UNDT/2024/111, Adundo
In the context of the present case, the Tribunal finds that the electronic UMOJA notifications regarding the Applicant’s time and attendance records, which were automatically sent to him on a monthly basis during the relevant four-year time period, were nothing but status updates on his leave records. None of the status updates therefore constituted separate and individual administrative decisions in accordance with art. 2.1(a) of the Dispute Tribunal’s Statute against which the Applicant must file a request for management evaluation in accordance staff rule 11.2.
Applying either evidentiary standard of the preponderance of the evidence or the presumption of regularity, in the absence of the Applicant providing any submissions and/or evidence to support his claim that the figures used by DSS were incorrect, the Tribunal finds that the Respondent has appropriately established that the information provided by the Respondent was an accurate record of the Applicant’s sick leave balance on full pay from his recruitment in 2011 and until the end of 2022.
The decision to place the applicant on sick leave with half-day pay combined with a half-day annual leave in order for him to remain at full pay until his entitlement to sick leave at full pay was revived.
It is “the well-established jurisprudence†of the Appeals Tribunal that “the burden of proving any allegations of ill-motivation rests with the applicant†(see, para. 38 of Kisia 2020-UNAT-1049).
It is debatable under the jurisprudence of the Appeals Tribunal what the applicable evidentiary standard is for a decision such as the contested decision: whether it is the preponderance of the evidence or the presumption of regularity (see, for instance, Applicant 2022-UNAT-1187, paras. 60 to 66, as well as Toson 2022-UNAT-1249, para. 29, Noberasco 2020-UNAT-1063, para. 42, Ngokeng 2017-UNAT-747, para. 33, Soliman 2017-UNAT-788, para. 33, Nastase 2023-UNAT-136, para. 24, and Mirella 2023-UNAT-1334, para. 61—the case-law is not consistent in terms of whether the evidentiary standard of presumption of regularity is only applicable to primarily non-selection and non-renewal cases or also applies to other types of appealable decisions under art 2.1(a) of the Dispute Tribunal’s Statute).
The Tribunal notes that it follows from the consistent jurisprudence of the Appeals Tribunal that “when a justification is given by the Administration for the exercise of its discretion it must be supported by the facts†(see para. 29 of Islam 2011-UNAT-115 as, for instance, affirmed in Wathanafa 2023-UNAT-1389, para. 36). As follows from the Appeals Tribunal’s seminal judgment in Sanwidi 2010-UNAT-084, as part of the judicial review, the Tribunal can appraise “whether relevant matters have been ignored and irrelevant matters considered†and therefore also whether the facts underpinning the contested decision were correct (see para. 40).
Hearsay evidence is, in principle, admissible before the Dispute Tribunal but its “probative value depends largely on the credibility … of the person giving such evidence†(see, paras. 72 and 73 of Applicant 2022-UNAT-1187).