UNAT Held or UNDT Pronouncements
The Appeals Tribunal granted the Secretary-General’s appeals, dismissed Mr. Heurtematte’s appeal and reversed the UNDT Judgments.
The Appeals Tribunal found that the UNDT’s largely speculative grounds for concluding ulterior motives by UN Women were not justified, especially when compared to the compelling contemporaneous reasons for the abolition, i.e. the fact that UN Women no longer had a physical office in Panama, that the staff was working from home, and that the motor vehicles had been sold. The UNDT went too far in reaching its own speculative conclusions why and how UN Women abolished the driver’s post and paid insufficient attention to the justification for the reasons advanced by the Administration at the time for that strategy. The Appeals Tribunal concluded that in doing so, the UNDT erred in law and in fact resulting in a manifestly unreasonable decision.
Having found that the abolition of post and non-renewal decisions were lawful, the Appeals Tribunal found that there was no need to consider remedies.
The Appeals Tribunal referred the matter of the formal disestablishment of the post formerly held by Mr. Heurtematte under Article 9(5) of the Appeals Tribunal’s Statute to the Executive Head of UN Women for possible action to enforce accountability in relation to this apparent failure.
Decision Contested or Judgment/Order Appealed
Before the UNDT, Mr. Heurtematte, a former driver for the Regional Office of UN Women in Panama, contested the decision not to renew his fixed-term appointment due to the abolition of his post.
In Judgment on Liability No. UNDT/2022/131, the UNDT found that it had not been established that Mr. Heurtematte’s post had, in fact, been abolished. The UNDT concluded that despite apparently compelling reasons UN Women's decisions were unlawful. That was because his post was not formally abolished; its funding was reallocated for a new position within the mission; and it was possible that UN Women might again in future engage a driver.
In Judgment on Remedies No. UNDT/2023/045, the UNDT rescinded the decision not to extend Mr. Heurtematte’s appointment and awarded him one year’s net-base salary in lieu of recission but declined to award him moral damages.
The Secretary-General filed appeals against both UNDT Judgments, and Mr. Heurtematte appealed against the Judgment on Liability.
Legal Principle(s)
A restructuring of an organisation’s activities, which may result in the abolition of posts and thereby of a staff member’s employment, must be genuine and not a charade or device disguising other motivations to achieve a concealed real purpose. One indication of the absence of such genuineness is if the organisation subsequently retains the post or the activities performed under it, especially if someone else is appointed or transferred to perform those duties of the previously redundant incumbent.
The Administration has a duty to act with moderation, lawfully, rationally, procedurally correctly, proportionately, fairly, justly and transparently. The Organization does not have completely unfettered discretion to act as it may wish. However, so long as it acts as just described, the Organization has considerable discretion to adjust its governmental or business model without the Tribunals interfering and certainly without them substituting their decisions for those of the Organization which is better placed to make them.
The reasons proffered for the abolition of a post resulting in the discontinuation of a staff member’s employment must be coherent. That is, they must not be irrational, and they must be rationally connected to the purpose for which it was taken. This requires that the UNDT be satisfied by the decision-maker that, as a matter of good administration, there were adequate and coherent reasons for the decision at the time of its making.
Outcome
Outcome Extra Text
The Secretary-General’s appeals are granted, and Mr. Heurtematte’s appeal against the Judgment on Remedies is dismissed. Judgment Nos. UNDT/2022/131 and UNDT/2023/045 are hereby reversed. The matter of the formal abolition of the post formerly held by Mr. Heurtematte is referred under Article 9(5) of the Statute of the Appeals Tribunal to the Executive Director of UN Women for possible action to enforce accountability in relation to this apparent failure.