UNDT/2020/198, Cammarota
The Tribunal is satisfied that the Applicant acted diligently with respect to the filing of his request for management evaluation and met the deadlines set forth by the MEU. This is particularly relevant as the reason for the elapsed time to file such request was the attempt at informal resolution of the dispute under the auspices of the UNOMS. The application is receivable ratione materiae. As the parties entered mediation before the Applicant’s filing of a request for management evaluation, the applicable provision for the calculation of the 90-day deadline to file an application is art. 8.1(d)(i) of the Tribunal’s Statute and not art. 8.1(d)(iv). The application is receivable ratione temporis. The Secretary-General’s discretion to reassign a staff member is somewhat limited by his duty to accept a host nation’s request to remove a staff member from its territory, which may lead to situations where a staff member has to be reassigned on an urgent basis. The choice of a new assignment is a prerogative of the Organization provided that it meets the requirements set forth by the Appeals Tribunal in Rees and Kamunyi. The Applicant has the burden of proving that any assignment(s) was/were prejudicial in any way. It is the responsibility of an Executive Office, where there is one, or of the Organization’s Travel Section, to approve the purchase of airline tickets and to ensure that the applicable rules are complied with. Present an unequivocal authorization to purchase a business class fare, the Applicant cannot be held responsible, under the circumstances, for the fact that one of the trip legs did not qualify for the business class fare. Consequently, the Tribunal finds that the Applicant is entitled to be reimbursed the full cost of the airfare for his round-trip. Under normal reassignment circumstances, storage costs are to be borne by the staff member. In the Applicant’s case, however, there were extraordinary circumstances given the parties involved and the little time granted by the Government to arrange all aspects of the Applicant’s departure from the host country. The Organization has a duty of care towards the Applicant that in this case relates not only to securing alternative employment for him but also to avoiding or, at the very least, minimizing financial hardship arising from his removal from the host country.
Forced removal from the post and the employing entity’s failure to clarify the Applicant’s status.
Every sovereign nation has the right to determine whether it will receive or allow the stay of a diplomatic envoy from another nation in its territory. Therefore, the logical consequence of a persona non grata declaration is that the sending nation must recall its agent. This applies mutatis mutandis to staff members of the United Nations who, in turn, would have to be reassigned, whenever possible, outside of the host nation in question.