RECENT SUCCESSES AT THE TRIBUNALS

Photo of Legal Officer Evelyn Kamau working in the courtroom in Nairobi.
Legal Officer Evelyn Kamau working on a case in the UNDT courtroom in Nairobi.

Siddiqi – UNDT/2018/086 (3 September 2018)

Having identified numerous procedural flaws in the disciplinary process, the UNDT relied on the UNAT judgment in Mbaigolmen to carry out a complete re-hearing and redetermination of the merits of the case. The UNDT determined that not all the facts forming the basis of the contested decision had been established through clear and convincing evidence, thereby concluding that the Applicant’s actions pointed to less serious misconduct. It accordingly decided to replace the sanction of summary dismissal with a three-month suspension without pay.

Abbas - UNDT/ 2018/082 (20 August 2018)

The Applicant had been offered and accepted a temporary appointment at a higher level only for another individual to be recruited. The Administration argued a lack of authority on the part of the decision maker who selected the Applicant and the absence of a contract for his temporary appointment. OSLA successfully countered these arguments and the Tribunal found an enforceable contract had existed. The Applicant was compensated for loss of earnings and damage to career prospects.

Yasin – UNDT/2018/87 (4 September 2018)

The Tribunal found that Applicant acted within the limits of her authority when raising concerns and seeking clarification regarding a request for official travel by another staff member. The Tribunal also underscored that disagreements between staff members should not be perceived as harassment and that they are expected to collaborate in a respectful and accurate manner in relation to their work.

Samandarov – 2018-UNAT-861 (29 June 2018)

The UNAT affirmed the judgment of the UNDT that the sanction of the loss of two steps in grade was not a proportionate sanction to the misconduct at issue and thus was unlawful; a written censure was sufficient as the suitable and necessary means to achieve the object of discipline required on the facts. Mr Samandarov had been found to have committed misconduct for threatening to destroy another staff member's camera phone, a threat that was not carried out. The Administration had initially sanctioned him with the loss of two steps in grade and a written censure, but the UNDT reduced the sanction to written censure because the Administration's sanction was disproportionate to the facts.

Timothy – 2018-UNAT-847 (29 June 2018)

In Timothy, the UN Appeals Tribunal reaffirmed that when the Administration abolishes a post that a staff member holding an indefinite (continuing) appointment encumbers, it has an obligation to make a good faith effort to find that staff member a suitable alternative post. In Ms. Timothy's case, the Tribunal found that she should have been considered not only for suitable available posts at the same level but also for all the lower available suitable posts for which she had expressed her interest by way of application thereto.

Ndahigeze – UNDT/2018/061 (30 May 2018)

The Tribunal found that the Hiring Manager in taking into account adverse comments about the Applicant, comments that were outside the selection process and for which the Applicant was never given an opportunity to challenge, the Administration failed to accord the Applicant the full and fair consideration that she was entitled to. The Tribunal awarded the Applicant 3 months net base salary as compensation in lieu of rescission of the contested decision. The decision was not appealed.

Teo – UNDT/2018/044 - (23 March 2018)

The Tribunal found that the involuntary transfer of a staff member from a regular budget post to a general temporary post does have a deleterious impact on a staff member's job security - and is therefore an administrative decision capable of challenge/review.

Al Hallaj – 2018-UNAT-810 (22 March 2018)

Through OSLA, UNAT widened the protection afforded to staff who have received offers of appointment but who subsequently never receive letters of appointment and are never onboarded. UNAT determined that such staff members have Quasi-Contracts which oblige the Administration to act in good faith and provide assistance when required. UNAT emphasized that the Administration has an obligation to adhere to the terms of the emerging contract.

Fernandez Arocena – UNDT/2018/033 (6 March 2018)

The Tribunal found that the outsourcing of assessment tests used as part of a selection process was contrary to ST/AI/2010/3 and therefore unlawful. The Tribunal ordered the Administration to rescind the decision and permit the Applicant to sit a new test.

Belkhabbaz – UNDT/2018/016/Corr.1 – (5 February 2018)

The Tribunal found that the Applicant’s complaints of harassment and abuse of authority had not been properly entertained; there had been a number of procedural errors, including conflict of interest of the responsible official, and the failure to interview the individual accuse of harassment and abuse of authority. In light of the fact that two panels had failed to investigate the matter properly, the Tribunal made its own finding of prohibited conduct. The Applicant was awarded $10,000 in moral damages. Judgment is currently under appeal.

Dahan – UNDT/2018/002 (11 January 2018)

The Tribunal found that the Advisory Board on Compensation Claims (ABCC)’s rejection of the Applicant’s claim for compensation on the basis of delay was unlawful. There was no evidence that they had properly considered her request for waiver. The Tribunal found they erred in considering that there was insufficient explanation for the delay, rather than whether there were exceptional circumstances. Judgment upheld on appeal.