UNDT/2020/187, Fernandez Carrillo
Was the decision to abolish the Applicant’s post lawful? Given that the role of the Tribunal is not to decide whether the Administration chose the best course of action among those available to it and in the absence of evidence of illicit motive, the Tribunal finds that the decision to abolish the Applicant’s post was lawful. The Tribunal finds that the Administration has given reasons for the non-renewal of the Applicant’s contract and has shown that the decision was neither arbitrary nor improper. Did the Applicant have a right to “return to work” at the completion of her maternity leave? The Tribunal notes that the Conventions referred to by the Applicant are not applicable to the United Nations. Moreover, contrary to the Applicant’s assertions, her contract was not terminated but expired. Therefore, under staff regulation 4.5(c) and staff rule 4.13(c), she had no expectation of renewal. The Administration did not have any obligation to take steps to retain the Applicant at the end of her maternity leave. Under staff rule 9.6(e), the Administration is only duty-bound to make efforts to retain staff members whose appointments have been terminated and under a determined order of preference where fixed-term appointments rank third. As the Applicant’s fixed-term appointment was not terminated but expired, there was no obligation on the Administration to seek to retain her. The Tribunal is therefore not satisfied that the Applicant showed that the non-renewal of her fixed-term appointment beyond its expiration date was unlawful.
The Applicant filed an application to contest the decision not to renew her fixed-term appointment beyond the date of its expiration.
Staff regulation 4.5(c) and staff rule 4.13(c) both provide that a fixed-term appointment does not carry any expectancy, legal or otherwise, of renewal. Fixed-term appointments do not carry an expectation of renewal. Separation as a result of the expiration of a fixed-term appointment takes place automatically, without prior notice, on the expiration date specified in the letter of appointment. A decision not to renew a fixed-term appointment can be challenged on the grounds that the Administration has not acted fairly, justly, or transparently with the staff member or was motivated by bias, prejudice, or improper motive. An applicant bears the burden to prove such factors played a role in the contested administrative decision (see Agha 2019-UNAT-916, paras. 16-17). The Administration has the power to restructure some or all of its departments or units, including the abolition of posts, the creation of new posts, and the redeployment of staff. It is not the role of the Tribunal to interfere with a genuine organizational restructuring even though it may have resulted in the loss of employment of staff. Even in a restructuring exercise, like any other administrative decision, the Administration has the duty to act fairly, justly, and transparently in dealing with staff members (see Loeber 2018UNAT-844, para. 18). The role of the Dispute Tribunal is to determine if an administrative decision is legal, rational, procedurally correct, and proportionate. Its role is not to consider the correctness of the Administration’s choice amongst the various courses of action available. Nor is it the role of the Tribunal to substitute its own decision for that of the Secretary-General (Sanwidi 2010-UNAT-084, para. 40). A staff member bears the burden of proof to show that a decision was arbitrary or tainted by improper motives. However, the Administration’s refusal to disclose the reasons for the contested decision shifts the burden of proof so that it is for the Administration to establish that its decision was neither arbitrary nor tainted by improper motives.