UNDT/2018/028, Munyan
The Applicant was invited to and successfully passed the assessment process, during which the assessment panel evaluated his technical skills and competencies through a written test and a competency-based interview, pursuant to sec. 7.5 of ST/AI/2010/3/Amend. 1. As a consequence, the Applicant was placed on the list of recommended candidates by the hiring manager for review by the CRC, pursuant to secs. 7.6 and 7.7 of ST/AI/2010/3/Amend. 1. Both parties agree that this evaluation process was conducted in accordance with the applicable procedures.; In reviewing the selection process, the CRC expressed doubts as to whether the Applicant possessed the minimum experience for the position and, therefore, asked further information to the hiring manager, pursuant to sec. 4.8 of ST/SGB/2011/5.; Instead of providing the requested information and explaining how he had assessed the Applicant’s candidacy, the hiring manager decided to remove his name from the list of recommended candidates without re-examining his qualifications.; In so doing, the hiring manager abdicated her duty to respond to the CRC’s query and deprived the Applicant of the opportunity to have his candidacy fully and fairly considered. The Tribunal stresses that even if the hiring manager was of the view that other recommended candidates would be preferred to the Applicant, she was not entitled to remove him from the list at this stage. In this respect, it is recalled that the hiring manager is not the one making the selection decision, his or her role being limited to recommending suitable candidates to the head of office/department, who has been delegated the authority to take the selection decision on behalf of the Secretary-General. The decision-maker may well have had a different preference than the one expressed by the hiring manager.; By removing the Applicant and the other candidate for which the CRC had raised doubts instead of explaining how the experience criteria had been applied, the hiring manager prevented the CRC from properly reviewing the selection process, as was its duty pursuant to sec. 8.1 of ST/AI/2010/3/Amend.1.; Moreover, in changing the terms of the memorandum to the CRC, by modifying the Applicant’s assessment and that of another candidate to “not suitableâ€, the hiring manager incorrectly described the selection process. As a consequence, the final endorsement by the CRC was based on an inaccurate description of the procedure followed. Indeed, for instance, the revised memorandum of 1 July 2016 indicates that 11 candidates were subject to a substantive assessment, while in fact 13 were.; In view of the foregoing, the Tribunal found that the decision not to recommend the Applicant for the position, which led to the decisions not to select him nor to place him on the roster, was procedurally flawed and that the Organization had not minimally shown that the Applicant’s candidacy for the post was fully and fairly considered. Consequently, the decisions not to select the Applicant for the post and/or not to place him on the roster were unlawful.; Having found that the selection decision for the contested post was unlawful and considering that the Applicant had a significant chance to be selected for it, the Tribunal rescinded it. The Tribunal also rescinded the decision not to place the Applicant on the roster, which was equally unlawful.; The Tribunal found it reasonable to set the amount of compensation in lieu of rescission at the equivalent of two months net base salary at the P-3 level, step 1.; The Tribunal did not set alternative compensation for the rescission of the decision not to place the Applicant on the roster, as it considered that this decision did not concern an “appointment†(see, e.g., Farr 2013-UNAT-350; Gusarova UNDT/2013/072); In this case, the Applicant did not identify any specific material or moral damage for which he requested compensation. The Applicant’s claim for damages under art. 10.5(b) of the Tribunal’s Statute was thus rejected.
The Applicant contests the decisions not to select him for the position of Humanitarian Affairs Officer (Financial Tracking Service) (P-3) in the Office of Coordination of Humanitarian Affairs (“OCHAâ€), and not to place him on a roster of pre-approved candidates for openings with similar functions at the same level.
The Secretary-General has broad discretion in matters of appointment and promotions. When reviewing such decisions, the Tribunal shall examine “(1) whether the procedure as laid down in the Staff Regulations and Rules was followed; and (2) whether the staff member was given fair and adequate consideration†(Abbassi 2011-UNAT-110; Majbri 2012-UNAT-200; Ljungdell 2012-UNAT-265); The Secretary-General bears the overall onus to prove the justifiability of the decision on promotion (Ngokeng 2017-UNAT-747); In determining the amount for compensation under art. 10.5(a) of its Statute in appointment or promotion cases, the Dispute Tribunal must take into account the nature of the irregularities on which the rescission of the contested decision was based, and the chances that the staff member would have had to be selected had those irregularities not been committed (Appleton 2013-UNAT-347). However, the determination of the; “compensation in lieu†must be done on a case-by-case basis and ultimately carries a certain degree of empiricism (see Mwamsaku 2011-UNAT-265); Art. 10.5(b) of the Tribunal’s Statute was amended by the General Assembly on 18 December 2014 to require that compensation for harm be supported by evidence.
Judgment Munyan UNDT/2018/028 affirmed by UNAT in Judgment Munyan 2018-UNAT-880.