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The ±¬ÁÏÍøAT found no error in the ±¬ÁÏÍøDT¡¯s reliance on the communication between the staff member and her attorney when it established that she had submitted false information in her claims for reimbursement for medical expenses. The ±¬ÁÏÍøAT noted that her attorney had voluntarily submitted the privileged document as an attachment to her application. The ±¬ÁÏÍøAT observed that she had not imposed any limitations or reservations on the ±¬ÁÏÍøDT¡¯s use of the document and had referred to it on multiple occasions in the course of the proceedings. The ±¬ÁÏÍøAT agreed that she had waived her right to confidentiality...

Receivability

The Respondent challenged the receivability of the application.

The Tribunal noted that the application filed on 2 March 2022 via email was essentially the same as that filed on 16 April 2022 via the eFiling portal. Consequently, in line with Practice Direction No. 4, para. 11, the Tribunal found that the present application was receivable.

Merits

In the present case, this Tribunal examined the following issues:

a. Whether the facts on which the disciplinary measure was based have been established according to the applicable standard.

The Tribunal examined the evidence on...

±¬ÁÏÍøAT considered an appeal by the Secretary-General. Regarding the evidence on which the disciplinary measure was based, ±¬ÁÏÍøAT held that ±¬ÁÏÍøDT had failed to appreciate the fact that the women who had been sexually exploited or abused came from a highly sensitive cultural background and were socially vulnerable. ±¬ÁÏÍøAT held that ±¬ÁÏÍøDT failed to consider the fact that the staff member, as Officer-in-Charge of Security of MINURSO, had a particular duty of care towards women and children, pursuant to Section 7 of ST/SGB/1999/13. ±¬ÁÏÍøAT held that the established facts amounted to sexual exploitation. ±¬ÁÏÍøAT...

±¬ÁÏÍøAT considered the three appeals by the Secretary-General against the ±¬ÁÏÍøDT Orders. ±¬ÁÏÍøAT held that the appeals were receivable because: (1) ±¬ÁÏÍøDT exceeded its jurisdiction under Article 2. 2 of the ±¬ÁÏÍøDT Statute by ordering the suspension of the contested decision beyond the date of completion of management evaluation; and (2) ±¬ÁÏÍøDT exceeded its jurisdiction under Article 10. 2 of the ±¬ÁÏÍøDT Statute by ordering, during the proceedings, a suspension of the contested decision as an interim measure in a case of appointment. ±¬ÁÏÍøAT held that Order No. 129 suspended the contested decision beyond...

±¬ÁÏÍøAT considered an application for revision of judgment. ±¬ÁÏÍøAT held that the alleged error in the factual findings of ±¬ÁÏÍøDT did not constitute circumstances that warranted revision, because none of them would result in the exclusion of the main reasons stated by ±¬ÁÏÍøAT in vacating the ±¬ÁÏÍøDT judgment and affirming Mr Massah¡¯s separation from service for serious misconduct. ±¬ÁÏÍøAT held that the application was inadmissible since its goal was to litigate the case de novo as a result of counsel not agreeing with the final judgment, an option which was not provided to the parties by the applicable law...

±¬ÁÏÍøAT considered an appeal by the Secretary-General. ±¬ÁÏÍøAT held that ±¬ÁÏÍøDT had erred in deciding that the non-renewal of the staff member¡¯s contract was unlawful. ±¬ÁÏÍøAT held that the staff member was aware that a high school diploma was an essential qualification. ±¬ÁÏÍøAT held that his contract was conditional upon him producing proof of this qualification. ±¬ÁÏÍøAT noted that the staff member was also aware that the consequence of failing to satisfy this requirement was the non-renewal of his contract. ±¬ÁÏÍøAT agreed with the Secretary-General¡¯s submission that the decision not to renew was neither...

The Tribunal did not find any evidence of sexual exploitation and abuse as defined by the SGB. The Tribunal considered the definition of pornography and on viewing the images concluded that they were obscene, hardcore pornography. In view of the Applicant¡¯s admissions and the quantity of materials on his official computer, the misconduct charge in that respect was well founded. The Applicant¡¯s submission that the evidence was fruit of the poison tree and therefore inadmissible was rejected on the basis that the illegally obtained evidence (a CD) merely triggered the investigation but did not...

On 19 October 2011, the Tribunal issued Order No. 129 (NBI/2011) suspending the implementation of the contested decision until 10 November 2011 allowing the Tribunal to allow the filing of the Respondent¡¯s Reply, the hearing held on 3 November 2011 and the determination of the matter. The Applicant was communicated the response from MEU on 27 October 2011 as well as the Secretary-General¡¯s response. The Applicant filed his case on the merits, registered in the Dispute Tribunal¡¯s records as ±¬ÁÏÍøDT/NBI/2011/070 and simultaneously filed under article 14 of the Dispute Tribunal¡¯s Rules of Procedure...

The Respondent appeared to have a good reason for cancelling the Applicant¡¯s leave. That having been said, however, the manner in which the Applicant was informed of that decision could have been done in a much better way. Considering the fact that the Applicant¡¯s supervisor had only three days earlier, on 9 August 2011, approved his leave, his one-line directive cancelling the Applicant¡¯s leave was not only callous and dismissive but most insensitive. This managerial shortcoming does not, by itself, render the decision prima facie unlawful.Although some harm is caused to the Applicant in...

Staff rule 12/3(b) ¨C exception to staff rules: The Tribunal held that under the unique circumstances of this case, that is, the requests from MINURSO recognizing the Applicant¡¯s suitability for the post and the Mission¡¯s dire operational needs, for the Respondent to have properly complied with staff rule 12.3(b), the Applicant¡¯s existing educational qualifications along with his professional qualifications and language skills should have been considered regardless of whether or not they were equivalent to a high school diploma.