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

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

1. Decisions of the United Nations Administrative Tribunal2

   1. JUDGEMENT NO. 814 (25 JULY 1997): MONTELEONE-GILFILLIAN V. THE

      SECRETARY-GENERAL OF THE UNITED NATIONS3

      Non-promotion to P-3—Absence of an updated performance evaluation re-port was a violation of due process—Duty of Respondent to act with reasonable promptness to the Panel on Discrimination reports—Question of discrimination —Importance of fair treatment of staff members

      On 1 September 1984, the Applicant was assigned to the Kingston Office of the Special Representative of the Secretary-General for the Law of the Sea, as an Administrative Officer on a special post allowance (SPA) to the P-2 level. On 1 June 1988, she was promoted from the General Service category to the Professional category at the P-2 level, with retroactive effect to 1 April 1979. The Appli-cant's performance during the periods 1 January to 31 December 1986 and 1 January to 31 December 1987 was rated as "excellent". Subsequent to her promotion she took the necessary steps for the reclassification of her post to the P-3 level, in the belief that her department, the Office for Ocean Affairs and the Law of the Sea, had supported this reclassification. However, her department did not act upon the request for reclassification.

      The Applicant appealed an administrative decision by the Secretary-General, upon the recommendation of the Appointment and Promotion Committee, not to include her name in the 1992 P-3 Promotion Register. The Applicant claimed that the promotion review process had been tainted by procedural irregularities and lack of due process. She asserted that the denial of her request for promotion was the culmination of a long pattern of discrimination based on her status as a female staff member, who was not a lawyer, in a small, local legal office, and the animosity against her resulting from an earlier dispute with the Respondent with regard to her initial promotion to the P-2 level.

      In support of her claim, the Applicant cited the Respondent's failure to conduct performance evaluations in accordance with established procedures. She had not received a performance evaluation report (PER) between 1988 and 1995, and prior to 1988, she had consistently received PER ratings of "excellent" and "very good". At the time of her request for promotion review in 1993 there was a four-year gap in her performance record due to the Respondent's failure to follow his own performance review procedures.

      The Joint Appeals Board (JAB) found, and the Tribunal concurred, that the absence of a current PER "was of critical importance" in the context of a promotion review and that the "long delay in providing the staff member with her PER

      was a violation of the rules". The Tribunal also agreed with the JAB conclusion that the absence of an updated PER was a violation of due process. The Tribunal had previously concluded that when a denial of promotion was based on incomplete and inaccurate information, "the Applicant's right to full and fair consideration for promotion [was] not adequately respected". (Cf. Judgements No. 592, Sue-Ting-Len (1993), and No. 586, Atefat (1992).)

      The Tribunal further noted that the Panel on Discrimination and Other Grievances (the Panel on Discrimination) had recommended to the Respon-dent, in August 1993, that he update her performance records. The Respondent had failed to provide an updated performance report until August 1995, almost two years after the Panel's recommendation and more than six years after her last PER. The Tribunal found that this delay constituted a serious violation of due process. The Tribunal had previously held that:

      "[i]f the Panel on Discrimination is to continue to serve the valuable pur-poses for which it was established and to carry out its mission effectively, it is essential... that the Respondent react with reasonable promptness to the Panel on Discrimination reports regardless of whether it agrees or dis-agrees with them." (See Judgement No. 507, Fayache ( 1991 ), para. XVII.) In this instance, the Tribunal noted that the Respondent's delay of one year in responding to the Panel's report and his further 12-month delay in meeting the Panel's recommendation had the effect of undermining the Panel's work and purpose. It also unnecessarily jeopardized the Applicant's chances of receiving a promotion.

