2013-UNAT-332, McCluskey
UNAT held that UNDT did not commit an error of fact or law when it concluded that the difference of treatment between the Appellant and his former colleagues who had undergone a competitive selection process was lawful. UNAT held that it was reasonable and lawful to treat them differently at the time of deciding about the possible extension of his fixed-term appointment because equality meant not only the equal treatment of equals but also the unequal treatment of unequal. UNAT held that there was no flaw in the motivation of the impugned judgment that could result in a manifestly unreasonable decision such as to allow the appeal. UNAT held that no expectancy of renewal could arise from the terms of employment nor was it created by the Administration. UNAT held that the extensions of contract granted to the Appellant constituted the adequate treatment he had the right to receive but could not be considered as modifying the nature of his contract or terms of employment. UNAT dismissed the appeal and affirmed the UNDT judgment.
The Applicant contested the non-renewal of his contract, claiming unequal treatment. UNDT found against the Applicant. UNDT concluded that the distinction made by UNHCR between fixed-term appointments (FTA) of long duration and FTAs of short duration had a legal foundation and that it fell within the discretionary authority of UNHCR to distinguish between those two categories of staff.
Equality means not only the equal treatment of equals but also the unequal treatment of unequal.