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

Extract from:

UNITED NATIONS JURIDICAL YEARBOOK

2008

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

. Decisions of administrative tribunals of the United Nations and related intergovernmental organizations

Copyright (c) United Nations

UNITED NATIONS JURIDICAL YEARBOOK 2008

Chapter IV Treaties concerning international law concluded under the auspices of the United Nations and related intergovernmental organizations

A Treaties concerning international law concluded under the auspices of the United Nations

1 Additional Protocol to the Convention on the Contract for the

International Carriage of Goods by Road (CMR) Concerning the Electronic Consignment Note Geneva, 20 February 2008 277 2 Convention on Cluster Munitions Dublin, 30 May 2008 282 3 Annex XVIII World Tourism Organization (WTO) to the Convention

on the Privileges and Immunities of the Specialized Agencies, 1947

Jeju, 30 July 2008 298 4 Optional Protocol to the International Covenant on Economic, Social

and Cultural Rights New York, 10 December 2008 299 5 United Nations Convention on Contracts for the International Carriage

of Goods Wholly or Partly by Sea New York, 11 December 2008 307 B Treaties concerning international law concluded under the auspices of intergovernmental organizations related to the United Nations 343

Chapter V Decisions of administrative tribunals of the

United Nations and related Intergovernmental Organizations

A Decisions of the United Nations administrative tribunal

1. Judgement No. 1382 (9 May 2008): Applicant v The Secretary-General of the United Nations

   Receivability of appeal—Abolition of post—Expiration of contract—

   Agreement to not contest abolition of post—Claim for termination indemnity—Distinction to be made between substance of agreement and its application 345

2. Judgement No. 1387 (8 October 2008): Applicant v The Secretary-General

   of the United Nations

   Classification of post—Right of applicant to be given fair and full consideration in promotion exercise—Interventions by persons having a right which might be affected by the judgement to be given

   by the Tribunal—Broad discretion enjoyed by the Secretary-General in personnel matters—Organization should not conceal from

   staff members pertinent information concerning their future nor

   behave in such a manner as to render staff members entirely demoralised and disillusioned—Cumulative effect of the facts of the

   case reveal a lack of transparency which had demoralized the Applicant in a way amounting to harassment 347

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3. Judgement No. 1388 (8 October 2008): Applicant v The Secretary-General of the United Nations

   Compensation to beneficiaries following the death of a staff member—

   Compensation under appendix D of the Staff Rules and under the Malicious Act Insurance Policy (MAIP)—Duty of good faith owed

   by the organization—Duty to conduct an adequate investigation

   of the death of a staff member—Duty to pursue Applicant’s claim

   under MAIP fairly, effectively and efficiently in her best interest— Compensation under appendix D of the Staff Rules clearly not “reasonable compensation” as required by staff regulation 6 2 349

4. Judgement No. 1389 (8 October 2008): Applicant v The Secretary-General

   of the United Nations

   Implementation of the decision to abolish post—Abolition of post coinciding with expiration of contract—Claim for amount equivalent

   to termination indemnity—Right to three months notice—Agreement to not contest separation from service—Obligation of good

   faith owed by international organizations—Principle of equality of treatment due to all staff members 351

5. Judgement No. 1390 (8 October 2008): Applicant v The Secretary-General

   of the United Nations

   Completion of performance evaluation without participation of staff member—Right to full and fair consideration in promotion exercises—Staff member not afforded opportunity to rebut negative comments in performance evaluation—Consistent and unfailing respect of due process of law by the Administration is the first and foremost part of any successful and satisfactory system of administrative justice 353

6. Judgement No. 1396 (8 October 2008): Applicant v The Secretary-General

   of the United Nations

   Recognition of same-sex marriage—Application of national law in determining the personal status of staff members—The practice followed by the Organization does not result in discrimination based

   on nationality 355

7. Judgement No. 1402 (8 October 2008): Applicant v The Secretary-General

   of the United Nations

   Estoppel with regard to receivability of the claim—Legal expectation of renewal of contract—Compensation in cases where procedural irregularities during the performance evaluation violate due process rights 356

8. Judgement No. 1404 (8 October 2008): Applicant v The Secretary-General

   of the United Nations

   Issuance of written reprimands is subject to the same principles of fairness and due process that apply to disciplinary measures— Allegations of sexual exploitation and abuse—Violation of basic standards of fact-finding—Failure of the Organization to observe standard of care due to staff members 358

