Tuesday, November 9, 2010

UNAT Judgement No. 1485: UNDP Kenya Case

The Applicant joined the United Nations Development Programme (“UNDP”) Office at Nairobi, Kenya, on 9 December 1986, as a secretary at the GS-6 level, on a three-month fixed-term appointment. Her appointment was extended several times, on a short-term basis. On 1 May 1991, the Applicant was granted a permanent appointment. Effective January 1992, the Applicant was promoted to the post of Junior Administrative Assistant, and effective July 1999, she was promoted to the post of Administrative Assistant in Personnel. As a result of a classification exercise, the Applicant was classified as a Human Resources Associate from 1 December 2001. The Applicant retired from service effective 31 March 2005.

The Applicant was placed on sick leave with full pay from 5 May 2003 until 11 February 2004. Upon exhaustion of the Applicant’s sick leave entitlements to full pay, she was placed on sick leave with half pay, combined with annual leave from 12 February to 17 November 2004. Having exhausted all of her sick leave entitlements and accrued annual leave, the Applicant was granted special leave with full pay (“SLWFP”) from 18 November 2004 until her retirement on 31 March 2005.

On 5 October 2005, the Applicant requested the Resident Representative, UNDP Kenya, to place her retroactively on special leave with full pay from 23 March 2004, stating that she had been “medically cleared” and had been “willing and able” to return to work in March 2004. The Applicant also requested that the attendance records and leave balance at the date of separation be adjusted accordingly.

On 11 November 2005, the Resident Representative, UNDP Kenya, replied to the Applicant’s request, confirming her administrative status on extended sick leave in March 2004. On 22 December 2005, the Applicant replied to the Resident Representative’s letter, and on 3 January 2006, the Applicant requested an administrative review of the decision of the Resident Representative, UNDP Kenya, not to place her on SLWFP from March 2004.

On 9 March 2006, the Assistant Administrator and Director of the Bureau of Management confirmed the Resident Representative’s decision. In his letter to the Applicant, the Assistant Administrator stated that, despite the Applicant’s claim that she is requesting the review of an administrative decision taken by the Resident Representative on 11 November 2005, it should be noted that the Resident Representative’s 11 2


November 2005 letter is only an explanatory note of the Applicant’s administrative status since March 2004. The Assistant Administrator also stated that the Applicant’s claim that she was “medically cleared to return to work” on 23 March 2004 was not substantiated with medical evidence. However, the Assistant Administrator pointed out that, even if it was assumed that the Applicant had been medically cleared on 23 March 2004, the Applicant’s request for review should have been made within two months from 23 March 2004. The Assistant Administrator, therefore, concluded that the Applicant’s request for review was time-barred.

On 12 April 2006, the Applicant filed an appeal with the Joint Appeals Board (“JAB”). The JAB adopted its report on 26 December 2006. Its considerations and recommendation read, in part, as follows:

“1. The Appellant is contesting the administrative decision to not place her [SLWFP] from 23 March to 17 November 2004. The Appellant argues that, upon submission of her medical documentation dated 5 April 2004, she should have been removed from sick leave with half pay and placed on SLWFP.

2. The Panel, in its executive session of 7 December 2006, noted that the Appellant first made her request in a letter dated 5 October 2005 to UNDP, 18 months after the date of Appellant’s alleged medical clearance, and six months after the Appellant’s effective date of separation on retirement. The Resident Representative, UNDP, responded on 11 November 2005, reiterating the Organization’s original decision. The Appellant requested on 3 January 2006 review of the response. The Director, Bureau of Management, UNDP, provided administrative review in a memorandum dated 9 March 2006, raising time-bar among other issues.

3. The Panel finds that the appeal is not receivable, as the Appellant failed to meet the requirement in staff rule 111.2(a) to submit a request for review within two months of receipt of notification of the contested decision, embodied here in the notification of March 2004 salary payment. The Panel observed that the medical documentation of 5 April 2004 was only received by the UN Joint Medical Services in March 2005, and contradicted earlier medical reports of the Appellant’s treating physician. Noting that the Appellant was a Human Resources Assistant, the Panel, while taking into account her illness, found no exceptional circumstances as required by staff rule 111.2(f) for waiving the time-limit.

4. Therefore, the Panel recommends that the Secretary-General find this appeal time-barred and not receivable.”

On 16 May 2007, the Under-Secretary-General for Management submitted a copy of the report to the Applicant and informed her that the Secretary-General accepted the JAB’s findings and conclusions and accordingly decided to take no further action in her case.

On 26 November 2007, the Applicant filed the above-referenced Application with the Tribunal.
Whereas the Applicant’s principal contentions are:

1. The JAB misdirected itself when it found that the applicable administrative decision was that contained in the March 2004 salary payment. The applicable administrative decision was that contained in the Resident Representative’s letter of 11 November 2005.

2. The Applicant complied with the provisions of staff rule 111.2 and therefore her request for review is receivable.

3. The Applicant has been seriously injured by defamation, character assassination, and by flagrant and undeniable administrative injustice which warrants compensation.

Whereas the Respondent’s principal contentions are:

1. The Applicant’s claim is time-barred. No exceptional circumstances existed that could warrant a waiver of the time limits.

2. The Applicant’s claim relating to defamation and character assassination was not before the JAB and is therefore not receivable.

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