The Tribunal found no evidence of an express promise in writing sufficient to support a legitimate expectation of renewal of appointment. The Tribunal also found that the reason given for the decision was sufficiently supported by the weight of the credible evidence. The Applicant did not meet the burden of proving that the decision was motivated by bias, prejudice or discrimination.
Downsizing: The Tribunal found that the decision to cut the Applicant’s post and to not renew her appointment beyond its expiry was made in the context of the downsizing of the Mission. It was a rational decision made in light of the needs of the Organization. It was made and conducted in accordance with the procedures outlined in the information circulars. It was, with the exception of the short delay in conveying the actual decision, procedurally regular and lawful.Comparative review process: The Tribunal concluded noted that the functional title of the Applicant’s post did not match the...
Restructuring process: The Tribunal concluded that there were no procedural irregularities in either the creation of Oversight and Support Division (OSD) or the subsequent restructuring/realignment process. Both were undertaken in a fully transparent manner, with full consultation of all staff members including the Applicant. Sufficiency of reasons: The Tribunal concluded that the Applicant was given reasons for the decision on more than one occasion including those conveyed to her by her staff representative following a meeting with UNDP Senior Management. These reasons were based on the...
The Tribunal found that after a first positive evaluation in 2012, the Applicant’s first reporting officer had put the Applicant on notice in respect of what she perceived as shortcomings in the Applicant’s performance, at the beginning of the performance cycle 2013/14. It found, however, that the Rebuttal process was marked by serious procedural flaws and ruled that the final decision on the rebuttal, confirming the Applicant’s PAS rating for the cycle 2013, was illegal and could not stand. Therefore, and since the decision not to extend the Applicant’s appointment beyond 30 June 2014 was...
The Dispute Tribunal found that the contested decision was lawful and rejected the application. Application of ST/AI/2010/5 on Performance Management and Development System: This administrative instruction does not apply to UNFPA, which is a separately administered fund, as it has not explicitly accepted its applicability, as per ST/SGB/2004/9 on Procedures for the promulgation of administrative issuances. Obligation to provide an opportunity to improve performance prior to non-renewal: Absent any specific provision in the applicable rules, the Organization has no legal obligation to take any...
Scope of judicial review concerning post abolition: it is not for the Tribunal to substitute its own views to that of the Secretary-General on how to organize work and meet operational needs. The Tribunal may only examine and set aside decisions on very limited grounds, where there has been a finding of a breach of the administrative law considerations surrounding a decision.Improper motive: an Applicant has the burden of proof when seeking to demonstrate any improper motive.Comparative Review Policy for Locally Recruited Staff Members – paragraph 4: in the context of an exercise to abolish a...
Non-renewal: A non-renewal decision can be based on a mere reduction of work, based on a workload prognosis—made at the time of the decision. This can lead to a situation where a regular budget post remains vacant without actually being abolished. There is no legal obligation for the Administration to renew a staff member’s FTA based solely on the fact that the respective post is funded. On the contrary, it may be in the best interest of the Organization to save money instead of using available resources at all cost. In assessing future workload, the Administration necessarily has to make some...
Non-renewal: A non-renewal decision can be taken on the basis of a projected reduction of workload; in assessing future workload, the Administration necessarily has to make some prognosis, on the basis of the elements available at the time of the contested decision. Factual developments relating to the future workload after the date of the decision have to remain out of consideration, and do not have an impact on the legality of the decision under review. Extraneous factors: The burden of proof with respect to extraneous considerations falls on the Applicant. Ultra vires: A non-renewal...
Receivability The application registered under Case No. UNDT/GVA/2015/182, insofar as it is directed against the decision to discontinue the post encumbered by the Applicant, is not receivable ratione materiae. In his application registered under Case No. UNDT/GVA/2016/039, the Applicant contests his separation from service effective 2 March 2016 and the non-renewal of his appointment, as a result of the abolition of his post. This is an administrative decision resulting from the restructuring and the abolition of the Applicant’s post. Merits Procedural regularity The noncompliance with a...
The decision not to renew a fixed-term appointment is often closely linked to the Organization’s broader discretion on how to organize its services. In that respect, the Tribunal notes that in times of scare resources, managers bear particular responsibilities for making sound management decisions, which implies making an assessment of services needed at a given time in a given department, and to avoid to unnecessary expenditure of public money with which they are effectively entrusted. Any post facto assessment of these matters is only relevant to the extent that it is able to demonstrate...
