Decisions of the united nations administrative tribunal2
Judgement no. 951 (28 July 2000): Al-KhAtib v. the CommissionergenerAl of the united nAtions relief And WorKs AgenCy for PAlestine refugees in the neAr eAst3
Termination of services in the interest of the Agency —“Interest of the Agency” should not be narrowly construed—Staff Regulations and Rules must be invoked regarding allegation of misconduct—Question of harm against the Agency’s good image—Question of loss of confidence in staff member
The Applicant entered the service of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) on a temporary indefinite appointment on 2 January 1991, as an Area staff member in the capacity of a Sanitation Labourer. Effective 1 January 1993, he was transferred to the post of Doorkeeper/Cleaner at the North Amman area office.
In October 1996, the Applicant was arrested on a rape charge, and on 5 April 1997, the Great Criminal Court of Jordan found the Applicant innocent. However, on 3 July 1997, the Officer-in-Charge of UNRWA Operations in Jordan wrote to the Applicant and informed him of the decision to terminate his services in the interest of the Agency under Area staff regulation 9.1 and staff rule 109.1, effective that date. The Applicant appealed.
In consideration of the case, the Tribunal noted that while the Respondent enjoyed a wide discretion as to what constituted “the interest of the Agency”, it was not a discretion that was unfettered; it was a discretion which must be exercised rationally. Such a decision could not be made capriciously or arbitrarily, and furthermore, the reasons for such a decision should be apparent so that they might be reviewed by a Joint Appeals Board or another body or by the Tribunal.
The Tribunal further considered that the term “in the interest of the Agency”, should not be construed so as to embrace only the concept of the convenience of the Agency. There were other competing interests at stake, and it was in the interest of the Agency to be seen to act fairly, and would not be in the interest of the Agency to make decisions that were patently unjust and to act thereon.
In the present case, the Tribunal noted that both FAO, which had also been involved in the investigation of the incident, and the Acting Director of UNRWA Operations in Jordan had been unwilling to accept the acquittal by the Great Criminal Court at face value, and construed the “atwa” payment to the accusing woman’s family by the Applicant’s family as a sign of guilt. Moreover, the Acting Director
had expressed the view that it would have been impossible also for cultural reasons to reinstate the Applicant at the same area office because the staff, particularly the females, would neither understand nor accept his return. In addition, in his view, there was credible information that the Applicant had “not observed due restraint vis-à-vis female visitors to the area office”.
The Tribunal recalled that when an allegation or suspicion of misconduct was such so as to result in termination of services, the United Nations Staff Regulations and Rules pertaining to allegations of misconduct must be invoked, and a failure to do so would likely constitute an abuse of power or an abuse of procedure (cf. Judgement No. 877, Abdulhadi (1998)). The Tribunal, while satisfied that the Respondent was not bound by the acquittal of the Applicant on the rape charge, was equally satisfied that the Respondent was not entitled, without proper investigation or inquiry and without affording the Applicant a fair hearing, either to reach his own, different verdict in relation to that charge or to terminate the Applicant’s services in the interest of the Agency.
The Tribunal also considered the Respondent’s contention that the whole affair had harmed the Agency’s good image in Jordan, which was tantamount to saying that when an allegation had falsely been made against an innocent person and that false allegation had harmed the Agency’s good image, it could nonetheless justify termination of the services of the innocent person. In the opinion of the Tribunal, such a concept would be a defiance of legal principle, justice and common sense.
The Tribunal was furthermore not satisfied that a loss of confidence in the Applicant was sufficient to justify the termination of his services “in the interest of the Agency” unless the facts giving rise to such a loss of confidence were identified.
For the foregoing reasons, the Tribunal ordered the rescission of the decision to terminate the Applicant’s appointment, and that he be reinstated in a position with the grade and the step that he held when he was separated, with full payment of salary and emoluments from the date of his separation from service. Should the Respondent, within 30 days of the notification of the present judgement, decide, in the interest of the Agency, that the Applicant should be compensated without further action being taken in his case, the Tribunal fixed the compensation to be paid the Applicant at two years of his net base salary.
