Article 10.5(a)

The Applicant lost a significant portion of his annual leave balance because the Administration used that leave to address the period of unlawful separation. This ongoing injury is of sufficient collateral consequence to preclude mootness despite the partial reversal of the direct effects of the contested decision. Thus, even if the Applicant was reinstated, there remained a live controversy between the parties and as such, the application is not moot.

The contested decision in the case at hand is the non-renewal decision. There is no separate litigation of the decision to charge absence to...

The Tribunal assessed the evidence gathered by the investigators in relation to each incident and concluded that, in most instances, there was no direct or corroboratory evidence of harassment or sexual harassment, and the investigators based their conclusions solely on V01’s narrative. Since almost all the evidence in support of the finding of misconduct comes from V01’s testimony, in opposition to that of the Applicant, establishing V01’s credibility is an essential exercise for a proper adjudication of the case.

However, the investigation failed to adequately establish the reliability of...

Whether the application is receivable

Having reviewed the application in its entirety, the Tribunal notes that the Applicant identified the decision of 1 October 2021 as the final administrative decision, and that in his request for management evaluation he explicitly listed the decision of 1 October 2021 as the decision to be evaluated.

Noting the difference in the fundamental element of the decisions of 12 August 2021 and 1 October 2021, i.e., the amount of the overpayment to be recovered, the Tribunal cannot but conclude that the decision of 1 October 2021 constitutes a new administrative...

Whether the contested decision is lawful

Whether the Administration properly exercised its discretion in not granting the Applicant telecommuting arrangements

The Organization’s duty of care towards staff during the COVID-19 pandemic

Since March 2020, when WHO declared COVID-19 as a global pandemic, the Organization has ensured that all necessary measures are in place to support the safety and health of all UN personnel when carrying out the functions and responsibilities entrusted to them.

The nature of the Applicant’s functions may require her on-site presence, as evidenced by...

The UNAT dismissed the Secretary-General’s appeal and granted Mr. Rolli’s cross-appeal in part.  The UNAT found that the rescission of the termination decision ordered by the UNDT was “pointless” since by the time the case had reached the UNDT, Mr. Rolli’s post had been abolished. The UNAT accordingly held that in these circumstances, compensation had to fall under Article 10(5)(b) and be for harm caused by the unlawful decision.  The harms he suffered included the loss of his remuneration and benefits (education and pension entitlements), the specific losses resulting of his ceasing to be...

UNAT noted that the only issue on appeal was the issue of appropriate compensation for the unlawful contested decision.  UNAT found that the UNDT appropriately found that the requested compensation in the amount of two years’ net base salary was unwarranted as it would exceed the emoluments to which he would have been entitled absent the unlawful termination. UNAT found no merit in Mr. Kilauri’s contention that the UNDT failed to consider the nature and level of the post he formerly occupied and the chances of renewal beyond the expiry of his fixed-term contract but for his unlawful...

The contested decision impacted the Applicant’s terms of appointment or contract of employment. It had a negative impact on the Applicant’s legal situation vis-à-vis his employer and on his ability to properly plan his professional life. It also altered the reason for the Applicant’s separation from service from termination of contract due to abolishment of post to non-renewal. Consequently, the application is receivable ratione materiae.

There is no evidence confirming the alleged operational needs justifying the contested decision to keep the Applicant beyond 31 May 2021. There is enough...

Procedural issue: anonymity In the present case, the sensitive information regarding the Applicant’s medical history and his mental health status constitutes exceptional circumstances that warrant granting anonymity. Therefore, the Applicant’s name is anonymized in the present judgment. Scope of judicial review It is within the Tribunal’s competence to hold a hearing or look at facts that were allegedly not before the decision-maker to determine whether relevant factors have been ignored. This is fundamentally different from a de novo investigation into the facts underlying the disciplinary...

Scope of judicial review In a remanded case, such as the instant one, the Applicant may not expand the scope of claims for remedies contained in her original application and, as such, the Tribunal will not consider her new claims or arguments unless they are essentially related to her original claim in the application. Whether and to what extent the Applicant is entitled to remedies The Appeals Tribunal found in Banaj 2022-UNAT-1202 (see para. 1) that the temporary removal from the Applicant, and reassignment to others, of certain of her functions as Head of UNODC in Albania, was an unlawful...

The Tribunal found that with clear and convincing evidence, the Respondent only managed to establish that the Applicant intended to assert some, albeit ineffective, pressure on BM in the hiring process of daily workers. Under Sanwidi, the Tribunal found that the termination of the Applicant’s appointment was manifestly incorrect and led to a disproportionate outcome. The contested decision was therefore unlawful.  

Considering its findings on the unlawfulness of the contested decision, the Tribunal found that the most appropriate remedy would be to rescind this decision (in comparison, see...