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 OrganizationAgreement 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 NationsSuspension 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-Generalin matters of appointment, promotion and conversions 332 2. Judgement No. 1490 (25 November 2009): Toh v. The Secretary‑Generalof the United NationsFailure 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 andto 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 BoardPayment of pension benefits to former staff member elected as Secretary-General—Suspension of pension benefits during term ofoffice 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 assumedthat the Pension Fund makes assumptions and decisions that are favourable to staff members—In view of ambiguity, interpretationmust be made as having a lesser rather than a greater adverse affecton 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 NationsLawfulness 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 byabuse of power—Decision of non-renewal not considered in speciea veiled disciplinary sanction 338 2 Judgment No. 2009/022 (23 September 2009): Kasyanov v Secretary‑General of the United NationsConsideration by internal candidates eligible for lateral move 15 daysafter 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, thesecond of which will only arise upon the non-identification of a suitable candidate during the first—Maxim generalia specialibusnon derogant—Present case distinguished from Judgement No 310 (1983) of the United Nations Administrative Tribunal 3403. Judgment No. 2009/027 (30 September 2009): Sina v. Secretary‑Generalof 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 ofthe Applicant and decision to not renew contract 343 4 Judgment No. 2009/030 (7 October 2009): Hastings v Secretary‑Generalof the United NationsIneligibility of applicants for positions more than one level higherthan personal grade—To establish the meaning and intention ofa United Nations provision, the relevant context is the hierarchyof 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 NationsPreconditions 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 whoseposts are abolished—Staff member’s right to three months’ noticeupon 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 ofthe United NationsRequest 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 presumedto be aware of the state of the law when enacting a statute—Whentwo acts are in pari materia it can be inferred that a provisionshould 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 theStatute of the Administrative Tribunal—“Exceptional” to be interpreted as out of the ordinary, unusual, special or uncommon, andshall be determined in each case on its own merits—Individualmay by his own action or inaction forfeit his right to be heard byfailing to comply with time limits—Applicant was diligent, but wascaught 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‑Generalof the United Nations, Judgment on receivabilityApplication 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 primafacie unlawful 351 xii UNITED NATIONS JURIDICAL YEARBOOK 2009 8 Judgment No. 2009/075 (13 November 2009): Castelli v Secretary‑Generalof the United NationsClaim for relocation expenses—Break-in-service designed to evade compensation due to staff members with continuous service exceeding12 months—Relocation grant due upon appointment or assignmentfor one year or longer does not necessarily apply upon continuousservice for one year—Employment continued in substance despiteformal 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 beable to assume that offer is duly authorized—Acknowledgement accepting appointment subject to conditions laid down in Staff Rulesand Regulations cannot be regarded as making the acceptance conditional in any material way—Employment can only be terminatedin specific circumstances under relevant staff rules 353 9 Judgment No. 2009/091 (17 December 2009): Coulibaly v Secretary‑Generalof the United NationsDismissal 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 ofthe 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 actionApplication for suspension of action pending management evaluation— Decision to not review contract prima facie unlawful—Prerequisiteof urgency satisfied—Mere economic loss can never be considered irreparable harm—Loss of employment for performance reasonsis 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 organizationsto choose methodology, system or standard for determining salary adjustments for its staff—Chosen methodology must ensure thatthe results are stable, foreseeable, and clearly understood—Proper reasons must be given for departure from external standard of reference—Necessity to save money...
Chapter V. Decisions of 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 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)
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