UNDT/2012/033, Rockcliffe
Outcome: Judgment for the Applicant. The parties were ordered to attempt to resolve the issue of appropriate relief, failing which it would be considered by the UNDT. The UNDT found that the requirement to take a break in service was unlawful and did not reflect the true facts as no actual break in service or separation took place. The UNDT found that there was no legal requirement for the Applicant to be placed on appointment of limited duration between 5 and 30 June 2009, and the decision to give her an appointment of limited duration was manifestly unreasonable and therefore unlawful. The UNDT found that the Applicant failed to establish that she had made requests for an exception under former staff rule 112.2(b).
The Applicant, a staff member of the United Nations Stabilization Mission in Haiti (“MINUSTAH”), contested the decisions to subject her to a retroactive seven-day break in service from 29 May to 4 June 2009 and to give her an appointment of limited duration (as opposed to a fixed-term appointment) from 5 to 30 June 2009, prior to her appointment under a fixed-term contract effective 1 July 2009.
Break in service: In the United Nations context, a break in service is, in essence, a certain period following the ending of a contract during which a person cannot be employed by the United Nations. The decision to impose a break in service is intrinsically linked to the staff member’s contract as this period commences immediately after the end of the contract and continues for some time prior to the new appointment. Exceptions to administrative issuances other than staff rules: Although former staff rule 112.2(b) refers to exceptions to the Staff Rules, exceptions may be made by the Secretary-General also in relation to the provisions of lower instruments. Requests for exceptions: The Administration should not be excessively formalistic and demand that for a request for an exception to be considered as such, it must necessarily be addressed directly to the Secretary-General. However, such a request must be formulated by the staff member in sufficiently clear terms to be regarded by the Administration as a request for an exception to the Staff Rules or subordinate instruments under former staff rule 112.2(b). A request for an exception to the Staff Rules should be sufficiently clear to create, on reasonable assessment, the impression that what is being asked for is the consideration for an exception under the mechanism envisaged by former staff rule 112.2(b). It should not be a matter of second- guessing the staff member’s intentions.