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A decision which has not been the subject of a request for a management evaluation cannot be contested before the Tribunal. As regards promotions, considering the discretionary nature of these decisions, the Tribunal’s role is only to review the legality of the procedure followed and to examine whether there have been any errors of fact in the assessment of the staff member’s career. Under the principle that similar acts require similar rules, the decision that modifies the original provision governing the promotion procedure in UNHCR must be taken through the same procedure followed to adopt...

The Respondent rested his case on the evidence of a witness on whom anonymity was conferred during the investigation and who was not called at the hearing. From the statements made by the witness during the investigation the Tribunal found that his/her testimony was fraught with irregularities and inconsistencies and could not be acted upon. The Tribunal also found that failure to call the witness for cross examination was a breach of the due process requirement. The Tribunal also held that when anonymity is conferred on a witness during the investigation, the Tribunal is not bound by this and...

The UNDT Statute, which is superior in the hierarchy of norms to the Staff Rules, states that an applicant should file an application within 90 days following the expiry of the 45-day period for the management evaluation if the Administration has not replied to his/her request. If the Administration replies after the 45-day period but before the expiry of the 90-day period, a new 90-day period to contest a decision before the Tribunal starts to run. As regards promotions, considering the discretionary nature of these decisions, the Tribunal’s role is only to review the legality of the...

The Deputy High Commissioner, who has received a delegation from the High Commissioner, is legally competent to carry out the management evaluation of a decision taken by the latter. The legality of a decision must be assessed as at the date when it was taken, and not in light of subsequent circumstances. As regards promotions, considering the discretionary nature of these decisions, the Tribunal’s role is only to review the legality of the procedure followed and to examine whether there have been any errors of facts in the assessment of the staff member’s career. Under the principle that...

There may be cases that take longer to be heard by the UNDT and that this may provide a reason justifying compensation beyond the two-year limit. This was such a case. Compensation in lieu of rescission was set at two years and 2 months’ net-base salary. The Applicant’s claim for compensation was excessive. It equated to over 13 years of net-base salary plus payment of a number of entitlements. Apart from being well outside the scope of compensation that might properly be ordered by the Tribunal, the Applicant’s claim was predicated on the mistaken belief that but for the unlawful dismissal he...

Allegations of domestic violence and conflicts over child custody, maintenance or paternity are properly matters for a criminal court and family court to entertain. The Organization has no business using its administrative procedures to involve itself in a personal dispute when other appropriate legal channels were available to the parties to sort out their rights and responsibilities. The unilateral extension of the Applicant’s temporary assignment to Addis Ababa beyond the agreed one month amounted to bias, abuse of authority and a breach of the Applicant’s due process rights.The Applicant...

Reason to believe: that a staff member has engaged in unsatisfactory conduct is buttressed by a fact-finding, which in turn creates the requirement to investigate.Fact-Finding: fact-finding process is the collection and analysis of information to determine the veracity of an allegation against a staff member. It is a prerequisite for an investigation and cannot replace an investigation. As such cannot be used as the basis for imposing a disciplinary measure. Investigation: A disciplinary process can only be initiated based on proper official investigation being conducted under ST/AI/371.

Delegation of authority: Any withdrawal or limitation of the delegation of authority must be explicit. In the absence of a clear and formal revocation of the delegation by the delegating authority, the decision taken by the delegating authority is tainted by a substantial procedural flaw—that of the lack of competence of the decision-maker.Legal certainty and application of administrative issuances: ST/SGB/2009/10 does not provide for transitional measures in situations, such as the instant case, where an eligible staff member is assigned to a different department or office between the time...

Competence of decision-maker: Competence of the decision-maker is a cornerstone of the legality of an administrative decision. When the exercise by the Administration of its discretionary power is under judicial review, any lack of authority leads inevitably to the rescission of the contested decision.As this is an essential element for the legality of the contested decision, the authority of the decision-maker has to be assessed by the Tribunal on its own motion, regardless of the parties’ views at any stage of the administrative and judicial proceedings.Delegation of authority: Exclusions...

Competence of decision-maker: Competence of the decision-maker is a cornerstone of the legality of an administrative decision. When the exercise by the Administration of its discretionary power is under judicial review, any lack of authority leads inevitably to the rescission of the contested decision.As this is an essential element for the legality of the contested decision, the authority of the decision-maker has to be assessed by the Tribunal on its own motion, regardless of the parties’ views at any stage of the administrative and judicial proceedings.Delegation of authority: Exclusions...