Page 1 of 25 UNITED NATIONS DISPUTE TRIBUNAL Case No.: UNDT/NY/2016/046 Judgment No.: UNDT/2019/039 Date: 7 March 2019 Original: English Before: Judge Alexander W. Hunter, Jr. Registry: New York Registrar: Nerea Suero Fontecha SERA v. SECRETARY-GENERAL OF THE UNITED NATIONS JUDGMENT Counsel for Applicant: Duke Danquah, OSLA Counsel for Respondent: Alan M. Gutman, ALD/OHR, UN Secretariat
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N D T Judgment No.: UNDT/2019/039 NITED ATIONS ...Judgment No. UNDT/2019/039 Page 4 of 25 6. On 26 September 2016, the Applicant filed a motion to amend the application, and also submitted
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Page 1 of 25
UNITED NATIONS DISPUTE TRIBUNAL
Case No.: UNDT/NY/2016/046
Judgment No.: UNDT/2019/039
Date: 7 March 2019
Original: English
Before: Judge Alexander W. Hunter, Jr.
Registry: New York
Registrar: Nerea Suero Fontecha
SERA
v.
SECRETARY-GENERAL
OF THE UNITED NATIONS
JUDGMENT
Counsel for Applicant:
Duke Danquah, OSLA
Counsel for Respondent:
Alan M. Gutman, ALD/OHR, UN Secretariat
Case No. UNDT/NY/2016/046
Judgment No. UNDT/2019/039
Page 2 of 25
Introduction
1. The Applicant, a former Benefits Assistant at the G-4 level, step 4, with the
United Nations Joint Staff Pension Fund (“UNJSPF”), contests the decision not to
renew her temporary appointment beyond 12 June 2016, alleging that her negative
performance appraisal was incorrect as a matter of fact, that she did not receive
adequate guidance, feedback and training, and that the non-renewal was tainted by
ulterior motives. In response, the Respondent submits that the application is without
merit.
Facts
2. In the jointly-signed submission of 29 September 2017, the parties set out the
agreed facts as follows (footnotes omitted):
… On 15 June 2015, the Applicant was appointed on a temporary
appointment as a Benefits Assistant, at the GS-4 level, in the UNJSPF.
Her appointment was to expire on 12 June 2016.
… On 18 May 2016, [the First Reporting Officer (“FRO”) and the
Second Reporting Officer (“the SRO”)] informed the Applicant that
her appointment would not be renewed upon its expiration.
… The Applicant’s performance was rated as “does not meet
performance expectations” at the end of her temporary appointment.
… On 23 May 2016, the Applicant submitted a request for
management evaluation and an application for a Suspension of Action
with the Dispute Tribunal. She also filed a complaint of harassment
ST/SGB/2008/5 [Prohibition of discrimination, harassment, including
sexual harassment, and abuse of authority] against [the FRO] to the
Chief Executive Officer [“CEO”] of the UNJSPF.
… On 24 May 2016, UNJSPF indicated that it would extend the
Applicant’s appointment pending management evaluation. In light of
this, on 27 May 2016, the UNDT dismissed the [Suspension of
Action] application.
… On 17 June 2016, the CEO of the UNJSPF informed the
Applicant that there were insufficient grounds to warrant a fact-finding
investigation into her harassment complaint. The Applicant did not
Case No. UNDT/NY/2016/046
Judgment No. UNDT/2019/039
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request management evaluation of this decision within the statutory
time limits and the decision was therefore final.
… On 30 June 2016, the Applicant signed her performance
evaluation form. She did not submit a written explanatory statement,
in accordance with section 6.2 of ST/AI/2010/4/Rev.1, to express her
disagreement with her performance rating.
3. The Applicant further added a list of other facts, including by repeating some
of those already stated in the amended application. Among the listed facts, the
Applicant stated that (emphasis omitted):
... On 18 May 2016, the Applicant was called into an unscheduled
meeting with [the FRO and the SRO], in which she was informed (by
the SRO) of the non-renewal of her contract. Initially, [the SRO]
stated that “[she] had served [her] purpose” and “The Fund no longer
needs additional staff.” The Applicant replied that her assertion was
contrary to the severe backlog of work at the Pension Fund and asked
for further explanation of the decision. The Applicant was informed by
[the SRO] that there were two reasons for the decision taken by her
and [the FRO, namely that the Applicant was not renewed because (a)
her absenteeism from the job and (b) her work was inconsistent.]
