UNDT/2011/004, Meron
The Tribunal found this decision unlawful as not grounded on any valid legal basis. It awarded three months’ net base salary for moral damage.
The Applicant, a Finish national holding a short-term appointment, was selected for a post and offered a two-year contract, but OHRM informed her that, if she wished to be granted this contract, she would need to relinquish his permanent resident status in Australia.
Decision affecting the applicant’s rights: Since staff members have the right to apply to other positions under the Staff Rules and Regulations, they are entitled to contest a non-selection decision or one imposing an additional condition for appointment after having been selected. Such a decision does affect the staff member’s rights and is thus open to appeal. Lack of legal basis for the condition to renounce to permanent resident status: The General Assembly never endorsed the recommendations to approve the establishment of the condition that staff members must relinquish their permanent resident status in order to obtain an appointment with the Organization. There is no written rule prescribing such a condition. In addition, the terms of appointment of staff members and in particular the conditions for their recruitment are governed exclusively by the Staff Rules and Regulations, and, if anything else, by the administrative issuances promulgated in application thereof. The Secretary-General exceeded his authority in prescribing to the Organization’s services to generally apply an additional condition for recruitment of international staff members. Difference of post adjustment: Difference between post adjustments in two different duty stations is linked to the duty station where the staff member serves and cannot be claimed as a loss suffered by an applicant. Material losses: Potential and future prejudice as well as that not directly related to an unlawful decision do not constitute losses for which compensation may be claimed.