Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
Ä¢¹½ÊÓƵAT considered the Secretary-General¡¯s appeal. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT erred by concluding that ST/AI/2002/3 applied to Ä¢¹½ÊÓƵICEF, as the Ä¢¹½ÊÓƵICEF Handbook establishes the procedure that a staff member must follow should they wish to rebut the content of their performance report. Ä¢¹½ÊÓƵAT noted that the principle articulated in Villamoran v. Secretary-General of the United Nations (2011-Ä¢¹½ÊÓƵAT-160), which holds that administrative issuances have greater legal authority over manuals such as the Ä¢¹½ÊÓƵICEF Handbook, only where there is a conflict between guidelines and manuals and a properly promulgated administrative issuance, was not applicable in this case. Ä¢¹½ÊÓƵAT also held that Ä¢¹½ÊÓƵDT erred by concluding that the rights of Ms Mashhour to a rebuttal, as set forth in ST/AI/2002/3, were unduly restricted by Ä¢¹½ÊÓƵICEF. Ä¢¹½ÊÓƵAT noted that, as Ms Mashhour elected not to file a formal complaint of harassment and/or abuse of authority, the Administration¡¯s conduct was legal, rational and correct. Ä¢¹½ÊÓƵAT held that the procedure in the Ä¢¹½ÊÓƵICEF Manuals did not violate the due process of Ms Mashhour¡¯s right to rebuttal. Ä¢¹½ÊÓƵAT also held that Ä¢¹½ÊÓƵDT erred in finding that the Ad-hoc Panel failed to properly address Ms Mashhour¡¯s claim of discrimination, noting that the Ad-hoc Panel properly investigated the allegations in accordance with their understanding of discrimination. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT erred in finding that Ms Mashhour was a victim of workplace harassment, as Ä¢¹½ÊÓƵDT¡¯s conclusion was not supported by the evidence and that Ä¢¹½ÊÓƵICEF¡¯s Deputy Executive Director properly exercised his discretion to accept the recommendations of the Ad-hoc Panel. Ä¢¹½ÊÓƵAT upheld the appeal and set aside the Ä¢¹½ÊÓƵDT judgment, including setting aside the order to expunge Ms Mashhour¡¯s 2008 PER and 2009 PER from her personnel file.
Decision Contested or Judgment/Order Appealed
Ms Mashhour claimed that her 2008 Performance Evaluation Report (PER) and the rebuttal procedure violated her right to due process and requested that it be expunged from her personnel file. She also submitted a formal rebuttal of her 2009 PER, referencing issues of harassment and abuse of authority. Ä¢¹½ÊÓƵDT found that Ms Mashhour was denied due process when she sought to rebut her 2008 PER and 2009 PER. Ä¢¹½ÊÓƵDT also found that the rebuttal process was ¡°flawed,¡± noting that the Ad-hoc Panel, established to review the Performance Evaluation Rebuttal Statements of Ms Mashhour, the Child Protection Officer and the Egypt Country Office, in line with Settlement Agreement Ä¢¹½ÊÓƵDT/NBI/2009/45, failed to address the issue of discrimination. Ä¢¹½ÊÓƵDT found that Ms Mashhour had been subjected to a ¡°hostile and harassing¡± work environment and ¡°poor and objectionable¡± management on the part of her first reporting officer. Ä¢¹½ÊÓƵDT ordered the Secretary-General to pay Ms Mashhour material and moral damages and to expunge her 2008 and 2009 PERs from her personnel records.
Legal Principle(s)
Administrative issuances have greater legal authority over manuals such as the Ä¢¹½ÊÓƵICEF Handbook, only where there is a conflict between guidelines and manuals and a properly promulgated administrative issuance. Neither Ä¢¹½ÊÓƵDT nor Ä¢¹½ÊÓƵAT have the authority to amend any regulation or rule of the Organisation which it finds restrictive, though it may comment on it. It is within the competence of the Ä¢¹½ÊÓƵDT to examine allegations of harassment, but not embark on a de novo investigation into a complaint of harassment.