... On 30 June 2016, the Applicant signed her performance
evaluation form. The Applicant submitted a written self-assessment
and work log in disagreement with the review, which was signed by
the first and second reporting officers. The signed performance
appraisal by the Applicant does not imply admission of agreement as
per ST/AI/2010/4/Rev.1.
Procedural history
4. On 22 September 2016, the Applicant filed the initial application contesting
her non-renewal.
5. On 23 September 2016, the Registry acknowledged receipt of the application
and transmitted it to the Respondent in accordance with art. 8.4 of the Rules of
Procedure of the Dispute Tribunal, instructing him to submit his reply within 30
calendar days, that is, no later than 24 October 2016, pursuant to art. 10 of the Rules
of Procedure.
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Judgment No. UNDT/2019/039
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6. On 26 September 2016, the Applicant filed a motion to amend the application,
and also submitted the amended application with annexes.
7. On 28 September 2016, the case was assigned to Judge Ebrahim-Carstens.
8. By Order No. 227 (NY/2016) dated 29 September 2016, the Tribunal granted
leave for the Applicant’s motion to amend the application and extended the time limit
for the Respondent to file the reply to 28 October 2016.
9. On 28 October 2016, the Respondent filed his reply, in which he claims that
the non-renewal of the Applicant’s temporary appointment was lawful and that the
application is therefore without merit.
10. By Order No. 178 (NY/2017) dated 30 August 2017, the Tribunal provided
the following orders, noting, inter alia, that it was not clear to what extent the parties
agreed or disagreed on certain facts set out in their respective submissions:
… By 5:00 p.m. on Friday, 29 September 2017, the parties are
to file a jointly signed statement providing, under separate headings,
the following information:
a. A consolidated list of agreed and contested facts in
chronological order, making clear reference to the relevant and
specific dates, manner of notification or transmittal of
information, and the documentary evidence, if any, relied upon
to support the agreed or contested fact (clearly referencing the
appropriate annex to the application or reply as, for example,
A/1 or R/1);
b. A list of any further documents which each of the
parties request to produce, or request the opposing party to
produce, and the relevance thereof;
c. Whether they request an oral hearing to address the
merits of the application and, if so:
i. A list of the witnesses that each party proposes
to call; and
ii. A brief summary of the issue(s) to be addressed
by each witness.
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Judgment No. UNDT/2019/039
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d. If the parties would be willing to enter into negotiations
on resolving the case amicably either through the assistance of
the Office of the Ombudsman and Mediation Services or inter
partes;
e. Where there is a disagreement over a fact or statement,
the joint statement shall identify the parties’ respective
positions thereon.
11. On 29 September 2017, the parties filed a jointly-signed submission in
response to Order No. 178 (NY/2017) in which they outlined a consolidated list of
agreed and contested facts and noted that there was “no scope for an informal
settlement in the present case”. The Respondent objected to a range of facts listed by
the Applicant, submitting, in essence, that, to the Respondent’s prejudice, the
Applicant had had “ample opportunity, in both the original application and the
amended application filed pursuant to Order No. 227 (NY/2016), to set out the facts
upon which she relied” and instead now sought “to introduce new facts and
arguments”. The Applicant provided a list of further documents which she wished to
rely on and appended these documents to the jointly-signed submission to which the
Respondent also objected as “their introduction at this late stage would cause
prejudice to the Respondent”. None of the parties wished an oral hearing to take
place.
12. On 1 January 2019, the present case was reassigned to the undersigned Judge.
13. By Order No. 5 (NY/2019) dated 8 January 2019, para. 9, the Tribunal made
the following observations:
9. Based on the parties’ submissions, the Tribunal observes that
the parties appear to agree that the Applicant’s temporary appointment
was not renewed due to alleged performance deficits. In light thereof,
on a preliminary basis and without prejudice to any subsequent
findings, the Tribunal identifies the issues of the case as follows:
a. Whether a supervisor is obliged to provide guidance
and feedback to a staff member on a temporary contract during
the course of the appointment and not simply at its expiry and,
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Judgment No. UNDT/2019/039
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in the affirmative, if the Applicant’s supervisor(s) did so in the
present case;
b. If the non-renewal of the Applicant was tainted by
ulterior motives.
