Chapter V. Decisions of the Administrative tribunals of the United Nationnd related intergovernmental organizations

• Pages: 405-451

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Chapter V

DeCIsIons oF the ADmInIstRAtIVe tRIBUnALs oF the UnIteD nAtIons AnD ReLAteD InteRgoVeRnmentAL oRgAnIzAtIons ¹ A. United nations Dispute tribunal

By resolution 67/241 of 24 December 2012, entitled “Administration of justice at the United Nations”, the General Assembly took note of the reports of the Secretary-General on administration of justice at the United Nations, on amendments to the rules of procedure of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal and on the activities of the United Nations Ombudsman and Mediation Services, and endorsed the conclusions and recommendations contained in the report of the Advisory Committee on Administrative and Budgetary Questions The General Assembly also requested that the rules of procedure of the Dispute Tribunal and the Appeals Tribunal be amended accordingly whenever a decision of the Assembly entailed a change In this regard, the Assembly recalled paragraph 35 of its resolution 66/237, in which it had addressed the execution of judgments of the Dispute Tribunal imposing financial obligations on the Organization pending an appeal with the Appeals Tribunal, and noted that corresponding changes to the rules of procedure of the Dispute Tribunal and the Appeals Tribunal had not yet been made

In 2012, the United Nations Dispute Tribunal in New York, Geneva and Nairobi issued a total of 208 judgments Summaries of nine selected judgments are reproduced below

¹In view of the large number of judgments which were rendered in 2012 by the administrative tribunals of the United Nations and related intergovernmental organizations, only those judgments which address significant issues of United Nations administrative law or are otherwise of general interest have been summarized in the present edition of the Yearbook For the full text of the complete series of judgments rendered by the tribunals, namely, Judgments Nos UNDT/2012/001 to UNDT/2012/208 of the United Nations Dispute Tribunal, Judgments Nos 2012-UNAT-189 to 2012-UNAT-279 of the United Nations Appeals Tribunal, Judgments Nos 3051 to 3151 of the Administrative Tribunal of the International Labour Organization, Decisions Nos 461 to 469 of the World Bank Administrative Tribunal, and Judgment Nos 2012–1 to 2012–3 of the International Monetary Fund Administrative Tribunal, see, respectively, documents UNDT/2012/001 to UNDT/2012/208; 2012-UNAT-189 to 2012-UNAT-279; Judgments of the Administrative Tribunal of the International Labour Organization: 112th and 113th Sessions; World Bank Administrative Tribunal Reports, 2012; and International Monetary Fund Administrative Tribunal Reports, Judgment No. 2012–1 to 2012–3.

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1. Judgment No. UNDT/2012/027 (16 February 2012) Servas v Secretary-General of the United Nations²Implementation of settlement agreement reached through mediation—Competence of Tribunal under article 8, paragraph 2 of its Statute—Request to review performance appraisal and retroactively change title and grade of Applicant— Compensation not appropriate when damage not substantiated

On 27 October 2011, the Applicant, a former staff member of the International Trade Centre (“ITC”), filed an application pursuant to article 8, paragraph 2 of the Tribunal’s Statute to enforce the implementation of a settlement agreement reached through mediation The Applicant maintained that by failing to change the functional title on her performance appraisal under the Performance Appraisal System from G-5 Programme Assistant to P-2 Associate Advisor and demonstrating bad faith and negligence in the payment of the P-2 salary retroactively owed to her, the ITC did not comply with its obligations under the agreement

The said agreement, which was signed by the parties on 29 June 2011, provided in relevant part that: “The International Trade Centre shall retroactively separate and reap-point [the Applicant] to the P-2 level, step I as from June 1st 2010 until the expiration of [the Applicant’s] current appointment on July 18th 2011 ” By a letter dated 11 July 2011, the Applicant requested that her performance appraisal for the period from 1 June to 31 December 2010 be changed, with the title of P-2 Associate Programme Officer replacing that of G-5 Programme Assistant The Applicant’s temporary contract was renewed through 18 July 2011, at which time she left the employ of the ITC That same day, she received an amended letter of appointment from ITC which retroactively covered the period from 1 June 2010 to 18 July 2011 and bore the title of P-2 Associate Adviser By a letter dated 21 July 2011, the ITC held that it had met all conditions of the settlement agreement and rejected the Applicant’s request to change her title as given on her performance appraisal Subsequently, the Applicant filed her application to the Tribunal

