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

SUMMARY

A. Decisions of the United Nations Administrative Tribunal 1. Judgement No. 914 (23 July 1999): Gordon and Pelanne v. the Secretary-General of the United Nations Failure to compensate sufficiently for the non-circulation of vacancy announcements—Waiver of a vacancy announcement in "an extraordinary emergency situation"—Respondent has burden of proof of demonstrating that staff member had received consideration for a post or promotion—Remedies for serious maladministration—Staff rule 112.3 2. Judgement No. 923 (29 July 1999): Moore v. the Secretary- General of the United Nations Separation from service—Material misstatement of fact on P. 11 form—Staff regulation 9.1—Issue of a special advisory board to review termination decision—Question of improper motive or prejudice—Effect of additional information requested from staff member for deficient P. 11 form—Issue of proper recruitment process 3. Judgement No. 930 (15 November 1999): Khawaja v. the Secretary-General of the United Nations Non-conversion of fixed-term appointment—Staff rule 104.12 (full and fair consideration for permanent appointment)— Staff rule 109.7 (no expectation of renewal or conversion of fixed-term appointment)—Issue of secondment from government service—Staff rule 104.12 (b) (iii) (all interests of Organization should be taken into account) 4. Judgement No. 936 ( 15 November 1999): Salama v. the Secretary-General of the United Nations Lateral transfer and non-promotion to D-l—Secretary-General has power to appoint staff members—Justified expectations raised by the Organization must be fulfilled—Cardinal principle of good faith towards staff member—Article 9 of Tribunal's statute—Staff rule 112.3—Clarification of Tribunal's jurisdiction in promotion cases 5. Judgement No. 939 (19 November 1999): Shahrour v. the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East Termination under Area staff regulation 9.1 and Area staff rule 109.1—Discretion in deciding to terminate... (see full summary)

 
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Chapter V

DECISIONS OF ADMINISTRATIVE TRIBUNALS OF THE UNITED NATIONS AND RELATED INTERGOVERNMENTAL ORGANIZATIONS

  1. Decisions of the United Nations Administrative Tribunal2

    1. JUDGEMENT NO. 914 (23 JULY I 999): GORDON AND PELANNE V.

      THE SECRETARY-GENERAL OF THE UNITED NATIONS3

      Failure to compensate sufficiently for the non-circulation of vacancy announcements—Waiver of a vacancy announcement in "an extraordinary emergency situation "—Respondent has burden of proof of demonstrating that staff member had received consideration for a post or promotion—Remedies for serious maladministration—Staff rule 112.3

      Because the two Applicants set forth the same pleas and raised identical issues, namely, the filling of two D-l post in the Office of Human Resources Management without first circulating vacancy announcements for the posts, the Tribunal ordered the joinder of the cases.

      The Applicants had maintained that the failure to circulate vacancy announcements "violated their right to be considered fairly and objectively for the posts", and that the decision violated the relevant provisions of Secretary-General's Bulletin ST/SGB/267 of 15 November 1993 and administrative instruction ST/AI/390, also of 15 November 1993, on placements and promotion.

      The Respondent had conceded that proper procedures were not followed, but argued that the reorganization of the Office required that the two D-l posts be filled on an urgent basis, and that the Office could not afford a delay of four to six months that would have resulted from announcing these two vacancies and following the normal placement and promotion procedures.

      The Joint Appeals Board (JAB) had found that the urgency alleged by the Respondent was not of sufficient magnitude to overcome the need to issue a vacancy announcement, and the Tribunal agreed. The Tribunal was satisfied that, under the standard established in Judgement No. 362, Williamson (1986), no "extraordinary emergency situation" existed that might have justified the suspension of proper procedures for promotion. Such situations, for example, might include peacekeeping or natural disaster relief operations. The Tribunal was of the view that the Assistant Secretary-General for Human Resources Management could have found other ways of coping with the reorganization of his department, without having to breach the procedures guaranteeing due process for the Applicants. If, as the Respondent claimed, the allegedly "urgent" circumstances could be considered an "extraordinary emergency situation", justifying a departure from the rules, such an excuse could be invoked so frequently that the rules would seldom be followed. Such a result would lead to a complete breakdown of the promotion system, would severely affect career development and would lead to wholesale favouritism.

      The Tribunal, pointing out that the Respondent had the burden of proving that a staff member received consideration for a post or promotion, was in agreement with the JAB findings that the Respondent had failed to demonstrate that the Applicants had been fully considered for promotion for the posts in question (cf. Judgement No. 447, Abbas (1989)).

