弝ⅰAT held that no reasonable or objective analysis of Mr Luvai＊s submissions to management, prior to his application to 罌厭弝ⅰDT, regarding his non-selection for the posts could lead to a conclusion that the revocation of his firearm licence was sufficiently linked to the non-selection decisions such as to deem the matter as receivable by 罌厭弝ⅰDT. 罌厭弝ⅰAT held that 罌厭弝ⅰDT had erred in fact and law in deciding otherwise and that, in purporting to adjudicate on the revocation of Mr Luvai＊s firearm licence, 罌厭弝ⅰDT exceeded its competence. 罌厭弝ⅰAT held that 罌厭弝ⅰDT did not have statutory authority to receive the issue of the firearm permit revocation, it similarly lacked jurisdiction to make any determination on its restoration. 罌厭弝ⅰAT held that 罌厭弝ⅰDT erred manifestly in concluding that Mr Luvai＊s non-selection was unlawful and that Mr Luvai was unfairly treated at the interview stage, in circumstances where the interview panel recommended him as one of eleven candidates to be considered for selection notwithstanding that he had not passed a 罌厭弝ⅰ firearms qualification course. 罌厭弝ⅰAT held that 罌厭弝ⅰDT erred in concluding that the decision to suspend Mr Luvai＊s Lotus Notes e-mail account was unlawful. 罌厭弝ⅰAT held that the staff might initiate in the future a request to his employer for the restoration of his e-mail access and, depending on the management response thereto, it remained open to him to request management evaluation of the response and indeed to challenge any negative decision by application to the 罌厭弝ⅰDT. 罌厭弝ⅰAT held that 罌厭弝ⅰDT＊s assessment and conclusions regarding the staff member＊s harassment complaints went far beyond the permitted judicial review of such complaints as laid down in the 罌厭弝ⅰDT Statute and clarified in the Messinger jurisprudence (judgment No. 2011-罌厭弝ⅰAT-123). 罌厭弝ⅰAT rejected the Secretary-General＊s request for confidentiality and redaction regarding the naming the Chief of Security, Deputy Chief of Security, and the Human Resources Officer. 罌厭弝ⅰAT upheld the appeal and vacated the 罌厭弝ⅰDT judgment.

Decision Contested or Judgment/Order Appealed

罌厭弝ⅰDT judgment: The Applicant contested the decisions to revoke his license to bear an official firearm, to suspend his access to his Lotus Notes and not to select him for the post of Security Lieutenant. In judgment No. 罌厭弝ⅰDT/2013/035, 罌厭弝ⅰDT held that the Applicant＊s claim against the 2006 decision to revoke his licence to bear an official firearm was receivable, as it was interlinked with the selection process and did not stand alone. 罌厭弝ⅰDT noted that the Management Evaluation Unit (MEU) had dealt with the firearm qualification issue as part of the Applicant＊s submissions on his non-selection decision. On the merits, 罌厭弝ⅰDT found that the Applicant＊s candidacy for the Security Lieutenant posts had not been fairly and fully considered, that he was a victim of harassment in the workplace, that the Chief of United Nations Office at Nairobi＊s Department of Safety and Security (罌厭弝ⅰON/DSS) had abused and exceeded his authority by revoking the Applicant＊s firearm licence without providing reasons for his decision and by not restoring his access to Lotus Notes after the investigations had been completed and no further action had been taken on the matter. 罌厭弝ⅰDT found that the Chief of 罌厭弝ⅰON/DSS, the Assistant Chief of Security 罌厭弝ⅰON and the Human Resources Officer, 罌厭弝ⅰON, had abused their authority by usurping the powers of the Medical Director and declaring the Applicant mentally unstable. 罌厭弝ⅰDT ordered that the Applicant＊s licence to bear a firearm be reinstated, that his access to Lotus Notes be restored and that he be awarded compensation for the violation of his right to full and fair consideration in the selection process and for being subjected to harassment and abuse of authority.

Legal Principle(s)

The specific nature of judicial review reserved to 罌厭弝ⅰDT, under its Statute regarding management and disciplinary measures, includes the power to review how management has responded or not responded, as the case may be, to a complaint of harassment or abuse of power. On appeal, it falls to 罌厭弝ⅰAT to review the conduct of 罌厭弝ⅰDT＊s judicial review. Thus, in harassment and abuse of authority cases, between ST/SGB/2008/5 and the jurisdiction which is vested in both Tribunals, there is a continuum of substantial and procedural protection for both complainants and alleged offenders which must be respected.

Outcome

Appeal granted

OAJ prepared this case law summary for informational purposes only. It is no official record and should not be relied upon as an authoritative interpretation of the Tribunals' rulings. For the authoritative texts, please refer to the judgment or order rendered by the respective Tribunal. The Tribunals are the only bodies competent to interpret their respective judgments, as provided under Article 12(3) of the 罌厭弝ⅰDT Statute and Article 11(3) of the 罌厭弝ⅰAT Statute. Any inaccuracies in the publication are the sole responsibility of OAJ, which should be contacted directly for any correction requests. To provide comments, don't hesitate to get in touch with OAJ at oaj@un.org.

The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.

Applicants/Appellants

Luvai

Entity

Case Number(s)

Tribunal

Registry

Date of Judgement