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UNDT/2019/180

UNDT/2019/180, Ross

UNAT Held or UNDT Pronouncements

Nowhere in the Policy is using interviews or written test to appraise the competencies and/or qualifications of job candidates prohibited or even as much as discouraged. Rather, interviews are mandatory when “the appointment of an external candidate is being considered” as it is stated that in such circumstances “the applicants (external and internal) selected by the manager will be interviewed” (emphasis added). It is further stated that a “[w]ritten test may be required” (see sec. 71). No matter what the Applicant’s status was at the time of the selection process, the fact that the UNHCR policies make no specific stipulations about whether skills, competencies and qualifications of job candidates can be tested through interviews and written tests does not mean that such methods cannot be used to assess their suitability for a specific post. This is the only logical conclusion with reference to art. 101.3 of the United Nations Charter and staff regulation 4.3 and the requirement that the highest standards of efficiency, competence, and integrity should be secured—indeed it would appear very difficult, if not impossible to assess skills such as teamwork and emotional intelligence only on the basis of a job application. Or, as stated in the Policy, sec. 79A, “The operational context related to the particular position should be taken into account. The managers’ specific position profile requirements shall be given due consideration”. Any priority treatment would only be pertinent insofar as both candidates at the same and the lower level as the post are actually found suitable—if any job candidate at the same level is found unsuitable, it makes no sense to grant her/him any further preference. By a minimal showing, the Respondent demonstrated that the Applicant’s candidature was given full and fair consideration. It is not for the Tribunal to replace the decision-maker in her/his substantive assessment of the qualifications of a job candidate against the job profile. Since the Applicant was found unsuitable for the Post based on a process which included assessment of grade, performance, and relevant competencies and skills and applying the UNHCR selection policy to the Applicant’s job application, he would never have had any foreseeable and significant chance for selection.

Decision Contested or Judgment Appealed

The decision to appoint another candidate to the position of Senior Legal Officer, P-4 level, Brussels.

Legal Principle(s)

The Dispute Tribunal has the inherent power to individualize and define the administrative decision challenged by a party and to identify the subject(s) of judicial review. When defining the issues of a case, the Dispute Tribunal may consider the application as a whole. The Dispute Tribunal’s judicial review is limited. The role of the Dispute Tribunal is to determine if the administrative decision under challenge is reasonable and fair, legally and procedurally correct, and proportionate. The Dispute Tribunal is not conducting a merit-based review, but a judicial review. Judicial review is more concerned with examining how the decision-maker reached the impugned decision and not the merits of the decision-maker’s decision. The principle of regularity in selection and promotion decisions. Clear and convincing proof requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt—it means that the truth of the facts asserted is highly probable.

Outcome
Dismissed on merits

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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.

Applicants/ Appellants
Ross
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