      The JAB had recommended, and the Secretary-General accepted, that the Applicants are awarded compensation of two months net base salary for the irregulari-ties; however, the Tribunal was of the view that in the light of the serious breach of procedures, the amount of compensation awarded was inadequate. The Tribunal recalled that the Board's reason for limiting its recommendation of compensation was there was no indication that the Applicants would have automatically been selected for the posts had they been given full consideration, and found this argument unpersuasive. In the Tribunal's view, as a result of the improper procedure implemented by the Respondent, the Applicants had been automatically excluded from any opportunity to compete for the posts. The Respondent's disregard of proper procedures was detrimental to the Applicants' career development, and had caused the frustration and mental anguish of not being considered for posts for which they might have been qualified. Moreover, the Tribunal could not take lightly the violation of due process by the Respondent, particularly when ST/AI/390 (superseded in 1996 by ST/AI/413), had been enacted by the Respondent in order to prevent the very practices to which he had resorted in the present case. The Tribunal found that in the light of the extraordinary circumstances described above, the Applicants were entitled to a larger amount of compensation than was recommended by the JAB and accepted by the Respondent.

      The Tribunal felt compelled to add that this was such a serious case of maladministration that consideration should be given to invoking staff rule 112.3, which provided:

      "Financial responsibility

      "Any staff member may be required to reimburse the United Nations either partially or in full for any financial loss suffered by the United Nations as a result of the staff member's negligence or of his or her having violated any regulation, rule or administrative instruction."

      Thus, the Secretary-General might decide that the officials who violated staff regulations and administrative instructions should be held personally accountable for the monetary damages occasioned by such violations, (cf. Judgements No. 358, Sherif (1995), and No. 887, Ludvigsen (1998)). Invoking staff rule 112.3 would deter staff from deliberately flouting the rules and prevent the Organization from having to pay for the intentional violation of the rules by its officials.

      For the foregoing reasons, the Tribunal ordered the Respondent to pay the Applicants each compensation in the amount of 18 months of base salary.

    2. JUDGEMENT NO. 923 (29 JULY 1999): MOORE V. THE SECRETARYGENERAL OF THE UNITED NATIONS4

      Separation from service—Material misstatement of fact on P. 11 form—Staff

      regulation 9.1—Issue of a special advisory board to review termination decision— Question of improper motive or prejudice—Effect of additional information requested from staff member for deficient P. 11 form—Issue of proper recruitment process

      338

      The Applicant entered the service of the United Nations on 15 January 1995, on a two-year intermediate-term appointment under the 200 Series of the United Nations Staff Rules, as Director, United Nations International Drug Control Programme (UNDCP) country office, Myanmar, at the L-5 level. He was separated from service on 16 June 1995, on the ground that he had misrepresented himself during the recruitment process.

      During the recruitment process, on 23 August 1994, the Applicant had submitted a P. 11 form, certifying that his statements therein were true, complete and correct to the best of his knowledge and belief, and that he understood that any misrepresentation or any material omission made on the P. 11 form or other document requested by the United Nations rendered a staff member of the Organization liable to termination or dismissal.

      In the box provided to give reasons for leaving the services of his prior employer, the World Health Organization (WHO), where he had worked from April 1984 to November 1992, he wrote "Develop own consultancy practice". However, a reference check revealed that the Applicant's appointment had not been extended at WHO and that the Applicant had filed an appeal over the matter. The UNDCP offer was withdrawn, but subsequently reinstated after an explanation was given by the Applicant, in a letter dated 27 November 1994.

      On 1 February 1995, the International Labour Organization Administrative Tribunal (ILOAT) rendered a judgement in the Applicant's case, finding in favour of WHO, holding, among other things, that even if the more serious charges against the Applicant had been based on hearsay, WHO had acted within its discretion in not renewing the Applicant's contract. ILOAT noted that the Applicant had been criticized in his annual performance reports, had more than once failed to follow the WHO rules, and had made public statements at odds with WHO policy.

      On 12 May 1995, the Personnel Officer informed the Applicant that he was separated from service with immediate effect on the ground that the ILOAT judgement had revealed that "the real reason you left WHO was the non-renewal of your fixed-term appointment due to your performance record and WHO's assessment on various grounds that you were unfit for international service". He also stated that "according to the judgement you were aware of these facts at the time of your separation from WHO". He further noted that had the Applicant completed the P.I 1 form correctly so that the circumstances surrounding his separation from WHO had been known to the United Nations Office at Vienna (UNOV), the Applicant would not have been recruited. Finally, he explained that the Applicant's non-disclosure of those circumstances vitiated his employment contract and that, as a result, a valid contract had never come into being. On 19 May 1995, however, the Applicant was informed by Personnel Service, UNOV, that he would be placed on special leave with full pay with effect from 13 May 1995 until his departure from Myanmar on 16 June 1995. The Applicant appealed his separation.

      The Tribunal was satisfied that the Applicant's statement on his P. 11 form that he had left WHO to develop his own consultancy practice was disingenuous and grossly misleading and that it constituted a material misstatement of fact. The Tribunal also was satisfied that the Applicant's excuse that the P.I 1 form had not requested or allowed for the elaboration for leaving the WHO employment was without merit. The Tribunal was further satisfied that the Applicant's November letter of explanation to the Senior Personnel Officer, UNOV, was likewise disingenuous and lacking in candour. It had failed to set out the allegations that had been

      made against him and that were the subject matter of his...

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