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The contested decision was imposed on the Applicant after finding that there was clear and convincing evidence that the Applicant threatened to kill other staff members in the Afghanistan Country Office. The crux of the Applicant¡¯s case was that the facts were not established through clear and convincing evidence as the witnesses present during the alleged threats provided inconsistent testimonies, and the evidence was not properly collected and, consequently, was unreliable. Whether the investigation was vitiated by procedural flaws Having reviewed the whole investigation file, which was not...

The decision did not adversely affect the Applicant The Tribunal referred to its judgment Featherstone Ä¢¹½ÊÓƵDT/2015/117 whereby, inter alia, the decision denying the Applicant a conversion of her fixed-term appointment to a permanent appointment was rescinded and the case was remanded to the ASG/OHRM for retroactive individualized consideration of the Applicant¡¯s suitability for conversion of her appointment to a permanent one as mandated by ST/SGB/2009/10. The Tribunal was satisfied that by the decision of 17 November 2016 (the contested decision), the Organization complied with the terms of...

It was not disputed that the procedural flaws identified by Judgment Rodriguez-Viquez Ä¢¹½ÊÓƵDT/2016/030 in respect of the Second Round of the 2013 Promotions Session for candidates for promotion to the P-5 level also vitiated the consideration of candidates to the D-1 level and thus impacted on the Applicant¡¯s chances to be promoted. The Tribunal noted that it was difficult to ascertain the chances that the Applicant had to be promoted but it was uncontested that they were significant. The Tribunal thus rescinded the contested decision. The Tribunal referred to Rodriguez-Viquez whereby the...

The context of the impugned decision was important because it was central to the Applicant¡¯s case that the decision to exclude her from the comparative review exercise which led to her separation, was made in bad faith, and that it stemmed from the conflict surrounding the decision to transfer her from the CAS Office to the Supply Section. The Applicant¡¯s case was that she was unlawfully excluded from the comparative review pool for Warehouse Assistants. The Applicant was transferred to the Supply Section despite her repeated protests and the explanation given was that the move was made to...

The Tribunal had to determine whether a valid contract existed between the Applicant and Ä¢¹½ÊÓƵISFA, and, in the affirmative, whether the decision not to proceed with his on-boarding was illegal. The Tribunal considered that for the conditions of Gabaldon to apply, it is necessary that the offer of employment extended to a candidate be based on a selection decision made by the person disposing of the relevant delegated authority. Legal framework for delegation of authority to make the selection decision The Tribunal was of the view that at the time of the contested decision in accordance with the...

The Tribunal noted that art. 12.3 of its Statute and art. 30 of its Rules of Procedure limit the scope of applications for interpretation to judgments. Neither the Tribunal¡¯s Statute nor its Rules of Procedure contemplate applications for interpretation with respect to orders. The Tribunal therefore found that the present application was not receivable ratione materiae.

The Tribunal noted that the Applicant, an individual contractor, did not fall under any of the categories of potential applicants under art. 3.1 of its Statute. Noting that individual contractors are not staff members, the Tribunal found that the Applicant had no legal standing and, consequently, that the application was not receivable ratione personae.

The Tribunal concluded that the decision to separate the Applicant was discriminatory, constituted abuse of authority and was therefore unlawful because of the apparent bad faith on the part of the Applicant¡¯s supervisor in initiating and concluding a new recruitment contrary to the Civilian Staffing Review recommendation, and her unauthorized nationalization of the Applicant¡¯s post one year before the approved date. To ensure the Applicant¡¯s continuity of service when decisions are being made about her eligibility for a continuing appointment and after service health insurance, the Tribunal...

The Tribunal finds that since the Applicant¡¯s EOD into the United Nations common system is 10 October 2005, the Administration used the incorrect EOD date for the calculation of the termination indemnity due to the Applicant. Therefore, the contested decision is unlawful and stands to be rescinded. The Tribunal finds that the Applicant has placed no evidence whatsoever, illustrating any discriminatory treatment against him. On the contrary, the record indicates that the Respondent took measures to ensure that the Applicant did not suffer hardship following his separation from service by...

To determine the legality of the contested decision, the Tribunal examined: Whether the first PIP complied with the applicable rules The Tribunal found that the duty to inform the Applicant of his shortcomings and to assist him in improving his performance was fulfilled by his supervisors, particularly the FRO. The documentary evidence and the testimonies during the hearing showed that the Applicant was made aware early on and on different occasions of his performance shortcomings and confronted with them. Efforts were also made to clarify the goals to achieve and to provide support to the...

Ä¢¹½ÊÓƵAT considered the Appellant¡¯s appeal. As a preliminary matter, Ä¢¹½ÊÓƵAT refused the Appellant¡¯s Motion for Leave to File Additional Pleadings. Ä¢¹½ÊÓƵAT referred to Article 3(1) of the RoP and Section II. A. 3 of Practice Decision No. 1 of the Appeals Tribunal, which provides that it may grant such a motion only if there are exceptional circumstances. Ä¢¹½ÊÓƵAT held that the Appellant did not demonstrate any exceptional circumstances in the present case. Ä¢¹½ÊÓƵAT also referred to the transitional measures provided by General Assembly Resolution 63/253 and Article 2(7) of the Ä¢¹½ÊÓƵDT Statute, which notes that...

