UNDT/2020/013, Nadeau
Pursuant to staff rule 9.6(c), the Secretary-General may terminate the appointment of a staff member who, like the Applicant, holds a continuing appointment in accordance with the terms of the appointment on the grounds of “unsatisfactory service”. The Secretary-General has delegated this authority to the Under-Secretary-General for Management (USG/DM) according to annex IV on delegation of human resources authorities to ST/SGB/2019/2 regarding delegation of authority in the administration of the Staff Regulations and Rules (see p. 21). No exception to this delegation of authority is made anywhere in the legal framework governing human resources at the United Nations Secretariat with regard to staff in OIOS, including the resolutions of the General Assembly to which the Applicant refers. The Applicant did not even try to rebut any of these two performance appraisals. the Applicant therefore cannot now initiate a judicial review of any of these performance decisions within the scope of the present case, because, in the present case, the Applicant has only challenged the administrative decision regarding the termination of his continuing appointment, which follows both from the application and request for management evaluation (according to staff rule 11.2, such request would have been mandatory if the Applicant wished to challenge a performance decision). The only decision under review in the present case is the decision to terminate his continuing appointment. The termination of the Applicant’s continuing appointment followed proper procedure. The Tribunal further finds that no information and/or documentation in the case file indicate that the USG/DM was influenced by improper motivation when deciding to terminate the Applicant’s continuing appointment. The Applicant failed to substantiate that the decision to terminate his continuing appointment was tainted by ulterior motives.
Decision to terminate the Applicant’s continuing appointment.
Under Article 2(1) of the Dispute Tribunal’s Statute, only final judgments of the Dispute Tribunal are appealable but there may be exceptions to the general rule prohibiting appeals of interlocutory orders where the Dispute Tribunal has clearly exceeded its jurisdiction or competence. The receivability of an appeal against an order, as opposed to a judgment, depends on the subject-matter and the consequences of the impugned decision. Interlocutory orders issued by the Dispute Tribunal may be subject to judicial review if the final judgment is appealed. There is no urgency to review an interlocutory order prior to the handing-down of the judgment by the Dispute Tribunal, as shown in the Appellant’s circumstances. An applicant must identify an administrative decision capable of being reviewed. The Dispute Tribunal can define the administrative decision(s) and issue(s) under review by taking into account the entire application and all the various submissions made therein. An applicant cannot reopen an old separate issue in a new case. it is for the Applicant to prove that improper motivation influenced the decision-maker.