Â鶹APP

Receivability

After considering the evidence on record, the Tribunal found that the challenge to the decision to abolish the Applicant¡¯s post and terminate his continuing appointment was not receivable. It held that the only matter before it was the decision not to extend the Applicant¡¯s employment to cover his sick leave, but instead to terminate his appointment and separate him while he was on certified sick leave.

Merits

First, the Tribunal assessed whether the Applicant was on certified sick leave at the time of his separation on 31 December 2023.

Although sick leave was not formally recorded in Umoja for the weekend of 30 and 31 December 2023 or for the UN holiday on 1 January 2024, the evidence showed that the Applicant had been on certified sick leave continuously up to 29 December 2023 and that his sick leave was recommenced immediately thereafter. In fact, based on a physician¡¯s recommendation for sick leave from 1 to 31 January 2024, the Medical Service approved a further period of certified sick leave from 2 to 31 January 2024.

The Tribunal found it implausible that the Applicant was fit to work during the intervening non-working days and noted that the Respondent failed to explain why sick leave was certified immediately before and after that gap. It concluded that the absence of certification for those days was likely due to an administrative or technical oversight and held that the Applicant¡¯s certified sick leave should be regarded as continuous until 31 January 2024.

However, the Tribunal rejected the Applicant¡¯s claim of uninterrupted sick leave until 18 March 2024, as the sick leave requests for the period from 1 February to 18 March 2024 were never reviewed or certified by the Medical Service.

Second, the Tribunal examined whether terminating the Applicant¡¯s appointment while he was on certified sick leave was unlawful.

The Tribunal held that section 3.9 of ST/AI/2005/3 applies only to fixed-term appointments and does not require extending a continuing appointment that has been terminated while a staff member is on sick leave.

Nonetheless, the Tribunal emphasized the Organization¡¯s duty of care toward staff members. Given that the Applicant¡¯s sick leave had already been approved by the Medical Service before the termination decision of 31 December 2023, and that the Administration was aware of his medical condition, the Tribunal found that the Organization should have respected the already certified sick leave. By terminating the Applicant¡¯s appointment on 31 December 2023 while he was on pre-approved certified sick leave until 31 January 2024, the Administration breached its duty of care. The Tribunal therefore concluded that the termination decision was unlawful.

Remedies

The Tribunal rescinded the contested decision and set, as compensation in lieu of reinstatement, an amount equivalent to one month of the Applicant¡¯s full salary, including pension contributions.