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The Tribunal rejected the Respondent’s argument that this was a case of non-renewal and found that the Applicant’s fixed-term contract was terminated on the grounds of alleged unsatisfactory performance for the period of 2007 to 2010. The UNDT found that the performance evaluation report (“PER”) for 2010 cannot be lawfully relied upon to justify the finding of unsatisfactory performance as the Applicant had no opportunity of a meaningful rebuttal. Therefore, the termination of the Applicant’s contract on the basis of poor performance was unlawful. The UNDT also found that no proper...

As regards her e-Pas reports, the Tribunal found that the ratings resulting from the rebuttal processes had replaced the initial ratings and that hence the e-Pas reports cannot be annulled. Concerning the inclusion in the OSF of documents arising from the rebuttal processes relating to her e-Pas reports, the Tribunal found that only the documents specified in ST/AI/2002/3 and ST/AI/2010/5 are to be included in her OSF. It also found that the irregularities in relation to her e-Pas reports were of such gravity as to render them meaningless and that they are thus not be included in her OSF. The...

. The Applicant claimed that the reason for the contested decision was not disclosed to her until the management evaluation stage and that the reason given was not supported legally or factually. The UNDT found that UNICEF was obliged to provide the Applicant with a reason for the non-renewal of her contract when she requested it. The UNDT found that according to the performance ratings provided prior to the non-renewal of the Applicant’s contract, her performance, as a matter of law, cannot be regarded as unsatisfactory based on secs. 5.2 and 10.2 of CF/AI/2010-001 (Administrative instruction...

Receivability: The Tribunal held that the Applicants had standing pursuant to art. 2.1 of its Statute and found the applications receivable. Merits: Was the restructuring genuine? The Tribunal found that, although the retrenchment exercise resulted in the non-renewal of the Applicants’ appointments, the motivation for it was genuine as it implemented General Assembly resolution 66/264. Was the restructuring implemented through a fair and lawful process? Consultations: The Tribunal found that the Administration did not consult the staff or staff representatives about the posts to be abolished...

The UNDT found that the Respondent’s argument that no promise had been made was untenable. The evidence clearly indicated that UNOPS Managers knew the Applicant would rely on the statements they made to her in regards to a one year contract extension. The Respondent repeatedly disregarded its own rules and regulations in the course of completing the Applicant’s performance appraisal and subsequently conducted a flawed rebuttal process which was biased and unfair and violated the Applicant’s due process rights. Promises made created expectancy of renewal - It is untenable for the Administration...

The Tribunal found that the Administration violated the rights of the Applicant by not including the PAD cycle year 2009 when making the termination decision in July 2010. The Tribunal ordered the rescission of the contested decision and compensation for material damage equivalent to the loss of salary until her early retirement date on 1 May 2011. When terminating a contract for unsatisfactory service, the PAD reports to be taken into consideration must be the ones immediately preceding the non-renewal decision, so the PAD cycle years 2007, 2008, and 2009 for a termination decision made in...

The decision not to renew his contract was not an administrative decision “stem[ming] from [this] performance appraisal”. The Tribunal holds that the Applicant had no right of appeal against the 2011-2012 e-PAS. That claim is therefore not receivable. Finally, in his claim relating to this performance evaluation the Applicant also challenges the MEU decision that the issue of the Second Reporting Officer’s comments in the Applicant’s e-PAS was time barred. This part of his claim is not receivable as MEU decisions are not reviewable by this Tribunal.It is not within the powers of the Tribunal...

The Tribunal concluded that the contested decision was unlawful in light of extraneous factors and the Respondent’s failure to adhere to the rules on performance.

Performance appraisal: The Tribunal noted that even before the Applicant’s individual performance work plan had been approved by his first reporting officer; his second reporting officer was making efforts to terminate his contract. The Tribunal held that it was unreasonable and inappropriate for the Applicant’s performance to be measured against outputs and performance indicators that had neither been defined nor approved by his...

The UNDT noted that in her 2011 and 2012 ePAD (performance document), the Applicant had received positive ratings, and that the 2013 ePAD was never finalized. The applicable performance management system (PAMS) requires the finalization of the ePAD in case of non-renewal of appointment for reasons related to performance. Accordingly, since UNHCR had failed to follow its rules with respect to performance evaluation and performance management, including mediation protocols, and, furthermore, the “alternative” process followed by UNHCR did not provide an equivalent standard of safeguards...

Was the decision based on properly promulgated legal instruments or other issuances?

The primary and binding legal instrument is ST/SGB/2009/10, to be read together with the Guidelines made thereunder. It is not for the decision-makers to operate outside the strict terms of the primary legal instrument by explicit or tacit agreement to adopt a rule of practice or procedure that is not in strict compliance with ST/SGB/2009/10 and its guidance. Above all, those making recommendations or decisions must be guided by the Organization’s policies as reflected in properly promulgated administrative...