Judgement no. 954 (28 July 2000): sAAf v. the Commissioner- genrAl of the united nAtions relief And WorKs AgenCy for PAlestine refugees in the neAr eAst4
Complaint against transfer and separation from service because of redundancy—Discretion to transfer must not be abused—Question of disguised disciplinary sanction—Issue of abolition of post being fictitious—Issue of adequate efforts made to reassign staff member—Question of procedural irregularity giving rise to moral damages
The Tribunal dealt with two applications in one judgement. The Applicant first challenged the decision to transfer him with salary protection from the post of Director of UNRWA in Jordan, which was graded D-1, to the P-5 post of Chief of the Programme Planning and Evaluation Office in Jordan.
The record showed the satisfactory nature of the Applicant’s performance until the latter half of 1995, when the Jordan office of UNRWA was reorganized. On 4 September 1995, the Acting Deputy Commissioner-General wrote to the Commissioner-General, calling his attention to a “disturbing situation concerning relations between headquarters Amman and the Jordan field office, in particular visà-vis the Field Director”, and informing him of a “series of incidents” that had taken place in which “the instructions were circumvented” and his “prerogatives ignored”, creating serious problems for the Agency. On 14 September 1995, the Applicant wrote to the Commissioner-General, disagreeing with the Acting Deputy Commissioner-General’s concerns. He also wrote the Commissioner-General, requesting that he be considered for the post of Field Office Director of the Syrian Arab Republic.
In a letter dated 20 October 1995 to the Applicant, the Commissioner-General expressed dissatisfaction with the Applicant’s explanations regarding the contents of the 4 September letter and informed him of his decision to transfer him to the P-5 post in Jordan. The Applicant contended that the transfer was an abuse of discretion and was a disguised disciplinary sanction.
In consideration of the case, the Tribunal recalled that the established law was that, while the Administration had a discretion to transfer (cf. Judgements No. 167, Fernandez Rodriguez (1973), and No. 189, Ho (1974)), the discretion must not be abused. The discretion to transfer might have been abused, inter alia, if an appropriate procedure was not followed, or the decision had been implemented in an arbitrary manner which resulted, for example, in injury to the good name and dignity of the staff member, or if undue harm and injury was caused to the staff member. In the present case, as the Tribunal observed, the Applicant had been given ample notice of dissatisfaction with his recent performance and he had had an opportunity to comment. The decision to transfer had been taken by the Administration with full knowledge of the Applicant’s views on the standard of his performance and the position to which he wished to be transferred. Beyond that the staff member had no right as such to have his interests honoured (cf. Judgement No. 241, Furst (1979)). Furthermore, the Tribunal noted that no convincing evidence had been adduced that the Applicant had been treated in a manner that was insulting or damaging to his reputation or that undue harm and injury had been caused him.
The Tribunal held, therefore, that the Administration had not abused its discretion by any procedurally irregular conduct or arbitrary conduct. Furthermore, in the view of the Tribunal, the Administration had not committed a substantive error in coming to the conclusion that a transfer was necessary, principally because the Applicant’s performance had not been up to standard.
Regarding the second issue raised by the Applicant concerning the transfer, the Tribunal found no evidence for concluding that there had been a detournement deprocédure because the transfer was a disguised disciplinary sanction. The Tribunal had established in a very early case that “although the Administration may not substitute one ground for another as a basis for administrative action, where there are several grounds available to it, it is not obligatory on its part to rely on all such grounds; it may choose to rely on one or more of them.” (Cf. Judgements No. 157, Nelson (1972), and No. 386, Cooper (1987).) However, in the opinion of the Tribunal, there was little evidence that this was the situation in the present case. Indeed, there did not seem to be any evidence of misconduct deserving disciplinary action; rather, the issue was the Applicant’s unsatisfactory performance.
The Applicant also raised several issues concerning his termination on the ground of redundancy. The Applicant had been informed on 30 July 1997 that the post he was occupying would be “disestablished as of 31 August 1997”, and that since the...