Chapter V. Decisions of Administrative Tribunals of the United Nations and related intergovernmental organizations

SUMMARY

A. Decisions of the United Nations Administrative Tribunal 1. Judgment No. 1476 (25 November 2009): Acevedo et al. v. The Secretary-General of the United Nations 332 2. Judgement No. 1490 (25 November 2009): Toh v. The Secretary-General of the United Nations 333 3. Judgement No. 1495 (25 November 2009): Annan v. United Nations Joint Staff Pension Board 335 B. United Nations Dispute Tribunal 1. Judgment No. 003 (22 July 2009): Hepworth v. Secretary-General of the United Nations 338 2. Judgment No. 2009/022 (23 September 2009): Kasyanov v. Secretary-General of the United Nations 340 3. Judgment No. 2009/027 (30 September 2009): Sina v. Secretary-General of the United... (see full summary)

 
FREE EXCERPT

Extract from:

UNITED NATIONS JURIDICAL YEARBOOK

2009

Part Two. Legal activities of the United Nations and related intergovernmental organizations

. Decisions of administrative tribunals of the United Nations and related inter-governmental organizations

Copyright (c) United Nations

contents ix Page

2 Food and Agriculture Organization

Agreement on Port State Measures to Prevent, Deter, and Eliminate Illegal,

Unreported and Unregulated Fishing Rome, 22 November 2009 314

Chapter V decisions of the administrative tribunals of

the United Nations and related intergovernmental organizations

A Decisions of the United Nations Administrative Tribunal

1. Judgment No. 1476 (25 November 2009): Acevedo et al v The Secretary‑General of the United Nations

Suspension of granting of permanent appointments—Conversion of contractual status for staff on fixed-term appointments to permanent appointments—Staff shall be appointed by the Secretary-General under regulations established by the General Assembly—Considerable latitude of discretion enjoyed by the Secretary-General

in matters of appointment, promotion and conversions 332

2. Judgement No. 1490 (25 November 2009): Toh v. The Secretary‑General

of the United Nations

Failure by staff member to disclose financial information and to cooperate with investigation—Imposition of disciplinary measures constitutes a special exercise of quasi-judicial power by Secretary-General—Analysis by Tribunal of proper use of discretion by Secretary-General—Failure to disclose financial information and

to cooperate with investigation constituting misconduct—Proportionality of Sanctions imposed—Allegations of discrimination and harassment to be addressed in an independent cause for redress 333

3 Judgement No. 1495 (25 November 2009): Annan v United Nations Joint

Staff Pension Board

Payment of pension benefits to former staff member elected as Secretary-General—Suspension of pension benefits during term of

office as Secretary-General—Ambiguous meaning of the word “suspension” in this context—Principle that, in complex matters relating to pensions, the Administration must be especially careful and transparent—When possible or reasonable, it is assumed

that the Pension Fund makes assumptions and decisions that are favourable to staff members—In view of ambiguity, interpretation

must be made as having a lesser rather than a greater adverse affect

on Applicant 335

x UNITED NATIONS JURIDICAL YEARBOOK 2009

B United Nations Dispute Tribunal 338

1 Judgment No. 003 (22 July 2009): Hepworth v Secretary‑General of the

United Nations

Lawfulness of a decision not to extend a fixed-term appointment—Request for suspension of a contested administrative decision subject to management evaluation—Interpretation of the expression

“prima facie” in article 2 2 of the UNDT Statute—Staff members serving under fixed term appointment do not have right to renewal unless there are countervailing circumstances—Countervailing circumstances include abuse of discretion in not extending an appointment or an express promise to extend appointment—Organ-ization’s exercise of its discretionary power must not be tainted by

abuse of power—Decision of non-renewal not considered in specie

a veiled disciplinary sanction 338 2 Judgment No. 2009/022 (23 September 2009): Kasyanov v

Secretary‑General of the United Nations

Consideration by internal candidates eligible for lateral move 15 days

after vacancy announcement—Administrative instruction ST/ AI/2006/3 provides for two classes of candidates (15-day candidates and 30-day candidates)—Selection process in two stages, the

second of which will only arise upon the non-identification of a suitable candidate during the first—Maxim generalia specialibus

non derogant—Present case distinguished from Judgement No

310 (1983) of the United Nations Administrative Tribunal 340

3. Judgment No. 2009/027 (30 September 2009): Sina v. Secretary‑General

of the United Nations, Judgment on application for a summary judgment Application for summary judgement under article 9 of the Rules of Procedure—Evidence capable of establishing likelihood of connection between allegations against investigation conclusions critical of

the Applicant and decision to not renew contract 343

4 Judgment No. 2009/030 (7 October 2009): Hastings v Secretary‑General

of the United Nations

Ineligibility of applicants for positions more than one level higher

than personal grade—To establish the meaning and intention of

a United Nations provision, the relevant context is the hierarchy

of United Nations internal legislation—Staff rule 112 2 allows for exceptions to Staff Rules—Exceptions may similarly be made to administrative instructions, which are subordinate legislation— Applicant’s request for an exception to be made not properly considered 344

