UNDT/2016/115, Adundo
The Tribunal held that the application was receivable since the Applicant was alleging non-compliance with the terms of his appointment—namely, the obligation to act reasonably and in good faith—as a consequence of an alleged breach of an express promise creating a legitimate expectation. However, turning to the merits of the case, the Tribunal found that the Administration had not created a legitimate expectation when the Executive Office of the Department of Safety and Security informed him that “barring unforeseen circumstances, it is the intention of the Department to extend [your] fixed-term appointment … for another two year period” since this email could not be regarded as an express promise of renewal for two years. The Tribunal found no evidence that the decision to renew the Applicant’s appointment for one year instead of two was retaliatory or otherwise improperly motivated.
The Applicant appealed “the decision breaching the express promise made by the Administration to [the] Applicant to renew his fixed-term appointment for two years.”
On whether the Applicant contested an appealable administrative decision:The Tribunal finds the present application receivable, as the Applicant is alleging non-compliance with the terms of his appointment—namely, the obligation to act reasonably and in good faith—as a consequence of an alleged breach of an express promise creating a legitimate expectation. The Tribunal is competent to hear the application in accordance with art. 2.1(a) of its Statute.On whether the Administration created a legitimate expectation of renewal of appointment for two years:The Tribunal finds that the email of 1 September 2015 cannot be considered a firm commitment or an express promise in writing. The email merely informed the Applicant that, according to his supervisors, it was the intention of DSS to renew the Applicant’s appointment for two years “barring unforeseen circumstances.” The email was not copied to Mr. Browne, the Chief of the Security and Safety Service, who was ultimately the one who made a recommendation regarding the renewal of the Applicant’s appointment. The Tribunal accepts the explanation provided by the Respondent that the staff members involved in sending the 1 September 2014 email were not privy to the fact that the Applicant was under investigation, which was one of the reasons why Mr. Browne recommended a one-year extension.