UNDT/2020/030, Handy
If the comments in a satisfactory performance evaluation do, in fact, detract from the overall rating, they oppositely must constitute a final, and therefore also appealable, decision. If a staff member were not to be granted access to judicial review by this Tribunal of whether disparaging comments detracted from the provided ratings of “successfully meets performance expectations”, such comments would be entirely shielded from any scrutiny whatsoever and their legality would never be capable of any review at all. Accordingly, a central purpose of ST/AI/2010/5 namely, ensuring accountability, would be subverted. The application is therefore receivable. The gist of the FRO’s comments does not reflect the overall reating of the performance appraisal. The Tribunal finds that the narrative comments in the ePAS detracted from overall rating “successfully meets expectations”. The decision to include such comments was ultra vires and exposed the Applicant per se to adverse career consequences and unfairly deprived him of a right to rebuttal. The Tribunal therefore orders that the Applicant’s 2016-17 performance appraisal be amended in a manner to ensure that the narrative comments no longer detract from the provided ratings and that the Applicant is thereafter left with all proper due process rights.
The decision to subvert the intention of ST/AI/2010/5 (Performance Management and Development System) by awarding him a “successfully meets expectations” rating in his 2016-2017 performance appraisal while inconsistently including “disparaging comments in his evaluation”.
A comment made in a satisfactory appraisal is not a “final administrative decision” if it does “not detract from the overall satisfactory performance appraisal and [has] no direct legal consequences for [the staff member’s] terms of appointment”. The discretionary power of the Administration is never unfettered. The scope of the Dispute Tribunal’s judicial review is to determine whether an administrative decision must be “reasonable and fair, legally and procedurally correct, and proportionate”. The very purpose of compensation is to place the staff member in the same position he or she would have been in had the Organization complied with its contractual obligations.