Page

contents xi Page

5. Judgment No. 2009/034 (13 October 2009): Shashaa v. Secretary‑General of the United Nations

Preconditions in article IX of Staff Regulations and chapter XI in Staff

Rules must be present to terminate permanent contract with the Organization—Good faith efforts must be made by the Organization to find alternative posts for permanent staff members whose

posts are abolished—Staff member’s right to three months’ notice

upon termination of contract—Obligation of the Organization to identify alternative posts within the Organization—Reasonable cooperation can be expected from staff member but onus is on Organization to protect permanent staff member—Universal obligation of both employee and employer to act in good faith towards each other includes acting rationally, fairly, honestly and in accordance with the obligations of due process 346 6 Judgment No. 2009/036 (16 October 2009): Morsy v Secretary‑General of

the United Nations

Request for extension of time limit for filing complaint with Tribunal

(article 8 3 of the UNDT Statute)—Difference in the texts of the relevant provisions of the Statutes of the United Nations Administrative Tribunal and of the UNDT—A legislative body is presumed

to be aware of the state of the law when enacting a statute—When

two acts are in pari materia it can be inferred that a provision

should bear the judicial interpretation previously placed on it—

The expression “exceptional cases” in the UNDT Statute has a wider definition than the expression “exeptional circumstances” in the

Statute of the Administrative Tribunal—“Exceptional” to be interpreted as out of the ordinary, unusual, special or uncommon, and

shall be determined in each case on its own merits—Individual

may by his own action or inaction forfeit his right to be heard by

failing to comply with time limits—Applicant was diligent, but was

caught in the unusual circumstance of a transition between two systems—Finding that there was an exceptional case in the present instance 349 7 Judgment No. 2009/054 (26 October 2009): Nwuke v Secretary‑General

of the United Nations, Judgment on receivability

Application of suspension of action of a disputed administrative decision—Interim relief cannot be ordered in cases of appointment, promotion or termination—Disputed decision not deemed prima

facie unlawful 351

xii UNITED NATIONS JURIDICAL YEARBOOK 2009

8 Judgment No. 2009/075 (13 November 2009): Castelli v Secretary‑General

of the United Nations

Claim for relocation expenses—Break-in-service designed to evade compensation due to staff members with continuous service exceeding

12 months—Relocation grant due upon appointment or assignment

for one year or longer does not necessarily apply upon continuous

service for one year—Employment continued in substance despite

formal break-in-service—Advice of central review bodies not required for appointment which would have the effect of conferring continuous service of one year or more by virtue of accumulation—

When accepting an offer of employment a staff member must be

able to assume that offer is duly authorized—Acknowledgement accepting appointment subject to conditions laid down in Staff Rules

and Regulations cannot be regarded as making the acceptance conditional in any material way—Employment can only be terminated

in specific circumstances under relevant staff rules 353

9 Judgment No. 2009/091 (17 December 2009): Coulibaly v Secretary‑General

of the United Nations

Dismissal for serious misconduct—United Nations staff members must uphold highest standards of integrity—Applicant provided false information in application form, certified its truthfulness, and submitted forged transcript to support statements, in violation of

the United Nations Charter and Staff Regulations—Nemo auditur propriam turpitudinem allegans—Disciplinary measure of dismissal not ill-founded, disproportionate or partial 355

10 Judgment No. 2009/097 (31 December 2009): Lewis v Secretary‑General of the United Nations, Order on suspension of action

Application for suspension of action pending management evaluation—

Decision to not review contract prima facie unlawful—Prerequisite

of urgency satisfied—Mere economic loss can never be considered irreparable harm—Loss of employment for performance reasons

is more than an economic act with more than economic consequences, and can constitute irreparable harm 358 C Decisions of the United Nations Appeals Tribunal 359

Page

contents xiii Page

D Decisions of the Administrative Tribunal of the International

Labour Organization

1 Judgment No. 2778 (4 February 2009): G.J. B., G. D., M. G. and S. M.A.

v European Organization for Nuclear Research (CERN)

Five-year review of the financial and social conditions applicable to members of personnel—Freedom of international organizations

to choose methodology, system or standard for determining salary adjustments for its staff—Chosen methodology must ensure that

the results are stable, foreseeable, and clearly understood—Proper reasons must be given for departure from external standard of reference—Necessity to save money...

To continue reading

REQUEST YOUR FREE TRIAL