2022-UNAT-1262, Egor Ovcharenko et al., Danield Edward Kutner et al.
As a preliminary matter, UNAT dismissed the appeals of two staff members who were not a party to the proceedings before the UNDT and had no standing. On the merits, UNAT held that there was a reviewable administrative decision within the meaning of Article 2(1)(a) of the UNDT Statute. UNAT held that the UNDT erred finding that the announcement by the USG/DGACM dated 8 April 2021 that the daily workload of translators would be increased to 5.8 pages and of self-revisers to 6.4 pages, was not an appealable administrative decision for the purpose of Article 2(1) of the UNDT Statute. UNAT held that, applying the test set out in its pertinent jurisprudence, the announcement contained all the necessary components to give rise to legal consequences for the Appellants. UNAT held that the announcement contained information which affected the rights of the staff members in question given that it was being clearly communicated to them that changes were going to be made to their workload conditions and also it conveyed the final and unequivocal decision to that effect. UNAT held that the UNDT erred in law and in fact when it decided the announcement was not a final decision by the Administration, but only a preparatory step towards it. UNAT held that Appellants suffered negative consequences at the material time the contested announcement was made to them on 8 April 2021. The future launch of the implementation of the announced administrative measures did not detract from the finality of the impugned announcement. UNAT held that the UNDT erred further in its subsequent determination that the request for management evaluation was premature on the basis that there was no appealable administrative decision. UNAT held that the Appellants’ application was receivable ratione materiae and ratione temporis. UNAT held that the since the UNDT Judgment only addressed issues of receivability, the case had to be remanded to UNDT for consideration on the merits pursuant to Article 2(3) of the UNAT Statute. UNAT granted the appeal, reversed the UNDT Judgment and remanded the case to UNDT for a trial on the merits.
The Appellants, staff members of the Department of General Assembly and Conference Management (DGACM), challenged a unilateral change in individual workload standards for translation and self-revision. UNDT dismissed their applications as not receivable ratione materiae.
A statutory burden is placed upon an applicant to establish that the administrative decision in issue is in non-compliance with the terms of his or her appointment or contract of employment; such a burden cannot be met where the applicant fails to identify an administrative decision capable of being reviewed, that is, a specific decision which has a direct and adverse impact on the applicant’s contractual rights. An appealable administrative decision is a decision whereby its key characteristic is the capacity to produce direct legal consequences affecting a staff member’s terms and conditions of appointment. In order to be considered an appealable administrative decision, what matters is that the administrative measure must have a present and direct adverse impact on the terms and condition of employment and not the potential of a future injury. The date of an administrative decision is based on objective elements that both parties can accurately determine. There is no explicit requirement for written notification as a prerequisite to contest an administrative decision. If there is no written notification, it is incumbent on the body reviewing the matter to consider whether the circumstances surrounding the verbal communication still constitute notification. Although the implementation of an administrative decision is, at times, an indicator of its finality, it is not one of the requisite key characteristics of an appealable administrative decision.