UNDT/2010/203, O'Neill
Inexplicably, the JAB in its report sua sponte addressed, as a formal issue before it, the handling of a privileged and confidential letter (“Confidential Letter”) that the Applicant’s Counsel had sent to the Under-Secretary-General for OIOS (“USG”) regarding the pending JAB litigation. The JAB refused the Applicant’s non-selection claim, but found that the Respondent owed the Applicant an apology for forwarding the Confidential Letter to some staff members. The Respondent subsequently affirmed the non-selection decision, but rejected the issuance of an apology regarding the distribution of the Confidential Letter, instead referring the Applicant for “any recourse” to the former 山Administrative Tribunal. In his appeal to the Administrative Tribunal, the Applicant articulated the only issue on appeal as being “whether the Respondent disclosed alleged confidential information …. and whether the Applicant suffered any consequential harm for which he is entitled to compensation”—an issue that had never been the subject of administrative review and that had not been formally preserved for appeal. Outcome: The appeal is dismissed as not receivable.
The Applicant was not selected for a P-5 position and a) sought administrative review of the decision and b) submitted an appeal to the JAB.
A mandatory first step in any appeal process before the Dispute Tribunal is that the Applicant has requested either an administrative review or a management evaluation of the contested administrative decision, depending on when the decision was taken. The Applicant is to clearly identify the administrative decision which she/he appeals, otherwise her/his application is not receivable. Although the Tribunal may order specific performance to a contested decision under art. 10.5 of the Statute, this provision does not include specific performance of a JAB recommendation, which is advisory only and does not constitute a contestable administrative decision under the Statute.