UNDT/2020/194, Russo-Got
In the absence of any evidence of ongoing mediation efforts or request for suspension of deadline to file an application, the Tribunal is satisfied that the Applicant, having filed his application outside of the statutory deadline. In any event, given that the contested administrative decision was notified to the Applicant on 3 April 2019, the request for management evaluation of 8 September 2019 would have missed the 60-day deadline set in staff rule 11.2 (c) to request management evaluation. Given that settlement discussions are confidential in nature, it is the parties’ responsibility to provide evidence of such talks where needed. In the present case, the Ombundsman’s email clearly states that as far as the Office of the Ombudsman is concerned, the settlement discussions concerning the above referred two selection processes failed on the date of the email. In the absence of any contradicting evidence, the Tribunal is unable to conclude that the appeal of these two decisions is not receivable and it will proceed to review them on the merits. The Tribunal finds no indication that the Applicant possessed the desired experience in the required field. The Tribunal is therefore satisfied that the reasons provided by the Administration not to shortlist the Applicant are reasonable and supported by the evidence. The contested decision is therefore lawful. The evidence further shows that the passing scores and methodology were established ahead of the grading of the tests and the candidates’ responses were reviewed anonymously. The Tribunal finds that the administration of the written test for this position was procedurally correct and that the Applicant failed the test. As the tests were graded anonymously, the Tribunal finds no evidence of ulterior motive. The personal history form submitted by the Applicant as his candidature for this post does not list any experience in one of the required fields. The Tribunal is therefore satisfied that the reasons provided by the Administration not to shortlist the Applicant are reasonable and supported by the evidence. The contested decision is therefore lawful. Based on this evidence, the Tribunal is of the view that the shortlisted candidates demonstrated significantly more experience in senior strategic leadership positions than the Applicant with several of them having lead offices or departments. The Tribunal is therefore persuaded that the decision not to shortlist the Applicant for this post was reasonable and supported by facts, and therefore, lawful. Related
Non-selection for various positions.
A staff member is not entitled to file several requests for management evaluation with respect to an administrative decision. Also, filing a second request does not reset the clock for filing the application to the Dispute Tribunal. The Dispute Tribunal’s judicial review is limited. In general, 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 will not conduct a merit-based review, but a judicial review which is more concerned with examining how the decision-maker reached the impugned decision and not the merits of the decision-maker’s decision. In light of the Administration’s broad discretion in selection matters, these types of decisions are governed by the so-called “principle of regularity”. This means that if the Respondent is able to even minimally show that an applicant’s candidature was given a full and fair consideration, then the presumption of law stands satisfied. To rebut this minimal showing, the applicant must then show through clear and convincing evidence that s/he was denied a fair chance of promotion in order to win the case. In terms of the discretion vested in the Administration, under Article 101(1) of the United Nations Charter and Staff Regulations 1.2(c) and 4.1, the Secretary-General has broad discretion in matters of staff selection. In reviewing such decisions, it is the role of the Tribunals to assess whether the applicable regulations and rules have been applied and whether they were applied in a fair, transparent and non-discriminatory manner. The Tribunals’ role is not to substitute their decision for that of the Administration. Generally speaking, when candidates have received fair consideration, discrimination and bias are absent, proper procedures have been followed, and all relevant material has been taken into consideration, the Dispute Tribunal shall uphold the selection/promotion. To minimally show that an applicant’s candidature was given a full and fair consideration, the Respondent must therefore typically, at a minimum, be able to produce a contemporaneous written record to demonstrate that the candidature of the applicant in question, as a matter of fact, received such consideration. Such written evidence can, for instance, include documentation for the established grading methodology, the applicable passing score, the actual grades given, any assessment report(s) and memoranda, and any other relevant material.