UNDT/2020/002, Micaletti
UNAT Held or UNDT Pronouncements
On the first issue of placing of the note on the Applicant’s personnel file, the Tribunal found that the Applicant did not dispute that the Respondent complied with ST/AI/292 which governs placement of adverse materials on personnel files. The Applicant conceded that the Respondent acted within the law. The Applicant also provided his comments on the note. On that basis, the application on the first issue was found not receivable as it did not disclose any administrative decision that had any direct legal consequences on the Applicant’s contract or terms of his employment. On the second issue, the Tribunal held that the Applicant had not cited any term of his contract or his employment or jurisprudence that entitled him or the Tribunal for that matter to compel the Secretary-General to institute or conclude disciplinary proceedings against a former staff member. Accordingly, the Tribunal found the second issue not receivable as there was no administrative decision which was subject of an appeal. Consequently, the application was dismissed in its entirety.
Decision Contested or Judgment/Order Appealed
The Applicant contested four decisions, namely: a)The decision to place adverse material in his Official Status File. b)The decision to deny him the right to defend himself, to due process and to work, by withholding the disciplinary process that the Secretary-General had initiated. c)The decision to properly consider his submissions that refute the allegations made against him, not to grant his requests for evidence and not to observe his due process rights, which he requested in his letter to the Assistant SecretaryGeneral, Office of Human Resources Management. d)The decision not to disclose and assess the records of the two audio interviews of the witness that the Office of Internal Oversight Services (OIOS) claimed had corroborated one of the two OIOS’s final findings mentioned in paragraph 146 of an OIOS investigation report of 18 November 2016. The Tribunal however, reduced the four decisions contested by the Applicant to only two issues for determination, namely: a)The decision relating to placing of the note on the Applicant’s personnel file and its consequences b)The decision relating to the alleged failure of the Respondent to afford the Applicant his due process rights in the manner that he handled allegations of misconduct regarding four complaints filed against the Applicant.
Legal Principle(s)
Pursuant to ST/AI/292, adverse material may not be included in the personnel file unless it has been shown to the staff member concerned and the staff member is thereby given an opportunity to make comments thereon. As per the jurisprudence of the Tribunal, a staff member or a former staff member is not entitled to require the secretary-General to institute disciplinary proceedings against him or her, whether to give an opportunity to clear his or her name or for any other reason.