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

• Pages: 301-326

Chapter V DECISIONS OF THE ADMINISTRATIVE TRIBUNALS OF THE UNITED NATIONS AND RELATED INTERGOVERNMENTAL ORGANIZATIONS 1 A. United Nations Dispute Tribunal In 2014, the United Nations Dispute Tribunal in New York, Geneva and Nairobi issued a total of 148 judgments. Summaries of seven selected judgments are reproduced below. 1. Judgment No. UNDT/2014/040 (14 April 2014): Yakovlev v. Secretary-General of the United Nations 2 Late claim for separation entitlements—Personal standing of former staff member—Proper and lawful exercise of discretion to deny a request for an exception under staff rule 12.3( b )—Award of costs for abuse of process The Applicant, a former staff member who had served as a procurement officer in the Secretariat, challenged the decision of the administration to dismiss his request, made six years after the expiry of the applicable time limit, to proceed with payment of several entitlements he claimed were due to him upon separation. The Applicant asserted that exceptional circumstances beyond his control had made it impossible for him to claim those entitlements in a timely manner. The administration denied the request for an exception but indicated that it might consider paying for tickets for the Applicant and his spouse if the Applicant could prove that he had no financial means to return to his home country. The Applicant did not respond or provide any proof. The issues before the Tribunal were whether the Applicant had standing to bring his application; whether the administration’s discretion to deny the request for an exception was properly and lawfully exercised; and whether the Applicant had manifestly abused the proceedings and, if so, whether costs should be ordered under article 10.6 of the UNDT Statute. 1 In view of the large number of judgments which were rendered in 2014 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/2014/001 to UNDT/2014/148 of the United Nations Dispute Tribunal, Judgments Nos. 2014-UNAT-395 to 2014-UNAT-494 of the United Nations Appeals Tribunal, and Judgment Nos. 2014-1 to 2014-2 of the International Monetary Fund Administrative Tribunal, see, respectively, see the websites of the United Nations Dispute Tribunal (http://www.un.org/en/oaj/dispute/judgments.shtml), the United Nations Appeals Tribunal (http://www.un.org/en/oaj/appeals/judgments.shtml) and the Administrative Tribunal of the International Monetary Fund (https://www.imf.org/external/imfat/jdgmnts.htm). 2 Judge Goolam Meeran (New York). 302 UNITED NATIONS JURIDICAL YEARBOOK 2014 The Tribunal found that the Applicant had standing to bring his application, but failed to establish that the administration’s decision to refuse to grant him an exception to the two-year time limit under staff rule 12.3( b ) and proceed with payment was unlawful. The Tribunal further found that the Applicant manifestly abused the proceedings before it. With regard to the issue of standing, the Tribunal referred to article 3, paragraph 1, of its Statute which provides that an application under the Statute may be filed by “any former staff member of the United Nations”. The Tribunal also referred to staff rule 12.3( b ) and the absence of language therein that would limit the application of the rule to current or former staff members in respect of entitlements that had not expired, and found that the rule encompassed exceptions that allowed the waiver of time limits provided for in the Staff Rules. With respect to the exercise of discretion, the Tribunal observed that the Applicant asserted his own turpitude against the Organization as a ground for not having been able to comply with the Rules. The Tribunal noted that the Applicant had had ample opportunity to request a deferment of payment of his separation entitlements but had opted not to do so. The Tribunal also noted that the Applicant had effectively refused to prove that he was impecunious and thus obtain payment of the cost of return travel home. The Tribunal found that the Applicant failed to establish that the administration’s decision to refuse to grant him an exception under staff rule 12.3( b ) was unlawful. With respect to abuse of process, the Tribunal considered that the Applicant chose deliberately to omit disclosing information with respect to the very same factors that led the administration to exercise its discretion to refuse his request, and chose to ignore the administration’s willingness to consider, for humanitarian reasons, payment of his travel back home prior to filing his application with the Tribunal. By choosing to bring the matter before the Tribunal while the administration stood ready to reconsider its decision at least in part, the Applicant used up valuable resources and time that would otherwise have been devoted to other