Ä¢¹½ÊÓƵAT considered an appeal by the Commissioner-General. Ä¢¹½ÊÓƵAT held that the Commissioner-General¡¯s appeal was not time-barred and was, therefore, receivable. Ä¢¹½ÊÓƵAT found that no request for compensation for loss of earnings (salary) had been made. Accordingly, Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵRWA DT did not have jurisdiction to award compensation for loss of earnings. Ä¢¹½ÊÓƵAT held that any financial loss appears to be generated as the main cause and directly by the Director of Ä¢¹½ÊÓƵRWA Affairs, Lebanon¡¯s (DUA/L) decision to cancel the secondment and that this decision was found to be lawful by the Ä¢¹½ÊÓƵRWA DT and that...

Ä¢¹½ÊÓƵAT considered an appeal by the staff member arguing that Ä¢¹½ÊÓƵDT erred in not awarding compensation in lieu of remand to ABCC as an alternative remedy. Ä¢¹½ÊÓƵAT found no error in the Ä¢¹½ÊÓƵDT judgment not awarding in-lieu compensation. Ä¢¹½ÊÓƵAT held that since the Secretary-General concurred with the remand in question, the claim became moot. Ä¢¹½ÊÓƵAT held that a claim of gross negligence against the Administration is a separate action that could not be included in this claim. Ä¢¹½ÊÓƵAT held that the Appellant had not demonstrated that the delay had any impact on her physical or mental well-being, rejecting her...

On appeal by the Secretary-General, Ä¢¹½ÊÓƵAT found that Ä¢¹½ÊÓƵDT erred in fact and in law in its finding that the facts of misconduct were not established by clear and convincing evidence. Ä¢¹½ÊÓƵAT noted that a proper consideration of the whole of the evidence could only have led to one conclusion, and that is that the individual assaulted the victim. Ä¢¹½ÊÓƵAT found that Ä¢¹½ÊÓƵDT did not consider the evidence objectively, specifically by giving misplaced importance to minor inconsistencies, coming to unreasonable conclusions on the facts which were not supported by the evidence, and making speculations instead of...

Ä¢¹½ÊÓƵAT considered the Secretary-General's appeal and the staff members¡¯ cross-appeal. Ä¢¹½ÊÓƵAT first considered the receivability of the appeal and held that the applications were receivable because the contested decision would have an adverse impact on the staff members. With respect to the merits of the appeal, Ä¢¹½ÊÓƵAT noted that the salary entitlements of staff members are statutory in nature and may be unilaterally amended by the General Assembly. Ä¢¹½ÊÓƵAT further noted that an individual loss caused by a unilateral variation of a validly concluded contract poses no legal obstacle to the exercise of...

On an appeal by the Secretary-General, Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT erred in concluding that the applications were receivable. Ä¢¹½ÊÓƵAT noted that Article 2(1) of the Ä¢¹½ÊÓƵDT Statute limits the Ä¢¹½ÊÓƵDT¡¯s jurisdiction to hearing appeals against administrative decisions. Ä¢¹½ÊÓƵAT defined an administrative decision as a unilateral decision of an administrative nature taken by the administration involving the exercise of a power or the performance of a function in terms of a statutory instrument, which adversely affects the rights of a staff member and produces direct legal consequences. Ä¢¹½ÊÓƵAT noted that, with the...

Ä¢¹½ÊÓƵAT found that the appeal raised significant questions of law about the power of the Organisation to unilaterally alter or reduce the compensation of staff members of the Organisation. For that reason, the President of Ä¢¹½ÊÓƵAT in terms of Article 10(2) of the Ä¢¹½ÊÓƵAT Statute elected to refer the appeal for consideration by the full bench of Ä¢¹½ÊÓƵAT. Ä¢¹½ÊÓƵAT recalled that an administrative decision is a unilateral decision of an administrative nature taken by the administration involving the exercise of a power or the performance of a function in terms of a statutory instrument, which adversely affects...

Ä¢¹½ÊÓƵAT referred to Article 2(1) of the Ä¢¹½ÊÓƵAT Statute and held that the Appellant did not show any errors in the Ä¢¹½ÊÓƵRWA DT judgment and her claims on appeal could not succeed. Ä¢¹½ÊÓƵAT further found no fault in Ä¢¹½ÊÓƵRWA DT¡¯s finding that there was no retaliation against the Appellant and that Ä¢¹½ÊÓƵRWA DT did not err on a question of law or fact, resulting in a manifestly unreasonable decision, nor did it commit an error in procedure, such as to affect the decision of the case. Ä¢¹½ÊÓƵAT noted that it was within the discretion of the Agency to close the case against the PMO and that the Agency has no authority to...

Ä¢¹½ÊÓƵAT considered the Secretary-General's appeal, specifically as to whether Ä¢¹½ÊÓƵRWA DT¡¯s decision to award special allowances for extra duties performed and compensation for moral damages was an error in law or fact, resulting in a manifestly unreasonable decision. With respect to the allowance for extra duties, Ä¢¹½ÊÓƵAT noted that it is settled in its jurisprudence that the Agency has discretionary powers to pay the special allowances, which must be exercised reasonably in accordance with their substantive legal requirements. Ä¢¹½ÊÓƵAT held that there was no room for Ä¢¹½ÊÓƵRWA DT to substitute its decision...

Ä¢¹½ÊÓƵAT held that the Appellant failed to challenge the decision that denied the reclassification of her post from a G-8 to a P-2 position within the deadlines of the ICAO Staff Rules 111. 1(7) and 111. 1(5), confirming AJAB¡¯s finding. Ä¢¹½ÊÓƵAT held that there is no obligation of the ICAO Secretary-General to provide a staff member with guidance on the appeals procedure and to advise regarding the time limits. Ä¢¹½ÊÓƵAT held that it does not have jurisdiction to address the merits of the claims the Appellant raises on appeal against the decision that her post was incorrectly classified at the G-8 level...