Suspension of action / interim measures

UNAT considered an appeal of UNDT Order No. 087 by Ms Barud. UNAT dismissed her motion to admit additional documents related to the substantive issue of justification for the non-renewal of her contract, due to their lack of relevance to the matter for decision by UNAT on her application for a suspension of action. UNAT noted that there was no reason why these documents could not be used by Ms Barud for the substantive matter, which was, at that time, before UNDT. UNAT held that the appeal failed on the grounds that Ms Barud did not apply for a suspension within the statutory time limit. In...

UNAT considered an appeal of Order No. 079. UNAT held that, regardless of whether UNDT may have committed an error of law, fact, or procedure, Article 2(2) of the UNDT Statute precluded an appeal to UNAT if UNDT acted within its jurisdiction or competence. UNAT held that UNDT acted within its jurisdiction or competence. UNAT held that the appeal was not receivable. UNAT dismissed the appeal and affirmed the UNDT Order.

UNAT dismissed the appeal, finding it not receivable. The Tribunal explained UNDT decisions on applications for suspension of action are not subject to appeal, pursuant to Article 2(2) of the UNDT Statute. The Tribunal also noted that this case did not fall under the narrow exceptions when appeals against interlocutory orders are allowed, i.e. when it is alleged that the UNDT has exceeded its competence or jurisdiction. UNAT did not find any excess of jurisdiction in the instant case and therefore deemed the appeal irreceivable.

Neither the Statute nor the Rules of Procedure of the Tribunal prescribe the form of the parties’ submissions filed in accordance with an order of the Tribunal. In the absence of such provisions, the matter falls under article 36 of the Rules of Procedures. The respondent has not specified anything in the form of the applicant’s submission that substantively breaches his obligations under the directions made in the Tribunal’s order—the use of the word “grounds” in a subheading instead of “issues” is not a significant difference and generally it is of no importance which template the applicant...

The suspension of action was granted and the adverse report ordered to be removed from the applicant’s official status file pending the outcome of the substantive proceeding.

Two types of interim measures - with different functions, preconditions, restrictions and scope - have to be clearly distinguished. Art. 13 RoP has to be applied exclusively during the pendency of the management evaluation, whereas art. 14 RoP is appropriate only during judicial review in terms of art. 2 and 8 Statute; in short: it is either 13 or 14 – never both. Orders based on art. 13 RoP become ineffective with the end of management evaluation. The present application had to be considered under art. 13 RoP since the contested decision of 12 October 2009 was released under new conditions...

The first management evaluation decision dealt with the issue of the promise made to the Applicant and granted him compensation of three months salary in lieu of further performance of his contract of employment. That decision itself as mentioned earlier does not prevent the Applicant from filing an appeal in respect of the same subject matter that is the non renewal of his contract. Whereas Management has considered the express promise to the Applicant and decided that monetary compensation was sufficient remedy, the Tribunal recalls that it found the “circumstances surrounding the non...

The Applicant addressed a letter dated 29 May 2009 to the Secretary-General requesting him to “reverse that decision” but no mention was made of the non-renewal of the Applicant’s contract because it was only on 30 June 2009 that the Applicant was informed that his contract would not be renewed beyond 30 September 2009. The Applicant sought to establish that he had in fact requested a review of the decision and referred to an email he had sent to the Registrar of the ICTR in which he informed him that he was contesting the decision not to renew his contract. That email was dated 27 April 2009...

The Applicant’s counsel registered his concerns about a potential conflict of interest, given that the Registrar of this Tribunal was involved, at least in part, in the decision making processes which form the substance of the present application. Counsel for the Applicant stated that he simply wished for his concerns to be recorded, but that he was not seeking a ruling on the issue. The Applicant’s concerns with regard to the potential conflict of interest on the part of the Registrar were noted. Notwithstanding the Applicant’s position that he was not seeking a ruling on the issue, the...

Unlawfulness: There has to be evidence to establish that, at the very least, it is probable that the non-renewal decision of itself was unlawful. Irreparable harm: Harm is irreparable if it can be shown that suspension of the action is the only way to ensure that the applicant’s rights are observed. Although the applicant has expectation of fair treatment, any breach of due process in this case is capable of being compensated financially or by correction of the performance record. Should he be ultimately vindicated, he can get compensation for any losses arising out of defects in the...