Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT did not err that, in the circumstances of the complaints made and the importance of the Appellant¡¯s role in a difficult duty station, the Respondent was entitled to place the Appellant on Special Leave with Pay while it investigated the allegations against him. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT ought not to have relied upon Morsy (judgment No. 2013-Ä¢¹½ÊÓƵAT-298), Assale (judgment No. 2015-Ä¢¹½ÊÓƵAT-534), and Sarwar (judgment No. 2017-Ä¢¹½ÊÓƵAT-757) as it did. Ä¢¹½ÊÓƵAT noted that in the Appellant¡¯s case, not only was there a performance-related justification required to be established but no proper evaluation of the Appellant¡¯s performance had ever been done. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT was not entitled to dismiss the Respondent¡¯s failure to address the Appellant¡¯s performance issues as inconsequential. Ä¢¹½ÊÓƵAT held that the Respondent was wrong to decide that the Appellant should suffer the contemporaneous sanction of separation in the form of non-renewal of his appointment and that this was a serious breach of the Respondent¡¯s obligations to formally assess and monitor the Appellant¡¯s performance. Ä¢¹½ÊÓƵAT held that the Respondent¡¯s obligation was to postpone any non-renewal decision until that performance management process was completed. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT incorrectly interpreted and applied the ¡°no-difference¡± principle of law. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT exceeded its remit and erred in law by substituting its own determination on the issue of poor performance in determining that the non-renewal based on poor performance was lawful, purportedly under the no-difference principle. Ä¢¹½ÊÓƵAT upheld the appeal and reversed the Ä¢¹½ÊÓƵDT judgment. Ä¢¹½ÊÓƵAT rescinded the Respondent¡¯s non-renewal of the Appellant¡¯s appointment, alternatively awarded compensation equivalent to six months¡¯ net base salary, and directed the removal of any information from the Appellant¡¯s personnel file that was inconsistent with the terms of its judgment.
Decision Contested or Judgment/Order Appealed
The Applicant contested the Secretary-General's decision to place adverse material in his personnel file without providing him with the opportunity to refute it, to place him on Special Leave with Pay, and not to renew his appointment upon expiration. Ä¢¹½ÊÓƵDT rejected the Applicant¡¯s appeal.
Legal Principle(s)
The ¡°no difference¡± principle of law provides that if the Tribunal concludes to a high standard that the outcome would have been inevitable even if the employer had acted in a lawful and procedurally correct manner, then an absence of due process will not avail the employee. Ä¢¹½ÊÓƵDT may reach its own conclusions concerning the performance of a staff member without usurping the role of the employer, but only where there is sufficient material on which to base such conclusions.