The Tribunal then made the following orders, paras. 13-17:
… Upon the request of the parties, no oral hearing is to be held in
the present case which shall be determined on the papers before the
Tribunal;
… The Applicant’s request to file additional written
documentation, as appended to the jointly-signed submission of 29
September 2017, is granted;
… By 4:00 p.m. on Monday, 21 January 2019, the Applicant is
to file her closing submissions based solely on the documentation and
submissions already before the Tribunal. This statement is not to be
longer than five pages using Times New Roman, font size 12, with 1.5
line spacing;
… By 4:00 p.m. on Monday, 4 February 2019, the Respondent
is to file his closing submissions in response to the Applicant’s closing
submissions. This statement is not to be longer than five pages using
Times New Roman, font size 12, with 1.5 line spacing;
… By 4:00 p.m. on Friday, 8 February 2019, the Applicant is to
file her comments, if any, to the Respondent’s closing submission.
This statement is not to be longer than two pages using Times New
Roman, font size 12, with 1.5 line spacing.
14. The parties thereafter duly filed their closing statements as per Order No. 5
(NY/2019).
Consideration
Scope of the case
15. According to the Appeals Tribunal, the Dispute Tribunal has “the inherent
power to individualize and define the administrative decision challenged by a party
and to identify the subject(s) of judicial review. As such, the Dispute Tribunal may
consider the application as a whole, including the relief or remedies requested by the
Case No. UNDT/NY/2016/046
Judgment No. UNDT/2019/039
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staff member, in determining the contested or impugned decisions to be reviewed”
(see Fasanella 2017-UNAT-765, para. 20).
16. The Tribunal observes that the parties agree that the Applicant’s performance
was rated as “does not meet performance expectations” at the end of her temporary
appointment and that her FRO provided this as a main reason for not renewing this
appointment.
17. In their closing statements, neither party objected to the Tribunal’s
preliminary outline of the principal issues of the case as per Order No. 5 (NY/2019),
which was made without prejudice to any subsequent findings (see above). However,
in the Applicant’s closing statement, she “reaffirms that she does not agree that her
performance was deficient”. The Tribunal notes that, as part of the present case, the
Applicant has not appealed her performance appraisal and that it is therefore deemed
to be factual. In line herewith, it follows from the agreed facts that, on 30 June 2016,
the Applicant signed her performance evaluation form and that she did not submit a
written explanatory statement to express her disagreement with the performance
rating in accordance with sec. 6.2 of ST/AI/2010/4/Rev.1, although the Applicant
also contends that she “submitted a written self-assessment and work log in
disagreement with the review”. Nevertheless, it is trite law that a reason provided for
a non-renewal decision must, like any other administrative decision, be supported by
relevant and reliable facts (see, for instance, the Appeals Tribunal in Islam
2011-UNAT-115, paras. 29-32). As both parties have made submissions on this
matter in their closing statements, the Tribunal will therefore review this question as a
separate issue. Also, as both parties made submissions on whether the Applicant was
properly trained for undertaking her tasks, this will also be assessed.
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Judgment No. UNDT/2019/039
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18. Accordingly, the Tribunal defines the principal issues of the present case as
follows:
a. Was the reason for the non-renewal of the Applicant’s temporary
appointment appropriately based on relevant and reliable facts with regard to
her alleged performance shortcomings?
b. Is a supervisor obliged to provide guidance, feedback and training to a
staff member on a temporary contract during the course of the appointment
and, in the affirmative, if the Applicant’s supervisor(s) did so in the present
case?
c. Was the non-renewal of the Applicant tainted by ulterior motives?
The judicial review and burden of proof
19. From the onset, the Tribunal notes that its judicial review is limited as the
Dispute Tribunal is not to replace the decision-maker by assessing the correctness of
the contested decision but, depending on the parties’ claims, rather to assess (a) the
legality of the decision, (b) the appropriateness on how it was reached, and/or (c)
whether the Administration acted properly within its discretionary powers. As stated