UNDT/2018/136/Corr.1, Wilson
The Tribunal concludes that the Hiring Manager erred in finding that the selected candidate’s Master’s degree was related to, and therefore relevant for, any of the required specifically mentioned areas (computer science, information systems, mathematics, statistics) and wrongly determined that she fulfilled the educational requirement.; The Tribunal concludes that an additional criterion was used to evaluate only the selected candidate for the post, namely field experience, and that this criterion was not included in the Job Opening and the Hiring Manager erred in finding that the selected candidate exceeded the requirement of working experience.; In light of the Ethics Office report of 3 May 2017, the condition of impartiality of the relevant Hiring Manager, who was also the hiring manager was not respected in the present case.; The Tribunal concludes that the Applicant’s fundamental rights to be fully and fairly considered for Job Opening No. 63461 and to have an equal opportunity to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence (pursuant to art. 8 and art. 101 of the Charter of the United Nations and art. 7(c) of the International Covenant on Economic, Social and Cultural Rights), were not respected and that the contested selection decision is unlawful.; The Tribunal considers it appropriate to order the Administration to restart the selection process by conducting a de novo assessment, followed by a comparative analysis, of the rostered candidates, which fulfill/meet all the requirements as detailed in the Job Opening. As an alternative to rescinding the contested selection decision, the Respondent may elect to pay the Applicant three months of net-base salary, amount which, in line with the recent jurisprudence of the Appeals Tribunal, represents a reasonable compensation in cases of non-selection/non-promotion where the applicant was not fully and fairly considered for the post and the contested decision is not rescinded.
Non-selection for a post.
The guidelines in paragraph 9 of ST/AI/2006/3 provide that candidates need to be evaluated against pre-approved evaluation criteria. It is reasonable to expect that the selection process is not only fair but also seen to be fair. Thus, as a matter of fair process, there is no room for extraneous considerations such as bias, prejudice and discrimination. It is a general rule of law that a person called upon to take a decision affecting the rights or duties of other persons subject to his jurisdiction must withdraw in cases in which his impartiality may be open to question on reasonable grounds. It is immaterial that, subjectively, he may consider himself able to take an unprejudiced decision; nor is it enough for the persons affected by the decision to suspect its author of prejudice.; Persons taking part in an advisory capacity in the proceedings of decision-making bodies are equally subject to the above-mentioned rule. It applies also to members of bodies required to make recommendations to decision-making bodies. Although they do not themselves make decisions, both these types of bodies may sometimes exert a crucial influence on the decision to be taken. A staff member has no right to be selected for a post, but has a right to be fully and fairly considered for it. At the top of the hierarchy of the Organization’s internal legislation is the Charter of the United Nations, followed by resolutions of the General Assembly, staff regulations, staff rules, Secretary-General’s bulletins, and administrative instructions. Information circulars, office guidelines, manuals, memoranda, and other similar documents are at the very bottom of this hierarchy and lack the legal authority vested in properly promulgated administrative issuances. Circulars, guidelines, manuals, and other similar documents may, in appropriate situations, set standards and procedures for the guidance of both management and staff, but only as long as they are consistent with the instruments of higher authority and other general obligations that apply in an employment relationship. Just as a staff rule may not conflict with the staff regulation under which it is made, so a practice, or a statement of practice, must not conflict with the rule or other properly promulgated administrative issuance which it elaborates. It is also important to highlight that a distinction must be made between matters that may be dealt with by way of guidelines, manuals, and other similar documents, and legal provisions that must be introduced by properly promulgated administrative issuances. When the Administration chooses to use a procedure, it is bound to fully comply with it. According to the case law, an international organisation which decides to hold a competition in order to fill a post cannot select a candidate who does not satisfy one of the required qualifications specified in the vacancy notice. Such conduct, which is tantamount to modifying criteria for appointment to the post during the selection process, incurs the Tribunal’s censure on two counts. Firstly it violates the principle of patere legem quam ipse fecisti, which forbids the Administration to ignore the rules it has itself defined. In this respect, a modification of the applicable criteria during the selection procedure more generally undermines the requirements of mutual trust and fairness which international organisations have a duty to observe in their relations with their staff. Secondly, the appointment body’s alteration, after the procedure had begun, of the qualifications which were initially required in order to obtain the post, introduces a serious flaw into the selection process with respect to the principle of equal opportunity among candidates. The direct effect of an irregularity will only result in the rescission of the decision not to promote a staff member when he or she would have a significant chance for promotion. MEU’s decision is not an appealable decision before the Dispute Tribunal.