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

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DECISIONS OF ADMINISTRATIVE TRIBUNALS OF THE

UNITED NATIONS AND RELATED INTERGOVERNMENTAL ORGANIZATIONS

1. Decisions of the Administrative Tribunal of the United Nations2

   1. JUDGEMENT NO. 551 (18 JUNE 1W2): MOHAPI V. THE SECRETARY-GENERAL

      OF THE UNITED NATIONS3

      Applicant challenges disciplinary penalties—Tribunal's competence to re-view disciplinary cases —Concept of due process in disciplinary matters — Decisions regarding the financial discrepancies were void ab initio as a result of a flawed disciplinary process

      The Applicant, a staff member of UNDP, challenged the decision of the Secretary-General to demote her from the G-5, step IX level, to the G-4, step I level, and recover certain monies from her, as disciplinary measures under staff rules 110.3(/>)and 112.3.

      Following an investigation, on 24 August 1987, the Resident Representative wrote a letter to Headquarters endorsing the recommendation of the Resident Representative ad interim that the Applicant's permanent appointment be terminated since she was responsible for the disappearance of missing funds and was unable to account for them. He also alleged that the Applicant "was offering personal loans from the cash box to those who wanted", and he also attached a copy of a note from the senior Finance Assistant, which was critical of the Applicant's performance. The Applicant was not shown those communications. Subsequently, the case was examined by the UNDP/UNFPA Disciplinary Committee, which found, inter alia, that she was guilty of gross negligence and not fraud. The Applicant was demoted and reassigned to duties outside the Finance Section, and approximately US$ 170 was recovered from her. The Applicant appealed to the Joint Appeals Board, which recommended that she be reimbursed the contested amount of money and that the decision to demote her to a post at a lower grade be rescinded, but the Secretary-General decided to maintain the decisions.

      In consideration of the case, the Tribunal recalled its Judgement No. 300, Sheye (1982), in which the Tribunal established its competence to review disciplinary matters "only in certain exceptional conditions, e.g., in case of" failure to accord due process to the affected staff member before reaching a decision". Furthermore, the Tribunal stated that:

      [t]he concept of due process, in disciplinary matters, includes compliance with important procedural rules established for the protection of staff members.

      The Tribunal noted that section 20902 of the UNDP Personnel Manual set out the procedures to be followed in disciplinary cases involving locally recruited staff, when misconduct was attributed to such a staff member.

      The Tribunal, however, found that the Applicant's case had been considered by the Respondent without all those requirements having been fully complied with. She was not informed of her right to counsel and was simply made aware that financial discrepancies arising out of the performance of her duties were being investigated. It was the view of the Tribunal that the Respondent's failure to comply with the UNDP Personnel Manual was sufficient to vitiate the Secretary-General's consequential decision to impose a disciplinary penalty.

      Moreover, the confidential note of 24 August 1987, containing comments adverse to the Applicant, forwarded by the Resident Representative to the Director of Personnel without having been shown to the Applicant, was in violation of administrative instruction ST/AI/292. In this connection, the Tribunal also observed that the note contained new allegations against the Applicant and was put before the Disciplinary Committee when it considered her case. The Tribunal considered that the failure to adhere to the provisions of the above-mentioned administrative instruction was highly prejudicial to the Applicant, bearing in mind that she had worked in the UNDP Office for 12 years without any accusations of misconduct previously having been made against her.

      The Tribunal, therefore, concluded that the demotion of the Applicant must be regarded as having been void ab inilio. Similarly, the decision to recover from the Applicant US$170, the loss of which allegedly was the consequence of the Applicant's failure to comply with the applicable financial rules, must also be regarded as having been void ab inilio since this aspect of the decision was also a result of the flawed disciplinary process.

      The Applicant's pica for relief because of the delay in the disposal of her case was not, in the Tribunal's opinion, justified by the fact that the need for a substantial investigation required time and the Applicant was being paid her salary during that period.

