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

Chapter V

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. 376 (6 NOVEMBER 1986): SHATBY V. THE SECRETARY-GENERAL OF THE UNITED NATIONS3

      Applicant contended that the Respondent had incorrectly appointed him— Tribunal's Judgements Nos. 95 and 142 concerning the establishment of the terms and conditions of employment—The Administration responsible for the ambiguity that surrounded the conditions of the Applicant's work

      The Applicant entered the service of UNICEF in January 1979. He was initially offered a project personnel appointment under the 200 series of the Staff Regulations and Rules for a fixed-term period of two years and assigned to Yemen as a Project Officer. It appeared from the record of the case that after his recruitment the Applicant had not properly understood the nature of his assignment and had sought guidance in that regard. In December 1980, UNICEF agreed to extend the Applicant's appointment "with the understanding that the job description would have to be revised to show clearly [the Applicant's] role in the implementation of UNICEF's water project in Yemen" for a further period of two years. When his fixed-term appointment was not renewed upon its expiration on 31 January 1983 the Applicant filed an application with the Tribunal contending that the Respondent had incorrectly appointed him, not respected his terms of appointment, not clearly described the duties and responsibilities in his job description, intentionally ruined his career and arbitrarily terminated his appointment.

      The Tribunal noted that as a result of the way in which the Applicant's appointment had been processed, a situation of ambiguity had arisen, and therefore the Applicant had been placed in a position in which it became difficult to define exactly where the limits of his duties lay. The Administration had hired the Applicant under a job description that clearly fell short of what UNICEF had offered to the Government. The Tribunal held that not only did the task to be fulfilled by the Applicant appear to be much broader, but even the nature of the Applicant's status would differ substantially.

      The Tribunal recalled that in its Judgement No. 142, Bhattacharyya (1971), and No. 95, Sikand (1965), it held that "the Tribunal in its jurisprudence has established that the terms and conditions of employment of a staff member with the United Nations may be expressed or implied and may be gathered from correspondence and surrounding facts and circumstances."

      In the present case, and in view of the subsequent difficulties encountered by the Applicant, the Tribunal held that the letter of appointment signed by the Applicant could not be considered without taking into consideration that the Administration had earlier referred to the future tasks to be entrusted to the Applicant as something much broader and not altogether of the same nature as those set forth in the job description. As a result of that uncertain and not clearly defined situation, the Applicant could, on the one hand, be considered as a staff member implementing or designing a specific project or set of projects or, on the other hand, as an advisor working with the Government of Yemen, in accordance with a bilateral agreement.

      That situation also had a bearing on the non-renewal of the Applicant's appointment since in recommending the non-renewal of the Applicant's appointment, his supervisor had based himself on one interpretation of the nature of the Applicant's duties, and for this the Applicant could not be held responsible.

      Therefore, the Tribunal was of the opinion that the ambiguity that surrounded the conditions of the Applicant's work had a considerable prejudicial impact, not only during his period of service, but also when the renewal of his contract had been considered, and the Administration should be held responsible for it.

      For the above reasons, the Tribunal concluded that the Applicant was entitled to compensation in the amount of three months' net base salary at the date of the expiration of his appointment. All the other Applicant's pleas were rejected.

   2. JUDGEMENT NO. 377 (7 NOVEMBER 1986): JABRI V. THE SECRETARY-GENERAL OF THE UNITED NATIONS4

      The Applicant charged with allowing himself to become an instrument of unauthorized communication between a delegation and the Secretariat and of lobbying in favour of the delegation's proposal—The basic obligations of staff members of the United Nations as set forth in Article 100, paragraph 1, of the Charter of the United Nations—A written censure as a disciplinary measure imposed on the Applicant under staff regulation 10.2 and staff rule 110.3 (b)for his actions considered as injudicious and not in keeping with the standard of conduct expected of a United Nations staff member as set forth in Article 100, paragraph 1, of the Charter—The Secretary-General's discretionary power not to accept that part of the Joint Disciplinary Committee's recommendation that the disciplinary measures should be struck from the Applicant's file after a probationary period of six months of satisfactory service—Advisory character of the Joint Disciplinary Committee and the Joint Appeals Board reports— Tribunal's Judgement No. 210, Reid (1976)

      The Applicant entered the service of the United Nations in 1969. Since 1976, at the P-4 level, he had exercised the functions of Chief, Arabic and Middle East Unit, Radio and Visual Services Division, Department of Public Information.

      On 1 July 1983, the Applicant was informed that the Secretary-General had imposed on him a written censure as a disciplinary measure under staff regula-257

      tion 10.2 and staff rule 110.3(¿>). The decision was based on the Secretary-General's finding that, by distributing among his colleagues an unofficial preliminary version of a governmental proposal (the so-called "Yemen plan"), omitting to mention its provenance and without prior knowledge or authorization of his superiors, the Applicant had allowed himself to become an instrument of unauthorized communication between a delegation and the Secretariat which he had sufficient grounds to believe might materially differ from the Secretary-General's proposal and had failed to subject his personal preferences, opinions and beliefs to the interests of the Secretariat spelt out by the Secretary-General, as required by staff regulations 1.1, 1.3 and 1.4.

      On 29 November 1985, the Applicant filed an application in which he requested the Tribunal to rescind the written censure imposed by the Secretary-General on him and to order the payment of damages for the mistreatment which he had received as a result of the misapplication of justice and of the rules and regulations which had caused irreparable damage to his career, permanent impairment of his health and untold misery to his family as well as immeasurable and significant loss in salary and emoluments, all due to the breach and violations of his rights of employment. The Applicant maintained that the decision of the Secretary-General to censure him had been flawed and unfair because it had not been accurately based on all the relevant facts.

      The Tribunal considered that the facts which prompted the disciplinary sanction had been established with the greatest care by the Panel of Investigation and the Joint Disciplinary Committee and in addition had been acknowledged by the Applicant.

      The Tribunal noted that the Applicant had in fact distributed to his col-leagues the preliminary version of the "Yemen plan", and that he had compared it with the drafts prepared within the Department and commented favourably upon it. The Applicant acknowledged those facts in his letter of 7 July 1982 and in his testimony before the Panel of Investigation. However, he admitted only indirectly having suggested lobbying with the missions represented in the Committee on Information. The Tribunal noted further that the facts on which the Secretary-General had based his 1 July 1983 authorization of the disciplinary measure of written censure against the Applicant had not differed appreciably from those established by the Panel of Investigation, the Joint Disciplinary Committee and, following the decision of the Secretary-General, by the Joint Appeals Board, or from those acknowledged by the Applicant. They involved the Applicant's distribution of a preliminary version of the "Yemen plan" to his colleagues without indicating its origin and without requesting the permission of his supervisors, and his promotion of a government draft that included criticisms of the report commissioned by the Organization, and had been likely to conflict with the proposals of the Secretary-General. Having recalled the basic obligations of staff members of the United Nations as set forth in Article 100, paragraph 1, of the Charter, the Tribunal determined that all those facts revealed "unsatisfactory conduct" on the part of the Applicant and permitted the Secretary-General to apply the disciplinary measures prescribed in staff regulation

      10.2 and staff rule 110.3. Moreover, the Tribunal considered that the measure authorized, the least serious of those provided for by staff rule 110.3(¿>), as recommended by the Joint Disciplinary Committee, had been in no way arbitrary in character. The Tribunal noted that the Secretary-General had not seen...