7 November 2012
On 1 November, the United Nations Appeals Tribunal (UNAT) has awarded former senior staffer of the United Nations Office for Drugs and Crime (UNODC) Dr. Walter Gehr compensation in the sum of more than USD 10,000, because UNODC management had denied him the right to rebut his performance appraisal for the cycle 2009/2010.
One of the UNODC managers in charge of Dr. Gehr’s performance appraisal had stated in writing that the Office of Human Resources Management had advised him to deny Dr. Gehr the right of rebuttal. Almost a year ago, UNJustice had already voiced its grave concern about this decision.
In addition to awarding Dr. Gehr compensation, the UN appellate court recognized "the fundamental right of an employee to be heard in the context of a performance evaluation process ...” , and that “an employee has a fundamental right to put his or her case in response to an employer's assessment of his or her performance."
As underlined at the time by UNJustice, the UNDT had already observed “with concern” in a previous judgment on the matter that Dr. Gehr had been provided by UNDOC management "with no less than five different versions" of his performance appraisal, "which highlights the lack of rigour and diligence displayed by the Administration in the appraisal process". Had the Administration chosen to grant Dr. Gehr’s right to rebut its performance appraisal, the Secretary-General would have not been ordered to pay for its mismanagement.
Court documents reveals that in a submission before the UNDT, a UNODC managers wrote that Dr. Gehr “sees himself as some sort of a heroic figure, charged with the task of waging an epic battle against those whom he regards as craven or wicked ...". Although the UNAT did not address this point, the court stated that "the denial to the Appellant, [Dr. Gehr], on 24 November 2010, of the right to rebut his performance appraisal ... offended a basic tenet of justice ...". In view of this finding, Dr. Gehr has requested the UNDT judge in charge of four other complaints by Dr. Gehr to recuse himself. A decision is to be taken by the President of the UNDT.
Last June, the UNDT had already awarded Dr. Gehr USD 3,000 for the failure of UNODC to follow-up his reports of misconduct, in particular against the managers in charge of his performance appraisal.
While the judgment by the UNAT has not been yet released, the relevant wording of the court verdict of 1 November 2012 is reproduced below.
"We are of the view that in rendering Mr. Gehr's complaint about the rebuttal issue moot in light of the subsequent reversal of the decision of 24 November 2010, the UNDT judge failed to give sufficient weight to a central issue, namely the denial to Mr. Gehr, for a period of time, of the right to engage in a rebuttal process, should he wish to do so in the context of the performance appraisal evaluation the Administration provided to him on 19 November 2010. This Tribunal recognizes the fundamental right of an employee to be heard in the context of a performance evaluation process, irrespective of whether the appraisal is conducted inside or outside of ST/AI/2002/3. An employee has a fundamental right to put his or her case in response to an employer's assessment of his or her performance. The denial to the Appellant, Mr.Gehr, on 24 November 2010, of the right to rebut his performance appraisal, in the view of this Tribunal, offended a basic tenet of justice, namely the principle of audi alteram partem. This Tribunal is of the view that the denial of itself was of sufficient seriousness to warrant consideration by the UNDT judge as to whether an award of compensation was merited. Thus, by failing to give consideration to this issue, the UNDT judge erred. Mr. Gehr's appeal on this issue is thus allowed. Having regard to the circumstances of the instant case, this Tribunal deems, as just and equitable, for the period Mr. Gehr was denied his right of rebuttal, compensation in the sum of one month net base salary to be computed on the basis of a salary as of November 2010".
Related information:Urgent Appeal, UNODC: Dr. Walter Gehr (10 December 2011)