   2. JUDGEMENT NO. 555 (26 JUNE 1992): SELAMAWIT MAKONNEN V. THE

      SECRETARY-GENERAL OF THE UNITED NATIONS4

      Abandonment of post—Basis for termination from service for abandonment of post—Special leave without pay for medical reasons is not a right but within the discretionary authority of the Secretary-General—Special circumstances of case

      The Applicant had served with the Economic Commission for Africa (ECA) since 1961, reaching the level of G-7, when in May 1987 the United Nations Medical Director, upon the recommendation of the ECA Chief Medical Officer, authorized medical evacuation to Nairobi for 15 days so she could undergo a series of medical tests. On 24 August 1987, however, the Applicant left Addis Ababa for the United States for medical treatment, paying the difference in air fare herself. On 18 September 1987, the Applicant reported to the United Nations Medical Director at New York. Subsequently, sick leave was approved through 4 November 1987. Her request for a further extension was denied but ECA, for humanitarian reasons, agreed to extend the Applicant's annual leave from 5 November to 28 December 1987, with a new deadline of 20 January 1988 set for her to report to work. The Applicant did not report for work and she was terminated for abandonment of post, effective 28 December 1987.

      The Tribunal, noting that termination for abandonment of post was not explicitly provided for in the Staff Rules, recalled the language in annex III, paragraph ( Dupuy (1973), in which it was stated:

      "The prohibition against paying termination indemnity to a staff member who abandons his post would be meaningless if abandonment of post was not a distinct and independent reason for termination."

      Furthermore, in its Judgement No. 380, Alum (1987), the Tribunal considered that abandonment of post derived from the staff member's conduct, regardless of his or her expressed or unexpressed intent, and held that abandonment of post was therefore an objective notion. The Tribunal stated that several refusals to return to work despite orders by the Administration to do so constituted abandonment of post justifying termination. In its Judgement No. 265, Kennedy (1980), the Tribunal held that, after having instructed the Applicant to return to work by a certain date, the Secretary-General could decide to consider the Applicant's failure to do so as a repudiation of contract. In the present case, the Applicant had been granted annual leave, retroactively, and sick leave to cover her absence from her duty station, and when further sick leave was not granted, as from 28 December 1987, her absence was unauthorized. It was also part of the record that the Applicant did not return to Addis Ababa, even after several postponements of the date she was to return and despite warnings that her continued absence would lead to her termination on the ground of abandonment of post.

      In view of the foregoing, the Tribunal held that the unauthorized absence of the Applicant after numerous warnings constituted a unilateral breach of the employment contract and abandonment of post justifying termination.

      The Applicant had requested special leave without pay, but no such leave was granted. The Tribunal recalled its jurisprudence in the area wherein it was established that special leave without pay for medical reasons was not a right of the staff member, but was within the discretionary authority of the Secretary-General, and found that in the circumstances of the case refusal to grant the Applicant leave was not prompted by discriminatory motives or based on considerations other than the requirements of service. However, the Tribunal did note that the decision not to grant her special leave without pay was regrettable, in view of her health and the fact that she had been employed by the Organization for 26 years, and that it appeared that the Applicant's request for such leave was based on the advice she had been given by the United Nations Medical Director at Headquarters.

      While rejecting the application, the Tribunal also expressed the hope that, in view of the circumstances, should the Applicant return to Addis Ababa and submit, within 45 days of notification to her of this judgement, an application for employment for a post for which she was fully qualified, the Administration would give it favourable consideration.

   3. JUDGEMENT NO. 558 (30 JUNE 1992): FARUQ V. THE SECRETARY-GENERAL

      OF THE UNITED NATIONS5

      Termination of services for misconduct—Secretary-General's competence in disciplinary matters—A staff member accused of misconduct should be ac-389

      corded due process—Special care should be taken to protect a staff member's rights in outlying places far from Headquarters —By virture of the staff member's position he had to be aware of the implications of taking bribes—Broad discretion of the Secretary-General in disciplinary matters

      The Applicant, who was serving as Senior Shipping Assistant at the GS-6 level with UNICEF at one of the field offices when he was separated from service for misconduct, complained that the procedures followed leading to the decision to dismiss him were flawed. The Applicant contended that the finding of the ad hoc Joint Disciplinary Committee (JDC) that it was "highly probable" that the Applicant had received bribes from...