The UN Dispute Tribunal (UNDT) is an independent judicial body established to hear and resolve administrative decisions made by UN entities. Its structure mirrors a traditional legal system, with professional judges, a formalized registry and legal proceedings such as hearings and case management conferences. Advocates duly admitted to practice as such in a country are allowed to argue cases before the Tribunal, to help the staff members involved have access to a fair and just legal process.

However, before an application is made to the UNDT, staff members are generally required to go through several strict procedural steps. Below, we will explore the steps, timelines, and important considerations when filing a case before the UNDT, including exceptions and interpretations made by the Tribunal.

     A. Filing a Management Evaluation Request (MEU)

Before lodging an application with the UNDT, a staff member must file an MEU. This is an internal process where the decision being disputed is reviewed by management. Most cases require this step, but there are exceptions, depending on the nature of the claim.

     B. Informal Resolution Attempts

Staff members are strongly encouraged to seek informal methods of dispute resolution before filing with UNDT. These methods may include:

• Engaging with the UN Ombudsman and Mediation Services: This provides an opportunity to resolve disputes amicably without entering the formal legal process.
• Direct negotiations with the decision-maker or the office conducting the evaluation: This can lead to a quicker resolution.

A staff member who chooses either of the routes above can still be represented by legal counsel during these negotiations.

      C. Key Timelines to Observe and Jurisprudence

1. The 30-Day Rule: MEU Response Time

Once a staff member submits an MEU, the management has 30 days to respond. The staff member cannot file an application with the UNDT until:

• Day 31 (if no response is received); or
• They receive a response from the MEU (whichever comes first).

For instance, if a staff member sends a request on Day 1, they must wait for either a response or until Day 31 before filing with the Tribunal.

2. The 90-Day Rule: Filing with the UNDT

After receiving the MEU response or after Day 31 (in case of no response), the staff member has 90 days to file their application with the UNDT. This deadline is very important because any filing made after the 90-day window is typically dismissed.

3. MEU Response Timing: Early, Late, or No Response

• Early MEU Response: If the MEU responds before the 30-day deadline (say on Day 10), the 90-day timeline for filing with the UNDT begins from the day of the response. This gives the staff member the full 90 days to consider their options, regardless of how early the MEU responded.
• Late MEU Response: What happens when the MEU responds late (for example, on Day 55)? The UNDT has clarified this issue in cases like Mohammed, where the Tribunal held that staff members should not be penalized for the MEU’s delay. In this case, the clock resets to allow the staff member 90 days from the date they actually receive the late response.

For example, if the MEU responds on Day 60, the staff member will have 90 days from Day 60 to              file with the UNDT, rather than being bound by the earlier 90-day countdown from Day 31.

• No MEU Response: In the event that the MEU fails to respond within the 30-day period, the staff member has 90 days from Day 31 to file their application with the UNDT. The clock starts ticking on Day 31, even if no response has been received, and the staff member should file within this window to avoid being time-barred.

4. The Case of Mohammed and Time Limits

The case of Mohamed v. Secretary-General of the United Nations UNDT/NBI/2015/088 highlights a critical interpretation of the timing rules. In this case, the MEU responded late, but the response still fell within the 90-day window after Day 31. The UN’s lawyers argued that the 90-day countdown should have started on Day 31, regardless of the MEU’s late response. However, the Tribunal disagreed. They held that the staff member should be given the benefit of a full 90-day period from the date of the late MEU response. This ensures fairness and prevents the staff member from being penalized due to delays beyond their control.

5. What Happens if the MEU gives a response after the lapse of the 90 days

A more complex situation arises if the MEU is so late that more than 90 days have passed since Day 31. The Tribunal has not explicitly addressed this scenario in its precedent, but it would likely consider whether the MEU’s excessive delay unfairly prejudiced the staff member’s ability to file on time.

In such cases, the staff member could argue that their rights were violated due to the MEU’s failure to respond within a reasonable period. The Tribunal might then consider extending the filing deadline, particularly if the staff member acted in good faith and made reasonable efforts to follow the prescribed procedure.

A more prudent approach would be to proceed and file an application before the UNDT before the lapse of the 90 days. This shall reduce the risk of exposure to an applicant.

Conclusion

Understanding the procedures of the UN Dispute Tribunal requires a thorough grasp of the timelines and processes involved. Key takeaways include:

• Ensure a Management Evaluation Request is submitted before approaching the UNDT.
• Exhaust informal dispute resolution mechanisms, such as the UN Ombudsman and direct negotiations.
• Pay close attention to the 30-day and 90-day time limits for filing applications.
• Keep in mind that late responses from the MEU may reset the filing timeline, giving the staff member additional time to prepare their case.

Our team has had the opportunity to work on several cases brought before the UNDT including Kamunyi v Secretary General of the United Nations whom we represented at the UNDT and subsequently at the UN Appeals Tribunal. This hands-on experience has provided us with valuable insights into the procedural nuances and practical considerations involved in navigating the UNDT process. It has also allowed us to effectively represent staff members in seeking fair and just resolutions to their disputes with UN entities.

For more information, contact James Ochieng Oduol, Senior Partner at jochieng@tripleoklaw.com or Kelvin Njuguna, Associate knjuguna@tripleoklaw.com. This article was authored with assistance from Benson Odiwuor, Trainee Advocate.