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.

Silva – UNDT/2021/006 - 2 February 2021

The Applicant successfully contested her unlawful reassignment from the Administrative and Appeals Section (AAS) in the Administrative Law Division to the Global Strategy and Policy Division. The Client was awarded compensation for moral damage in the amount of three months’ net base salary.

The Dispute Tribunal noted that that even though the relevant legal framework provided no guidance on the procedure to be followed for a transfer decision, “the general principle of good faith and fair dealings dictates that a staff member should typically - and at a minimum—be consulted about such transfer before the final decision is made and priorly be provided with a genuine opportunity to comment thereon”. UNDT held that the Applicant was presented with a fait accompli about her transfer away from AAS rather than with a meaningful consultation about the reassignment decision. The Dispute Tribunal also found that: “as a matter of good faith and fair dealings, an administrative decision that significantly alters the terms and conditions of a staff member’s employment should be notified to this person in a formal written decision” and concluded that this had not occurred in the present case.

UNDT did not accept the Administration’s clarification that “the only reason for transferring the Applicant away from AAS was that a conflict of interest could arise from her prior service as a Second Vice-President of UNSU if she returned to work for AAS as a legal assistant” as a valid justification for her transfer. The Dispute Tribunal emphasized that it was nowhere stipulated in the relevant legal framework governing the Client’s employment with the United Nations Secretariat “that a former UNSU representative cannot assume or return to a position with AAS, or, for that matter, with any other specific entity of the United Nations.”

The Dispute Tribunal concluded that the reasons provided by the Administration were not proper and led to an unreasonable result.

Aslam - UNDT/2020/200 (3 December 2020)

The Applicant challenged the decision rejecting his claim for compensation under Appendix D of the Staff Rules for service-incurred illness as time-barred. The UNDT found that the application was receivable as the Applicant had indeed requested management evaluation of the decision finding his claim time-barred and that earlier communications from the Administration to the same effect were not in response to a proper compensation claim.

On the merits, the UNDT found that the Advisory Board on Compensation Claims (ABCC) had rejected the Applicant’s claim without considering his argument that he missed the deadline due to incapacity. The UNDT also found that there was a valid assumption than the ABCC would require a claimant to provide evidence to elucidate any unclear area of the claim and the ABCC had not sought the views of the Applicant before rejecting the claim. Lastly, the UNDT ruled that the deadline for filing a claim should toll from the date of the incident or the date on which the staff member becomes aware or reasonably should have been aware of the injury or illness. Having found that there were fundamental flaws in the processing of the Applicant’s claim, the UNDT remanded the case for adherence to the right procedure.

Applicant – Order 217(NBI/2020) - 3 November 2020

The Applicant obtained a suspension of implementation of a decision to separate her from the Organization from UNDT until the completion of the management evaluation. The Applicant, a fixed-term appointment holder, had requested an extension of her appointment on humanitarian grounds. While emphasizing that a decision to extend a staff member’s appointment on humanitarian grounds is discretionary, the Dispute Tribunal found that the Administration failed to exercise its discretion correctly. It found that the decision was prima facie unlawful and suspended its implementation.

UNDT held that: “Administrative decisions must be made on proper reasons, and the Administration has a duty to act fairly, justly and transparently in dealing with its staff members. In this case no reasons have been given for the refusal to extend the Applicant’s employment. The Respondent’s silence also shows that there has been no transparency on their part.”

Miksch et al – UNDT/2020/192 - 16 November 2020

Six Applicants, staff members of the Department of Safety and Security (DSS), contested their non-selection to five posts of Security Sergeant and were awarded compensation for loss of economic opportunity.

The Applicants submitted evidence showing that they had been unequivocally informed by DSS that their participation in the written assessment was not a requirement for the purpose of the selection process. However, their non-participation was later taken into consideration in the assessment of their candidatures with respect to other candidates.

The Dispute Tribunal found that the Applicants had been misled and concluded that the Administration had violated its duty to act transparently and in good faith with its staff members.

Loose - 2020-UNAT-1043 (30 October 2020)

The Applicant’s post was funded by extra-budgetary contributions. Several months before her contract expired, she received notice of non-renewal due to unavailability of funds because of arrears in contributions. However, before her contract expired, the Administration received a contribution sufficient to fund the post which the Applicant encumbered. Also, a budget including funding for her position was approved. Despite these developments, the non-renewal decision was not revised.

The UNDT rescinded the decisions not to renew the Applicant’s fixed-term appointment and to separate her from service. Although non-renewal decisions must be evaluated based on the situation prevailing when they are made, non-renewal decisions for unavailability of funds should reasonably be made upon a comprehensive budgetary assessment at the end of the financial year. Because the advance notice of non-renewal was not mandatory, “the Administration was under an obligation to verify whether the financial constraints precluding the renewal of the Applicant’s appointment continued to exist” until the expiration of her contract. The UNDT further ordered that the Applicant be paid one year of net base salary should the Organization elect not to reinstate her in service.

