UNDT/2012/043, Morsy
Outcome: The Tribunal awarded the Applicant USD25,000 for the breach of his rights and the resultant harm. The Applicant also contested the decision to remove some of his functions from him and modify his reporting arrangements, to initiate and carry out a fact-finding management review in relation to his performance, and to place him on special leave with full pay (“SLWFP”). The UNDT made the following findings. The Respondent failed to meet its obligations for assessing and managing the performance of the Applicant. The Respondent did not fully and fairly raise the performance issues at the time they were first noted and the Applicant was not given any meaningful opportunity to improve his performance as required by the UNFPA Policies and Procedures Manual. The decisions to remove some of the Applicant’s functions from him and change his reporting arrangements without notice and to maintain these changes without conducting an objectively verifiable evaluation of his performance as a manager were unlawful. The decision to initiate and carry out a fact-finding management review, instead of the PAD evaluation, and to use the results of that review to justify decisions adverse to the Applicant, without the procedures and protections of a proper PAD process, was unlawful. The decision to place the Applicant on SLWFP for reasons of his performance, without a fair and objectively verifiable evaluation of his performance as a manager, was unlawful. The decision not to renew the Applicant’s fixed-term contract beyond its expiration date of 31 October 2007 was lawful in view of the final performance ratings as affirmed by the Rebuttal Panel.
The Applicant contested the non-renewal of his appointment with the United Nations Population Fund (“UNFPA”) beyond 31 October 2007, which was based on the grounds of his performance.
Legal authority of manuals: Although manuals do not necessarily have the legal authority vested in properly promulgated administrative issuances, they set standards of procedures that are expected to be met by both management and staff members, unless they are contrary to an instrument of higher authority.Judicial review of performance based non-renewal: Where an adverse decision affecting a staff member’s contractual situation is made based on the staff member’s performance, the Tribunal’s role is to assess whether the Administration complied with the relevant procedures. Poor performance may be the basis for the non-renewal of a contract, but “where a decision of non-renewal does not follow the fair procedure or is based on improper grounds, the Tribunal may intervene”.