UNDT/2020/051, Hassan
The various justifications given by the Administration suffered from inconsistencies and inaccuracies and not fully supported by the facts. However, the Tribunal finds that the Applicant failed to show that the decision was ill-motivated as alleged. The decision is unlawful. Reinstatement is not possible because the relevant office is closed. The Applicant did not prove that the harm was directly caused by the contested decision and therefore rejects his claim for moral damages.
The Administration’s decision not to renew the Applicant’s fixed-term appointment.
The applicant must identify and define the administrative decision that the applicant wishes to contest. The Dispute Tribunal has the inherent power to individualize and define the administrative decision challenged by an applicant and to identify the subject(s) of judicial review and as such may consider the application as a whole in determining the contested or impugned decisions to be reviewed. Expiration of appointment is distinct from termination of appointment. A fixed-term appointment does not carry any expectancy of renewal and expires automatically without prior notice on the expiration date. The Administration is required to provide a reason for such a non-renewal upon the affected staff member’s request or the Tribunal’s order. When a justification is given by the Administration for the exercise of its discretion it must be supported by the facts. An international organization necessarily has power to restructure some or all of its departments or units, including through the abolition of posts. The Tribunal will not interfere with a genuine organizational restructuring even though it may have resulted in the loss of employment of staff. However, like with any other administrative decision, the Administration has the duty to act fairly, justly and transparently in dealing with staff members. the Dispute Tribunal determines if the decision is legal, rational, procedurally correct, and proportionate. The Tribunal can consider whether relevant matters have been ignored and irrelevant matters considered, and also examine whether the decision is absurd or perverse. But it is not the role of the Dispute Tribunal to consider the correctness of the choice made by the Secretary-General amongst the various courses of action open to him. Nor is it the role of the Tribunal to substitute its own decision for that of the Secretary-General. In-lieu compensation, an alternative to rescission, “should be as equivalent as possible to what the person concerned would have received, had the illegality not occurred. Compensation for harm should be supported by evidence, and should be supported by three elements: the harm itself, an illegality, and a nexus between them, and the claimant bears the burden of proof to establish that the harm is directly caused by the Administration’s illegal act. The testimony of the complainant is not sufficient without corroboration by independent evidence.