UNDT/2019/049, Oakes
The Tribunal held that only the decision of 10 August 2016 was controlling because it informed the Applicant in no uncertain terms that his P-4 appointment was going to be voided. He requested management evaluation on 7 October 2016, which was well within the 60-day delay set out in staff rules 11.2(a) and 11.2(c). This claim was therefore receivable. Revoking the Applicant’s appointment ab initio was disproportionate and thus illegal. Recovery of the Applicant’s paid emoluments was accordingly without basis. The refusal to pay the Applicant’s benefits attaching to service in Mogadishu at the P-4 grade was unlawful. The decision to void the Applicant’s P-4 appointment was rescinded. The Tribunal ordered that all sums recovered consequent to the decision to cancel that appointment be returned and the benefits and entitlements previously unpaid in relation to the deployment in Mogadishu be paid at the P-4 level, taking into account payments that had already been effected at the P-3 level. In the remaining part, the application was rejected as irreceivable.
The Applicant challenged the following: (a) “the implied decision to refuse to either promote or roster him at the P-4 level following his initial 2010 recruitment to the P-4 level and subsequent satisfying of the reference check procedures and minimal education requirements†(b) “the decision to cancel his promotion to the P-4 level effective 1 August 2014†(c) “the decision to claw back payments provided to him under his P-4 letters of appointment†and (d) “the failure to pay benefits and entitlements accruing from his work in Mogadishuâ€
Reliance on the principle invoked by the Respondent that “the administration has an obligation to correct an unlawful decision†to construe a blanket authorisation to retract, at administrative convenience, decisions which confer rights upon staff members, would not be appropriate. A line must be drawn between putting the unlawful situation to an end, which could be applied with a greater latitude, and rescinding the decision with an ab initio effect, which should be reserved for exceptionally grave irregularities. Notwithstanding that the employment relation between the staff member and the Organization was defined not just contractually but by staff rules and regulations, this employment relation fell to be protected even where it would have been concluded in breach of the applicable rules. Concerns identified in the jurisprudence as relevant to this case included: whether the breached regulation concerned a fundamental matter or peripheral issues whether the staff member acted in good faith whether all conditions of the offer were met by the candidate and what kind of detriment the corrective action entailed to the staff member. The Tribunal found that the general concepts of mutual good faith and fair dealing which are implicit conditions of the contract between the United Nations and its employees must apply.