Termination (of appointment)

The UNAT held that the former staff member had a duty to promptly disclose to UNFPA that she was under investigation when she resigned from Oxfam–a fact that it considered relevant to her suitability for the position. It noted that the application form included a specific question about whether she resigned while under investigation, indicating her awareness of the Organisation’s core values. The UNAT also emphasized that her letter of appointment stated that she was responsible for providing any required information during both the application process and subsequent employment.

The UNAT...

The Tribunal found that the Respondent was not able to demonstrate that the facts on which the disciplinary measure was based were established by clear and convincing evidence, as otherwise required by the Appeals Tribunal in its jurisprudence.

Having found that the facts on which the disciplinary measure was based had not been established by clear and convincing evidence, the Tribunal also found that there was no established misconduct by the Applicant.

Given the finding of absence of misconduct by the Applicant, the Tribunal also rescinded the sanction imposed on him.

Compensation in lieu is “not related at all to the economic loss suffered” (see Nega 2023-UNAT-1393,para. 62) and there is no duty to mitigate loss as a precondition for receiving in lieu compensation (see Zachariah 2017-UNAT-764). It is, according to the Tribunal’s Statute, an option that the Respondent can take instead of reinstating the Applicant in the service. Therefore, pecuniary loss or gain is not a relevant factor.

Consistent with the requirement to act fairly, justly and transparently, the Respondent bears the burden to show that the Applicant did not possess the core and functional...

Given the reputational risk inherent in any investigation, it was incumbent on the Applicant as a staff member applying for or occupying such a senior position as Head of the Country Office, to notify UNFPA of the allegations, suspension and investigation. Considering the negative publicity that such a situation inevitably generates in the media, UNFPA would have been justified in questioning the Applicant’s suitability as a staff member in general and for the position of Country Representative in particular.

Accordingly, the Tribunal found that the facts anterior in this case were directly...

The Tribunal found that the Applicant’s appointment was lawfully terminated under staff regulation 9.3(a)(i) following the termination of MINUSMA’s mandate. The Tribunal found that there is no basis for the Applicant’s claim that the Administration unlawfully terminated his appointment early because of his health. The Tribunal found that the Applicant’s reliance on ST/AI/2019 and ST/AI/1999/16 was misguided since his appointment was not terminated on health grounds.

Receivability

The Applicant alleged that she was required to work during July and August 2022, before the beginning of her appointment, on the assurances that she would be compensated for the said period. However, she did not receive such compensation.

First, the Tribunal noted that the Applicant was not a staff member in July and August 2022, when she claims that she was required to work as her appointment with UNDP only started on 1 September 2022. Therefore, the Applicant had no standing to contest such a decision at the time.

Second, even considering that the Applicant could have contested...

The UNAT held that the UNDT did not err in finding that the former staff member’s change of title following a reclassification did not amount to an abolition or discontinuance of her post, rendering her termination of appointment unlawful.

The UNAT also determined that the UNDT did not err in awarding the former staff member compensation in lieu of two years’ net base salary. In this regard, the UNAT emphasized that the UNDT correctly considered the fact that the former staff member’s permanent appointment included a specific undertaking stating that she could only be terminated due to an...

The UNAT held that the former staff member had no legitimate expectation of renewal of her fixed-term appointment, as there was no evidence that the Administration had made any express promise that would have created such an expectation. On the contrary, the UNAT found that the Administration had properly informed all affected staff, including the former staff member, of the last date of the MADAD Project and advertised 15 clerical posts internally, inviting staff to apply for alternative positions. The UNAT further held that these actions should be viewed in light of the continuous efforts...

The UNAT held that the former staff member did not meet the burden of showing that the UNDT Judgment was defective, instead merely arguing that the decision was not fair. On the contrary, the UNAT found that in not renewing her fixed-term appointment, the Administration acted lawfully and fairly.

The UNAT emphasized that the Administration’s decision was part of a genuine restructuring which involved, among other measures, reprioritizing existing resources through reassignment, redeployment, and reclassification of staff, including the redeployment of the former staff member’s position from...

As a preliminary matter, the Appeals Tribunal dismissed Mr. Wan's argument that he had been placed at a considerable disadvantage, directly impacting the outcome of the case, by the fact that he had been unrepresented before the ICAO Appeals Board.

Turning to the merits of the case, the Appeals Tribunal affirmed the findings of the Appeals Board that on clear and convincing evidence two counts of misconduct had been proved to have been committed by Mr. Wan which justified the imposition of the sanction of dismissal. On the material presented by the Secretary-General to the President, the...