      The Tribunal next examined the Applicant's claim that she had been the victim of a long-standing pattern of discriminatory and prejudicial treatment. While the decision of the Compensation and Classification Service denying the Applicant reclassification to the P-3 level was not itself before the Tribunal, the process leading up to that decision was probative of the Applicant's discrimination claim. The Tribunal noted that the Applicant's attempt, since 1988, to receive adequate redress for her request for reclassification to the P-3 level had been rebuffed by refusal and inaction. Her initial submission in 1988 of a new job description at the request of her supervisors had never been acted upon, thereby denying her an opportunity for review of the reclassification of her post. In 1992, the Applicant again attempted to obtain such a review once the Office for Ocean Affairs and the Law of the Sea had been transferred to the Office of Legal Affairs. The Office of Legal Affairs refused to complete the form, again denying the Applicant a formal review of her request. Under pressure from the Applicant, the Office sought, instead, an informal review of the request. Ultimately, the Compensation and Classification Service denied the Applicant's request for reclassification. When the Applicant appealed this denial to the Classification Appeals and Review Committee, she received no response. Her appeal was never heard.

      The Tribunal found that the delay and inaction were inappropriate and had contributed to the Applicant's belief that she was being discriminated against because of her status as a female who was not a lawyer. It also contributed to the impression that the Respondent was retaliating against her for her earlier dispute over her promotion to the P-2 level. In the view of the Tribunal, all staff members were entitled to be dealt with in good faith and in a manner that was fair. Moreover, the Tribunal noted that failure to abide by established procedures gave rise to dissatisfaction and low morale and threatened the in-365

      tegrity of the entire Organization. It also led to unnecessary and costly litigation. The Tribunal concluded that the Applicant's request for reclassification had not been dealt with efficiently, promptly or in good faith.

      However, despite the Tribunal's finding that the Respondent's conduct in the present case was egregious, it agreed with the JAB that there was no evidence of a pattern of discrimination. In August 1993, the Panel on Discrimination had described the Respondent's treatment of the Applicant as "benign neglect". Two years later, the JAB concluded that there was no convincing evidence of discrimi-nation. In the Tribunal's view, nothing had changed to modify that conclusion. The Tribunal had noted in a previous case that:

      "... There is a vast difference between cases of [discrimination] and cases in which supervisors simply do not share a staff member's evaluation of his own qualifications, performance or merit, or in which there is disharmony between supervisors and a staff member for a variety of reasons having nothing at all to do with unlawful discriminatory attitudes". (Cf. Judgement No. 507, Fayache (1991), para. XVIII.)

      The Tribunal considered that, in the present case, the Respondent should have dealt with the Applicant's request for reclassification more effectively. However, it did not find that the underlying motivation for the Respondent's conduct was discrimination on the basis of gender or retaliation.

      Based on the foregoing, the Tribunal concluded that the Applicant was entitled to compensation for the violations of due process, but not for discriminatory treatment. The Respondent's failure to update the Applicant's performance record until 1995 and the unreasonable delay in responding to the Panel on Discrimination's report had jeopardized the Applicant's career advancement and violated her right to full and fair consideration for promotion.

      For the above reasons, the Tribunal ordered the Respondent to pay to the Applicant nine months of her net base salary at the rate in effect on the date of the communication of this judgement. The Tribunal also affirmed the JAB's recommendation that the Applicant should receive full and fair consideration for all vacancies for which she applied and for which she was qualified.

   2. JUDGEMENT NO. 841 (1 AUGUST 1997): GUEST AND SLATFORD V. THE

      SECRETARY-GENERAL OF THE UNITED NATIONS"

      Termination due to abolition of posts—Question of a promise creating a legal obligation—Did the Organization use its best efforts to reassign staff members?—Question of the staff members ' acting in reliance upon a promise—Issue of the Organization discharging its obligation

      Both Applicants had served at the G-6 level in the World Food Council secretariat in Rome when their posts were abolished as a result of restructuring. Applicant Guest was offered another post with the United Nations Compensation Commission in Geneva but she rejected the offer, indicating that "she would accept nothing less than a permanent appointment at her current grade/step and non-local status". Such an offer was not forthcoming, and she was ultimately terminated. Applicant Slatford was offered another post in the Department for Policy Coordination and Sustainable Development in New York. She rejected the offer and was terminated. The Applicants appealed, claiming that the Secretary-General, on 11 September 1992, had promised that those staff members in the lowerechelon positions, such as...