UNDT/2015/018, Gehr
The Tribunal found that none of the alleged flaws was substantiated.
The Applicant contested the findings of the panel constituted to review the rebuttal of his 2010-2011 PAS, claiming that the rebuttal process was vitiated by several irregularities, including improper constitution of the panel, failure to consider key submissions, and undue delay.
Receivability: The rebuttal panel is not a “technical body” in the sense of staff rule 11.2, hence, an Applicant is required to first request management evaluation in order to contest its findings. Such management evaluation must be requested before filing an application with the Tribunal. Otherwise, the application will be irreceivable, even if a management evaluation request filed subsequent to the filing of the application still falls within the requisite 60-day limit. Where an applicant has failed to duly fulfill certain receivability requirements relying on the advice of competent officials within the UN internal justice system, it is fair to enter into the merits of the application. Choice in nominating rebuttal panel members: The fact that the combined effect of several factors (such as conflicts of interest and the high grade of the first reporting officer) de facto restricted a staff member’s choice of panel members cannot trigger the Administration’s responsibility, all the more where the latter made efforts to address the situation. Content of the rebuttal panel report: There exists no obligation for the panel to transcribe or even refer individually to the responses provided by the persons interviewed in the course of a rebuttal process. The panel has large discretion in deciding which information gathered is relevant and bears enough importance to be included in its report. Language: Sec. 5 of ST/SGB/212 prescribes that each staff member should be free to use in his “written” communications either English or French, at his or her option. This provision does not create any right concerning oral communications.