more urgent matters pending before the Tribunal. The Tribunal also rejected the Applicant’s reliance on his incarceration (following his arrest and conviction for financial crimes he committed against the Organization) as force majeure and found it to be disingenuous, frivolous and unreasonable. There were no unpredictable or uncontrollable events that would have prevented the Applicant from filing his claim for separation entitlements. As a result, the Tribunal found that the Applicant had manifestly abused the proceedings before it and ordered the Applicant to pay costs in the sum of USD 5,000 for abuse of process. chapter V 303 2. Judgment No. UNDT/2014/051 (14 May 2014): Nartey v. Secretary-General of the United Nations 3 Refusal to grant a lien on a post—Prohibited conduct of harassment, abuse of authority and retaliation for testifying as a witness before the Tribunal in another case—Receivability of application without prior resort to management evaluation—Award of compensation for procedural irregularities and moral damages—Referral to the Secretary-General pursuant to article 10, paragraph 8, of the Statute of the Tribunal The Applicant contested, inter alia , the decision by the United Nations Office at Nairobi (“UNON”) not to grant a lien on his post to enable him to undertake a mission assignment to the African Union/United Nations Hybrid Operation in Darfur (“UNAMID”). The Applicant asserted that the decision was taken as part of a series of prohibited conduct and retaliatory actions against him for having testified as a witness before the Tribunal in the case of Kasmani (UNDT/NBI/2009/67). The Tribunal first considered whether the application was receivable. The Tribunal observed that it was clear that the administration’s objection to the receivability of the case had at its core the failure of the Applicant to request management evaluation of each of his allegations of prohibited conduct and/or retaliation. It referred to ST/SGB/2008/5 and observed that prohibited conduct of harassment and abuse of authority against a staff member would most often be seen to have occurred over a period of time and involve a series of incidents. To argue that a victimized staff member must make a request to the Management Evaluation Unit (“MEU”) on every occasion on which alleged prohibited conduct took place was untenable. Having regard to the peculiar characteristics and elements of prohibited conduct, the Tribunal held that the application was receivable. The Tribunal then considered whether the Applicant was a victim of harassment and/ or retaliation following his testimony in the Kasmani case. After considering the evidence and examining whether there were any actions, inactions, utterances and/or series of incidents which supported the Applicant’s claim that he was a victim of prohibited conduct and retaliation at UNON, the Tribunal found that the administration had acted based on motives bent on exacting retaliation and forcing the Applicant out of UNON. The Tribunal recalled that in the Kasmani case it made an order of protection from retaliation in favour of the witnesses in that case, which included the Applicant, and found that testifying before a Tribunal amounted to an “activity protected by the present policy” within the scope of section 1.4 of ST/SGB/2005/21. The order in the Kasmani case also had directed that the Ethics Office be seized of the matter and monitor the situation for further action should there arise allegations of violations of the order. Subsequently, the Applicant submitted a complaint of discrimination, harassment, abuse of authority and retaliation by UNON to the Ethics Office. The Tribunal considered that the Ethics Office did not adequately act upon the report of retaliation filed by the Applicant in accordance with the provisions of ST/SGB/2005/21, failed to protect him, and failed to obey the order made in the Kasmani case. The Tribunal awarded the Applicant six months’ net base salary as compensation for procedural irregularities resulting from the failure of the administration to follow its 3 Judge Nkemdilim Izuako (Nairobi). 304 UNITED NATIONS JURIDICAL YEARBOOK 2014 own guidelines and its rules and procedures, together with moral damages in the sum of USD 10,000 for the stress caused to the Applicant over a period of years. The Tribunal also referred an official from UNON and an official from the Ethics Office for accountability under article 10.8 of the UNDT Statute. 3. Judgment No. UNDT/2014/059 (5 June 2014): Ogorodnikov v. Secretary-General of the United Nations 4 Proportionality of disciplinary measure—Insufficient considera tion of mitigating circumstances—Rescission and replacement of dis ciplinary measure—Award of compensation for loss of earnings The Applicant, a civil affairs officer with the United Nations Assistance...