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UNAT upheld the UNDT’s conclusion that the Administration’s decision not to set up a fact-finding investigation panel against Mr. Yavuz’s FRO and SRO was lawful, as the incidents described in Mr. Yavuz’s complaint did not provide sufficient grounds they had engaged in prohibited conduct (harassment, abuse of authority) but fell in the realm of workplace disagreements. UNAT found that Mr. Yavuz did not show that the incidents mentioned in his complaint with regard to the conduct of his FRO and SRO were in any way motivated by any of the characteristics or traits (or similar) listed in Section 1 of ST/SGB/2008/5, or in which way Mr. Yavuz was treated unfairly compared to other categories of staff members, or the improper use of a position of influence, power or authority against him by his FRO and SRO, other than a normal exercise of managerial powers by them, 

Mr. Yavuz claims that the UNDT applied an incorrect definition of harassment. Specifically, Mr. Yavuz cites Section 1.2 of ST/SGB/2008/5, which states that “[h]arassment is any improper and unwelcome conduct that might reasonably be expected or be perceived to cause offence or humiliation to another person”. Based on this provision, Mr. Yavuz arguesthat the “second part of this test is purely subjective, requiring that the action ‘be perceived to cause offence or humiliation’ without enquiry as to the reasonableness of such”. He contends, further, that, as long as an individual finds conduct unwelcome and feels offended and humiliated by it, the conduct is automatically to be considered harassment or at least possible harassment and would require an investigation. In support of his arguments, Mr. Yavuz cites a number of factual findings made by the UNDT in Judgment No. UNDT/2021/062, which adjudicated his challenge of the decision not to renew his appointment, that he characterizes as “established facts which clearly indicate possible conduct consistent with the definition of harassment and abuse of authority”. 70. Mr. Yavuz’s advanced interpretative proposition of the cited law provisions is misplaced. The same goes for Mr. Yavuz’s understanding of the findings made by the UNDT in Judgment No. UNDT/2021/062, which do not support, as the Secretary-General correctly submits, an argument that the UNDT should have found that his complaint met a standard that should have compelled the Administration to start an investigation. 71. In terms of Section 1.2 of ST/SGB/2008/5, harassment includes conduct “that might reasonably be expected or perceived to cause offence or humiliation to another person”. It is not necessary to establish that the alleged offender was ill-intended, namely the motive of the allegedly offender does not remove his conduct beyond the scope of harassment. Nevertheless, the test is not a subjective one, as it focuses on the conduct itself and requires an objective examination as to whether it could be expected or perceived to cause offence or humiliation to a reasonable person. 72. On this issue, the UNDT Judge made a reference to Judgment No. UNDT/2021/062, wherein the UNDT opined, inter alia, that Mr. Yavuz’s performance had not been managed or evaluated in a fair and objective manner by her FRO and SRO, as it had been influenced by the contrasts between them and Mr. Yavuz. However, the UNDT noted, at first, that “one thing is the wrong use of managerial powers—in the present case, the wrong evaluation of performance that is an objective situation (connected to the results)—and another thing is the abuse of authority in performance evaluation (an abusive performance evaluation), which requires something more, that is the scope of harm and damage, or at least the awareness of the unfairness of the performance evaluation in its completion of it”.21In this context, the UNDT held that the FRO and SRO had been acting in good faith, convinced of performing their duties to the best of their abilities, with no proven intention to abuse their position and/or deliberately underestimating or, worse, harming the staff member. “The Applicant’s supervisors followed the performance evaluation process and no sign of discrimination or abuse of authority emerges from the record, although the outcome of the performance evaluation was objectively unfair”.22 74. Though the above mentioned UNDT’s first analysis of the complained of behaviour and its reasoning, referring to the motives of the FRO and the SRO, is erroneous, as it seems to have applied a subjective test incorrectly for establishing prohibited conduct, it is, nonetheless, inconsequential for the determination of the material issue in the present case, namely whether from the perspective of the third objective viewer that same behaviour provided sufficient grounds that the alleged facts might amount to such within the meaning of the applicable law. In this regard, as already alluded, the UNDT’s final conclusion is correct. 75. In fact, a close examination of the UNDT’s reasoning indicates that it considered there to be rational connection between the evidence, the contested decision, the reasons given for it and the purpose of ST/SGB/2008/5 (being to prevent and discipline prohibited conduct). In any event, an appeal is not against the reasoning of the lower tribunal; it is against the order. 76. Notably, although the UNDT made express findings on the motives of the FRO and the SRO as well as on the lack of harm or damage, as constituent elements of the administrative process for setting up an investigation panel into Mr. Yavuz’s complaint of prohibited conduct, we understand it to have also considered whether objectively the same conduct of the alleged offenders could reasonably be perceived as causing offence or humiliation, or constituted abuse of authority.On this basis, the UNDT reached its correct final conclusion that the various incidents described in Mr. Yavuz’s complaint “do not disclose any possible prohibited conduct under ST/SGB/2008/5 by his FRO or SRO”,24 to wit the overall circumstances of the particular case do not offer at least a reasonable chance that the alleged facts may amount to prohibited conduct within the meaning of the law. 78. Although it is clear that Mr. Yavuz was unhappy with his performance evaluation and his working relations with his FRO and SRO and that there were tensions in his work environment, the mere existence of a harassment and abuse of authority complaint does not render the relevant allegations true, nor does it equate that complaint, in and of itself, to a sufficient ground for the Administration to engage in a formal fact-finding investigation of the alleged misconduct. The existence of interpersonal problems does not amount per se to harassment and abuse of authority, nor does the concept of “abuse of authority” cover each and every case of impolite and awkward behaviour, as the UNDT rightly held making a reference to its Judgment in Benfield-Laporte (UNDT/2013/162),25 upheld by UNAT in its Judgment No. 2015-UNAT-505. 79. Based on these legal propositions the UNDT then held that the Administration was acting within the scope of its authority when it decided not to set up a fact-finding investigation panel. Since there was no sufficient ground to believe that the FRO and SRO had engaged in prohibited conduct within the meaning of ST/SGB/2008/5, the Administration could not proceed in the way requested by Mr. Yavuz, namely to initiate a formal investigation against them. 80. We agree with this finding. There was no evidence in the case at bar that this exercise of discretion was inappropriate due to a failure by the Administration to take into account relevant considerations or due to a consideration of irrelevant factors. Consequently, the presumption of regularity of the challenged administrative decision stands. Moreover, as correctly indicated by the Dispute Tribunal, the jurisprudence provides that the tribunals cannot replace the decision-makers in such matters of discretionary authority.Finally, Mr. Yavuz’s submissions with regard to the 31 October 2019 MEU decision are not relevant on appeal. Only the ASG’s decisions to reject his requests to undertake a fact-finding investigation against Mr. Yavuz’s FRO and SRO are subject to judicial review on appeal. Management evaluation is a mere condition of receivability of an application before the UNDT and does not form part of the contested administrative decision.26 The issues raised on appeal by Mr. Yavuz in terms of the MEU decision are of no legal relevance and will therefore not be reviewed by the Appeals Tribunal. Request for moral damages 82. Mr. Yavuz’s claim for moral damages is rejected. Since no illegality was found, there is no justification for the award of any compensation. As this Tribunal has stated before, “compensation cannot be awarded when no illegality has been established; it cannot be granted when there is no breach of the staff member’s rights or administrative wrongdoing in need of repair”.2