On appeal by the Administration, the UNAT upheld the UNDT judgment finding that in cases of non-renewal for lack of resources, once the staff member has established an apparent case of sufficient resources to support a renewal, the burden shifts to the Administration to prove the reasons not to renew the appointment. Therefore, as the Administration had not furnished evidence to counter the Applicant’s, although it was better placed to have access to it, the UNDT had not erred in finding the non-renewal unlawful.

Civic – 2020-UNAT-1069 - 30 October 2020

The Administration filed an appeal after the Applicant had successfully contested a constructive dismissal resulting from her supervisor’s decision to deprive her of her core functions. The Applicant had been awarded a compensation for moral damage in the amount of six months’ net base salary. UNAT upheld the first-instance judgment.

The Appeals Tribunal found inter alia that by failing to take protective action “and thus exposing Ms. Civic to harmful working conditions for a considerable amount of time, the Administration failed in its duty of care and compensation shall be awarded to alleviate the harm (…)” (at para. 73)

Applicant – UNDT/2020/116 (10 July 2020)

The Applicant challenged the decision of the Advisory Board on Compensation Claims (ABCC) to reject his claim for compensation for major depressive disorder and post-traumatic stress disorder (PTSD), filed in 2016, arising from his traumatic experiences during service with UNICEF in Chad and Somalia from 2006-2013. The ABCC, finding the claim did not present ‘exceptional circumstances’ that would justify waiving the deadline set in Appendix D to the Staff Rules (governing service-incurred injuries), ruled that the claim was time-barred. The UNDT found that the ABCC abused its discretion by relying on the opinion of a medical officer from the Medical Services Division, who had never examined the Applicant, rather than his treating psychologist, on the question of whether the Applicant reasonably could have been expected to file a compensation claim within the deadline. Specifically, the UNDT rejected the Administration’s position that the Applicant had failed to show he was incapacitated throughout the statutory period to file a claim, on the basis that Appendix D does not refer to any capacity test. Accordingly, the UNDT remanded the compensation claim to the ABCC for consideration. It also awarded the Applicant three months’ net base salary and an additional USD 20,000 in moral damages for procedural delays resulting from the ABCC’s secretary ‘undue intervention’ in the ABCC’s deliberations, scheduling delays in ABCC proceedings, and the Administration’s ‘disordering handling’ of the Tribunal proceedings.

Dieng - UNDT/2020/093 (22 June 2020)

The Applicant challenged his reassignment within his Mission and non-renewal of his fixed-term appointment. While the reassignment was based on alleged instances of demonstrating poor behavioural and interpersonal skills, the fact-finding panel which was convened to review such allegations against the Applicant was disbanded before issuing conclusions. The UNDT found that while the Administration had discretion to reassign the Applicant, that discretion was exercised improperly because the Administration failed to comply with the requirement of ST/AI/2010/5 (Performance Management and Development System) that reporting officers “proactively assist the staff member to remedy” shortcomings identified in a staff member’s performance reports. The reassignment of the applicant based on “undisclosed, un-investigated and unresolved” allegations was found to be arbitrary, a violation of the Applicant’s due process rights, and an unlawful veiled disciplinary measure. The UNDT awarded the Applicant one month’s net base salary as compensation for stress and anxiety resulting from the unlawful reassignment.

Applicant - UNDT/2020/094 (22 June 2020)

The Applicant reported that she had been the victim of sexual misconduct by a medical officer during her entry medical examination. A fact-finding panel convened to investigate her allegations pursuant to ST/SGB/2008/5 (Prohibition of discrimination, harassment, including sexual harassment, and abuse of authority) found insufficient evidence to indicate sexual harassment or other prohibited conduct. The panel enquiry resulted in managerial action with respect to the medical officer, in the form of a training course on medical examinations. The UNDT granted in part the Applicant’s appeal of the decision not to refer the medical officer for disciplinary measures. It found that the delay in handling the Applicant’s complaint was unjustified and awarded her USD 12,500 for moral damages. The tribunal also rescinded the fact-finding panel’s conclusion that the evidence did not establish prohibited conduct by the medical officer.

Loose - UNDT/2020/038 (10 March 2020)

The Applicant’s post was funded by extra-budgetary contributions from state parties and observers to an arms control treaty. Several months before her contract expired, she received notice of non-renewal due to unavailability for funds resulting from arrears in contributions. Days later, a state party made a contribution sufficient to fund the post which the Applicant encumbered. The state parties thereafter approved a budget that included funding for her position. Nevertheless, the non-renewal decision was not revisited.

The UNDT rescinded the decisions not to renew the Applicant’s fixed-term appointment and to separate her from service. Although non-renewal decisions must be evaluated based on the situation prevailing when they are made, non-renewal decisions for unavailability of funds should reasonably be made upon a comprehensive budgetary assessment at the end of the financial year. Because the advance notice of non-renewal was not mandatory, “the Administration was under an obligation to verify whether the financial constraints precluding the renewal of the Applicant’s appointment continued to exist” from the time of the notice of non-renewal until the expiration of her contract. The UNDT further ordered that the Applicant be paid one year of net base salary should the Organization elect not to reinstate her in service. The case is currently on appeal to the UNAT.

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