UNDT/2019/021, Bharaty
UNDT held that it was a case in which the host country was not forthcoming or did not provide reasons which justified the PNG decision. UNDT held that once the Organisation had verbally stated, determined and notified the Applicant that the allegations against her were not considered misconduct, it had a duty as per Hassouna (UNDT/2014/094) not to change the terms and conditions of her contract. UNDT held that the Secretary-General had the power to reassign the Applicant on an exceptional basis and should have done so. UNDT held that, according to Hassouna, the Organisation could not resort to the non-renewal of the Applicant’s contract. UNDT held that the Secretary-General was required to reassign the Applicant, notwithstanding that she served on a fixed-term appointment limited to a single mission (UNIFIL). UNDT held that the Applicant had a legitimate expectancy of the renewal of her appointment. UNDT held that the Applicant should have been given a one year extension in Addis Ababa or elsewhere so that she would have been entitled to the benefits and entitlements that ordinarily accompany such a contract. UNDT upheld the application, rescinded the decision and granted the Applicant one year net base salary for the loss of her contract and three months’ net base salary for unfair treatment due to the Organisation’s lack of due diligence in finding a suitable substitute assignment commensurate with the duties outlined in her original Letter of Appointment.
The Applicant contested the decision not to renew her contract in light of her having been declared PNG (or the intended statement to do so) by Lebanon, the host country in which she was working.
Absent lawful reassignment, staff members have not only the duty but the right to work in the post for which they were hired. The reassignment of staff members’ functions comes within the broad discretion of the Organisation to use its resources and personnel as it deems appropriate and such decisions may be set aside on limited grounds. When judging the validity of the Secretary-General’s exercise of discretion in administrative matters, UNDT determines if the decision is legal, rational, procedurally correct, and proportionate. Non-renewal or renewal on adverse terms and conditions is an option open to the Secretary-General depending on the circumstances surrounding the persona non grata (PNG) decision by the host country. Where the host country provides information surrounding the PNG decision and the Secretary-General decides that the staff member acted outside his or her official capacity, non-renewal is an option. Notwithstanding roster or appointment status, the Organisation has a duty to take steps to alleviate a staff member’s predicament of being expelled from a host country without justification and cannot change the terms and conditions of the staff member’s contract.