UNDT/2012/130, Longone
Competence of decision-maker: Competence of the decision-maker is a cornerstone of the legality of an administrative decision. When the exercise by the Administration of its discretionary power is under judicial review, any lack of authority leads inevitably to the rescission of the contested decision.As this is an essential element for the legality of the contested decision, the authority of the decision-maker has to be assessed by the Tribunal on its own motion, regardless of the parties’ views at any stage of the administrative and judicial proceedings.Delegation of authority: Exclusions from a broad delegation of authority have to be explicit. Similarly, any withdrawal or limitation of a delegation of authority must be explicit. Transparency and legal certainty require that when a delegation of authority is granted, the delegating authority must first clearly and formally revoke the delegation before it can exercise its authority again.Administrative discretion and judicial review: The outcome of the consideration for conversion to a permanent appointment is a discretionary decision and in its discretion, the Administration is bound to take into account “all the interests of the Organization” as per former staff rule 104.12(b), as well as ‘the operational realities’ of the Organization (see GA 51/226). It is established case law that the Tribunal, in conducting its judicial review, may not lightly interfere with the exercise of administrative discretion, nor substitute its judgment for that of the Secretary-General.Alternative compensation under art. 10.5(a) of UNDT Statute: It is not required that alternative compensation be set by the UNDT at a level which would force the Secretary-General to implement the order for rescission. Compensation must be set following a principled approach and on a case-by-case basis. In particular, the Tribunal must take into account the nature of the irregularity which led to the rescission, as well as the prohibition on the award of exemplary or punitive damages set out in article 10.7 of its Statute.In the case at hand, the Tribunal must further bear in mind that staff members eligible for conversion have no right to the granting of a permanent appointment but only that to be considered for conversion.Compensation under art. 10.5(b) of UNDT Statute: Not every violation will necessarily lead to an award of compensation. In this case, the Tribunal found that it would be highly speculative to award compensation under article 10.5(b) considering that it decided to rescind the contested decisions only because of a procedural irregularity and that it did not address the merits of such decisions.
The Applicant, a staff member of the International Criminal Tribunal for the former Yugoslavia (“ICTY”), contested the decision whereby the Assistant Secretary-General for Human Resources Management refused to convert his fixed-term appointment into a permanent appointment. The Tribunal found that the contested decision was tainted by a substantial procedural flaw—that of the lack of competence of the decision-maker, the Assistant Secretary-General for Human Resources Management. It accordingly rescinded the contested decision and set at EUR 2,000 the amount of compensation that the Respondent may elect to pay to the Applicant as an alternative to the rescission.
N/A
Only specific performance (incl. rescission with m