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9. Judgement No. 1412 (8 October 2008): Applicant v The Secretary-General

   of the United Nations

   Status under special service agreement (SSA)—Request that period

   served under SSA be validated for pension purposes—Person appointed under SSA not a staff member under United Nations Staff Regulations—Application irreceivable ratione materiae . . . . . . . . . 359

10. Judgment No. 1413 (8 October 2008): Applicant v The Secretary-General

    of the United Nations

    Standing of third party before the tribunal—Conclusion of an agree-ment—Reimbursement of reasonable legal fees—Terms of the agreement—Applicant initially assisted in investigation, but later

    faced disciplinary charges—Amendment to agreement 361

11. Judgment No. 1414 (30 January 2009): Applicant v The Secretary-General

    of the United Nations

    Allegation of misconduct—Procurement rules 9 002 and 9 0016—Financial rules 110 18 and 110 21—Obligation of “absolute impartiality” towards all bidders in procurement process—Allegations

    must be sufficiently specific and certain—Denial of due process if disciplinary measures are imposed on the basis of charges not previously notified to staff member—Proportionality of disciplinary measure—Compensation for damage and moral injury 363

12. Judgement No. 1426 (30 January 2009): Applicant v The Secretary-General of the United Nations

    Compensation for service-incurred injury—Compensation under appendix D of the Staff Rules and under the Malicious Acts Insurance Policy (MAIP)—Breach of Applicant’s rights and legitimate expectation that a medical board be constituted to consider her claim—Subsequent injury not treated as separate claim—Prerequisite that claim be submitted for administrative review and consideration by Joint Appeals Board (JAB) prior to consideration by Tribunal 366

13. Judgement No. 1429 (30 January 2009): Applicant v The Secretary-General of the Untied Nations

    Denial of renewal of contract—Procedural flaws in the performance evaluation process—Judicial review over the exercise of the discretion of the Secretary-General—Assessment of compensation

    under the circumstances of procedural flaws 368

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    B Decisions of the Administrative Tribunal of the International

    Labour Organization

    1 Judgment No. 2685 (6 February 2008): A.E.-R v International

    Telecommunication Union (ITU)

    Removal of staff member from appointment and promotion board—

    Legitimate interest of each staff member to be a staff representative, deriving directly from terms of employment—Breach of freedom

    of association and freedom of expression—When a specific procedure exists for the appointment of a staff representative, a corresponding procedure for removal is implied—Staff representative’s

    duty to attend and participate fully in meetings of the appointment

    and promotion board 371

2. Judgment No. 2691 (6 February 2008): A. H. v International Organization

   for Migration (IOM)

   Decision to transfer staff member tainted with procedural error—Impugned decision in fact an attempt to implement by a different

   route a previously annulled decision—Exhaustion of all internal remedies not necessary when filing an application for execution— Reinstatement as an immediate and inevitable consequence of the annulment of a transfer decision—Second decision to transfer staff member declared null and void ab initio ...................... 374

3. Judgment No. 2704 (6 February 2008): A. G. S. v United Nations Industrial Development Organization (UNIDO)

   Staff member not subject to performance appraisals or supervision as a

   result of release to perform functions as President of Staff Council—Merit promotions—Administrative Instruction No 16 did

   not cover the Complainant’s case—Effect of Administrative Instruction was to deny the Complainant a valuable opportunity— Complainant subject to detriment or disability due to his role as President of Staff Council—Discrimination occurs when persons

   in the same situation in fact and in law are treated differently— Dissimilar situations must be governed by rules that take account

   of the dissimilarity—Principle of equality infringed if the rules

   that govern dissimilarity are not appropriate and adapted to the dissimilarity—If the rules and procedures of international organizations do not ensure adherence to the principle of equality, it is

   their duty to initiate procedures that do—Not the function of the tribunal to proscribe a procedure 375

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4. Judgment No. 2706 (6 February 2008): C. C. v World Intellectual Property Organization (WIPO)

   Transfer of staff member following sexual harassment against her—

   Organization’s reaction not consonant with the duties of an international organization towards its staff—Duty of an organization

   to provide a safe and adequate environment for its staff—Sanction...