2023-UNAT-1313, John O’Brien
The UNAT held that the OAI recommendation in its investigation report that disciplinary action should be taken against the staff member did not constitute an administrative decision. Moreover, the recommendation of OAI was not a “decision”. It was an intermediate recommendation and thus did not have a direct, legal or adverse effect. The UNAT found that, likewise, the decision that there was insufficient evidence to charge the staff member with misconduct did not constitute an administrative decision because it did not have an adverse impact on his rights under the contract of employment. The UNAT noted that the OAI’s refusal of the staff member’s request to launch an investigation into the alleged wrongdoing of other staff members, who allegedly had planned a malicious complaint of sexual harassment against him, did not constitute an administrative decision because it lacked direct effect. Any challenge to it would have been not receivable also because he did not request management evaluation of the decision not to investigate. The UNAT dismissed the appeal, granted the cross-appeal and affirmed Judgment No. UNDT/2021/166 on different grounds.
A staff member contested the decision to not to launch an investigation into malicious reporting against him. In Judgment No. UNDT/2021/166 is, the UNDT held that the application was receivable. In relation to the merits, the UNDT concluded that the investigation had followed all the required procedures and regulations, and consequently dismissed the application.
The staff member appealed and the Secretary-General cross-appealed.
Before an administrative decision can be held to be in non-compliance with the contract of employment of a staff member, it must be shown to adversely affect the rights or expectations of the staff member and have a direct legal effect. The impact or consequences of a disputed decision must be based on objective elements that both parties can accurately determine. Speculation about potential future possible consequences for a staff member’s employment record or his reputation is an insufficient basis to conclude that a decision has had (not “may have”) a direct and adverse impact such as to be “in non-compliance with the terms of appointment or contract of employment” as contemplated in Article 2(1)(a) of the UNDT Statute. A recommendation to institute disciplinary action normally will not be an administrative decision because it may lack immediacy or finality and thus would not have a direct effect. A decision is only an administrative decision if it is of an administrative nature, adversely affects the contractual rights of a staff member and has a direct, external legal effect. Where a decision requires several steps to be taken by different functionaries, only the last of which is directed at the staff member, the previous decisions or actions of the administration lack direct effect, and only the final decision is appealable or reviewable. Preparatory or intermediate decisions are not reviewable. Staff members do not have any right under the governing legal framework to an independent review of an investigation by OAI.