UNDT/2011/045, Rosenberg
The issues before the Tribunal were whether the Applicant had a legal expectancy of renewal; whether the abolition of the Applicant’s post was a valid exercise of the Organization’s discretion; and whether the Applicant was fully and fairly considered for the newly created posts following a restructuring within the Organization. Outcome: The application failed and was dismissed.
The Applicant contested the decision not to take any further action following her report of abuse of authority and harassment.
On organisational restructuring: An employer is entitled to re-organise the work or business to meet the needs and objectives set by the employer. It is not for a labour court or tribunal to dictate to an employer how they should run the business or undertaking. The court will not interfere with a genuine organisational restructuring, even thought it may have resulted in the loss of employment for an applicant. Reorganising and restructuring of the workplace should not be used as a mechanism for getting rid of an employee whom management may regard as being troublesome or whose continued presence was no longer deemed desirable. Issues relating to an individual’s conduct are to be dealt with through the appropriate internal procedures. On retaliation: An applicant will have to prove that the decision-maker was aware of the act which the applicant submits triggered the particular decision which was to his or her detriment. It is useful in such cases to apply the “but for” test. In other words whether, but for the act that attracts protection, the outcome would have been different or more favourable.