UNDT/2013/069, Cordoba de Briz
The Applicant contended that the transfer decision was unlawful in that it was arbitrary and adopted and implemented in breach of mandatory procedures and that UNCTAD senior management acted in bad faith and with ulterior motives when doing so. The Respondent submitted that the UNCTAD senior management acted within its margin of discretion and on properly reasoned grounds based on the Applicant’s skills and qualifications and the operational needs of UNCTAD both in New York and Geneva. The Tribunal found that the reasons provided to the Applicant for his transfer were not justified by the facts and that the reasons were provided so late in the process that it not only impeded him from properly presenting his case before the MEU but also—particularly in light of the totality of credible evidence—leaving the Tribunal with the distinct impression that they were furnished post facto to provide a justification for the transfer. The Tribunal further found that, considering the lack of any substantiated reasons by the Respondent for the contested decision, and the surrounding circumstances, it was bound to draw an adverse inference that no proper reasons existed, and to find that the decision to transfer the Applicant was, if not tainted by improper motives, at least arbitrary. Moreover, even on the preponderance of evidence, by the Administration acting so exceptionally irrationally and being disingenuous about its reasons, the Tribunal found that the Applicant had succeeded in demonstrating the decision was, if not tainted by improper motives, at least arbitrary. The Tribunal awarded the Applicant USD15,000 in compensation for his emotional distress and injury.
The Applicant, a P-3 Economic Affairs Officer at UNCTAD, contested the decision to transfer him laterally from UNCTAD’s liaison office in New York to the Trade Information Section in the Trade Analysis Branch in Geneva.
Reasons for transfer: The Administration must inform a staff member, if s/he is to be transferred, about the reasons for the administrative decision. These reasons must be based on the facts and be provided to the individual so s/he will have adequate time to prepare an appeal of the decision through the established internal justice system, including the management evaluation process.Management’s discretion to transfer staff: Management has a broad margin of discretion in deciding to transfer a staff member, but such decision must not be arbitrary, procedurally deficient, or the result of prejudice or some other improper motivation.Drawing an adverse inferences when claiming arbitrariness and improper motives: While the Administration’s failure to provide proper and substantiated reasons does not automatically render the contested decision arbitrary, the Tribunal may draw an adverse inference from it.