In considering the Applicant’s claims, the Tribunal first determined that when requested to exercise its jurisdiction under article 8, paragraph 2 of its Statute, its competence was limited to verifying whether the agreement reached through mediation had been implemented Applying this rule to the facts of the case, the Tribunal found that the settlement agreement signed by the parties on 29 June 2011 necessarily involved retroactively placing the Applicant as of 1 June 2010 in the administrative situation she would have been if she had been appointed to a P-2 post Therefore, it required the revision of the Applicant’s performance appraisal for the period from 1 June 2010 to 31 December 2010 Since the ITC had rejected the Applicant’s request to change her title as given on her performance appraisal, the Tribunal ordered the ITC to transmit to the Applicant a revised performance appraisal indicating that the Applicant was evaluated as a P-2 Associate Adviser

With regard to the Applicant’s request for compensation, the Tribunal found that she had not substantiated any damage caused by the ITC’s failure to make the correction to her performance appraisal, and that it would not therefore be appropriate to grant her compensation

²Judge Jean-François Cousin (Geneva)

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2. Judgment No. UNDT/2012/056 (19 April 2012) Fagundes v Secretary-General of the United Nations³Formation of employment contract—Definition of contract, offer and accept-ance—Standard essential terms of employment contract—Annex II of Staff Regulations—Unconditional acceptance by a candidate of the conditions of an offer of appointment before the issuance of a letter of appointment can form a valid contract—Lack of jurisdiction of the Tribunal—Applicant not a staff member

In or about September 2006, the Applicant applied as an external candidate for the advertised P-3 level position of Public Information Officer with the United Nations Stabilization Mission in Haiti (“MINUSTAH”), Department of Peacekeeping Operations (“DPKO”) She was interviewed on 4 October 2006 On 27 September 2006, she received an email from MINUSTAH, which stated:

I am pleased to inform you that you have been selected to serve with the United Nations Stabilization Mission in Haiti (MINUSTAH) as Public Information Officer

You will be contacted in the next coming week by the Personnel Management & Support Service, Office of Mission Support in the Department of Peacekeeping Operations with all the details of your recruitment and we look forward [to] welcoming you to MINUSTAH in the very near future

On the same day, the Applicant replied: “Many thanks for the excellent news! I look forward to joining MINUSTAH” She also took steps to prepare herself for deployment, including by selling her car, subletting her apartment and disconnecting her mobile phone

On 11 October 2006, MINUSTAH provided the Applicant’s name as the selected candidate to the Integrated Human Resources Management Team of Personnel Management and Support Services (“PMSS”), DPKO, for evaluation In or around November 2006, PMSS made the decision not to select the Applicant for the post based on her previous employment history The Applicant was informed of this decision on 13 December 2006 Subsequently, she sought an administrative review within the allowed time and the matter was eventually dealt with by the Joint Appeals Board, following which the Applicant filed an application with the former United Nations Administrative Tribunal After the abolishment of the Administrative Tribunal, the case was transferred to the Dispute Tribunal effective 1 January 2010

For the purposes of determining its competence to hear and pass judgment on the application pursuant to article 3, paragraph 1 of its Statute, the Tribunal focused its analysis on whether the Applicant and the Organization had entered into a contract It defined a contract as an agreement giving rise to obligations which are enforced or recognised by law In the employment context, the Tribunal asserted that a contract is generally formed upon unconditional acceptance of an offer containing the essential terms of the agreement An offer existed where there was an expression of willingness to enter into a contract on specified terms, made with the intention that it is to become binding as soon as it is accepted by the person to whom it is addressed An acceptance represented the final and unqualified expression of assent to the terms of an offer The Tribunal also stated that whether a binding contract had been concluded would be established by making an objective assess-³Judge Carol Shaw (New York)

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ment of what the parties said and did at the time of the transaction What the parties later said they intended to do was secondary to the evidence of their contemporaneous acts

In examining past decisions, the Tribunal noted that in El-Khatib 2010-UNAT-029, the United Nations Appeals Tribunal (“UNAT”) had held that a contract...