UNDT/2018/098

UNDT/2018/098, Auda

UNAT Held or UNDT Pronouncements

The application is not receivable. The Applicant, as a staff member at the relevant time period, had a right to be fully and fairly considered as part of the terms of his former employment. Since the Applicant decided not to apply for JO 41653 in the belief that the post in question would be abolished according to the budget proposal for OICT, the question is whether he is entitled to a review of the contested decision despite his decision not to apply for the job opening. It is not disputed that the budget proposal for OICT was not adopted at the time of the publication and closing of JO 41653. In that regard, the present case is similar to Li and Rockliffe, who lacked standing, and distinguishable from Singh in that the Applicant decided not to apply for JO 41653 based on his subjective assessment of the possible OICT structure following the General Assembly resolution, which was not adopted at the time. Also, considering that ST/AI/2010/3 provides that a candidate is rostered for similar functions at the level of the job opening and that the evidence does not support that the Applicant is rostered for JO 41653, the Tribunal finds that the Applicant’s claim that he has standing to bring a claim based on his roster membership for the post in question fails. Finally, the Tribunal notes that the Applicant from the outset explained that he is not contesting “that he has not been selected to fill the vacant position, or, for that matter, the selection of anyone, but rather the making of a selection pursuant to an invalid job opening for a defunct position”. While the Tribunal does not rule on the merits of the claim, if the Applicant were seeking to impugn the JO itself, the matter should have been brought to the Dispute Tribunal when the issue was still live. The Applicant’s claim in this instance is therefore time barred.

Decision Contested or Judgment/Order Appealed

The Applicant, a former Principal Officer D-1 with DGACM, contests the decision of the USG, Department of Management (DM), not to cancel, then make a selection, pursuant to an “invalid” Job Opening for the “defunct” position of Chief of Service (D1), Strategic Information and Communication Technology Management in OICT. The Applicant was rostered for Chief of Service positions.

Legal Principle(s)

A former staff member has standing to contest an administrative decision concerning him/her if the facts giving rise to his/her complaint arose, partly arose, or flowed from his or her employment. There must be a sufficient nexus between the former employment and the impugned action. If an Applicant is not rostered for a specific Job Opening, but rostered for similar functions, and did not apply for the Job Opening she/he has generally no standing to bring a claim based on her/his roster membership. An applicant has no standing to bring a claim in the absence of her/his application if her/his justification is based solely on her/his subjective assessment of her/his eligibility and a suspicion that the Job Opening will be cancelled or is flawed.

Outcome
Dismissed as not receivable

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The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.

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