IN THE COURTS

As a member of the Office of Staff Legal Assistance, I have been asked to write, as part of a new monthly column, about how the new United Nations Dispute Tribunal (UNDT), through significant case law, has impacted the working conditions of staff since its work commenced 1 July 2009. I will endeavour to highlight the most important judgments in relation to some of the key issues to have been considered by the Tribunal.

MARCUS JOYCE, OFFICE OF STAFF LEGAL ASSISTANCE (OSLA), IN CONSULTATION WITH OSLA NEW YORK

Expectancy of renewal of contract
Fixed-term contracts currently state that they do not carry any expectancy, legal or otherwise, of renewal. However, in Kasmani (UNDT/2009/36), in the context of a judgment on Suspension of Action (injunctive relief to prevent a contested administrative decision being implemented), the Tribunal qualified this rule. In ruling in favour of Suspension of Action, the Tribunal concluded that damages could not adequately compensate a staff member for the damage to reputation occasioned by UNnon-renewal in circumstances where there is work to be done. Therefore, it is expected that a contract be renewed in the case that the staff member has performed well and there is money available to fund the renewal of contract.

The right to reasons
The law prior to the commencement of the UNDT was that no duty existed on behalf of the Administration to provide reasons for their administrative decisions. However, where reasons were provided, they had to be supported by the available evidence. This created arguably an incentive for no reasons to be provided at all. This inequity has been reversed by Judge Adams in Beaudry (UNDT/2010/39) and there is now a duty to provide reasons for all administrative decisions. Judge Adams’ justification for this much-needed change in the law was as follows: “where staff members ask to be informed as to the reasons for a decision affecting them, these must be provided in sufficient detail to enable a decision to be made as to whether to seek management evaluation (...). It is not for the Administration, by not providing reasons, to evade the internal system of justice. To act in this way would be to breach its contract with the staff member in question.”

The right to a preliminary investigation following complaint
Many staff members will be familiar with the case of Abboud (UNDT/2009/55) in which Judge Adams underlined the importance of conducting a preliminary investigation following a complaint by a staff member in accordance with s.2 ST/AI/371. However, perhaps the most important principle to emerge from this judgment is that all staff members, regardless of rank, are subject to the rule of law, as evidenced by Judge Adams’ referral of Mr. Shaaban to the Secretary-General under Article 10 of the Statutes for possible action to enforce accountability. It is therefore an important judgment not only in relation to the obligations of staff members, regardless of rank, towards their colleagues but also of all staff members’ duties to the Tribunal. Both Abboud and Beaudry are currently being appealed by the Administration to the Appeals Tribunal (UNAT). Therefore while both are valid law at present this could of course change depending on the outcome of the adjudications of the UNAT.

Prohibition of illegal breaks in contract
In Gomez (UNDT/2010/42), the staff member was subject to the practice of a separation in service just prior to the 12-month point in his contract when certain rights would have become effective due to continuity in service. The Tribunal found that the requirement of break in service existed in practice, despite no such policy being in existence, with the purpose of preventing staff members having access to contractual rights. Furthermore, the Tribunal concluded that this practice had been inconsistently and unlawfully applied in the Applicant’s case.

Future challenges:
There are many issues which still need to be resolved to provide greater certainty for staff members. One key area is that of disciplinary proceedings. The repeal of large parts of ST/AI/371 by ST/AI/2009/7 and ST/SGB/2009/11 has left those staff members facing disciplinary allegations in an uncertain position. In addition, while the correct burden and standard of proof has quite rightly been revisited in judgments including Masri (UNDT/2009/51), a uniform approach is yet to emerge on these important issues. It is anticipated that these, among other matters, will be resolved in due course by the UNAT.