UNDT/2021/034, Khan
Regarding the removal of the hiring manager from the interview panel, despite an alleged procedural irregularity, the Applicant successfully passed a competency-based interview and was recommended for the Post. Therefore, the Tribunal finds that the Applicant failed to show that the removal of the hiring manager from the interview panel affected her right to full and fair consideration. Regarding the failure to consult with the hiring manager in making the selection decision, the Applicant fails to explain how the failure to consult with the hiring manager adversely affected her right to full and fair consideration. As stated above, it is not enough to claim that there was a procedural irregularity; the applicant needs to show an alleged procedural irregularity was determinant on the outcome of the contested decision, which the Applicant has failed to show. Regarding the Applicant’s claim that the CMS failed to consider her gender in the selection decision in an appropriate manner, since the applicable law ST/AI/1999/9 (Special Measures for the Achievement of Gender Equality) was not applicable, the Administration’s failure to consider the Applicant’s gender in the selection decision did not violate the Applicant’s right to full and fair consideration. Regarding the Administration’s consideration of seniority and career advancement of the final two candidates in making the final decision, by considering the seniority and career advancement of the two candidates in the selection decision to the detriment of the Applicant, which are irrelevant matters in the selection decision, the Applicant’s right to full and fair consideration was violated. Regarding the claim that the Administration showed bias against the Applicant, the Applicant did not present any evidence to show that the decision maker was biased against her. Instead, she urges the Tribunal to draw an inference of bias based on the CMS’s actions. However, considering that the burden of proving any improper motives rests with the Applicant, the Tribunal finds that the Applicant failed to meet such burden. In conclusion, since the Administration considered irrelevant matters in the contested selection decision that had a detrimental effect on the Applicant’s candidacy, the Tribunal finds that the Administration failed to show that the Applicant was afforded full and fair consideration in the selection exercise for the Post. The contested decision is therefore unlawful. As one of the two recommended candidates, the Applicant clearly had a significant chance for selection. Therefore, the Tribunal orders the rescission of the contested selection decision. Since the Applicant was among two recommended candidates, she had a 50 per cent chance of selection for the Post. As the Applicant served on a fixed-term appointment, her income loss is to be determined as 50 per cent of the difference between her net base salary at the GS-5 level at the time of the contested decision and the net base salary she would have obtained at the GS-6 level for two years, since fixed-term appointments are regularly granted for such a period.
Non-selection decision.
It is well established that the Secretary-General has broad discretion in matters of staff selection. When reviewing such decisions, the Tribunal shall examine “(1) whether the procedure as laid down in the Staff Regulations and Rules was followed; and (2) whether the staff member was given fair and adequate consideration”. If the management is able to minimally show that an applicant’s candidature was given full and fair consideration, the burden of proof shifts to the applicant who then must show through clear and convincing evidence that he or she was denied a fair chance of selection. As the Appeals Tribunal held in Faust 2017-UNAT-778, to find that an applicant’s right to full and fair consideration was violated, an applicant needs to show that an alleged procedural irregularity led to a contested non-selection decision. In other words, the alleged procedural irregularity must have been “determinant on the outcome of the present selection process”. When judging the validity of the Secretary-General’s exercise of discretion in administrative matters, “[t]he Tribunal can consider whether relevant matters have been ignored and irrelevant matters considered”. Under the jurisprudence of the Appeals Tribunal, if an applicant claims that the decision was ill-motivated or based on improper motives, the burden of proving any such allegations rests with the applicant. Under art. 10.5(a) of its Statute, the Tribunal has the statutory discretion to rescind the contested decision or order specific performance, but as the Appeals Tribunal stated, the rescission can be ordered only when a staff member would have had a significant chance for selection. Since the contested decision concerns “appointment, promotion or termination”, under art. 10.5(a) of the Statute, in ordering the rescission the Tribunal must set an amount of compensation in lieu of rescission or specific performance, which needs to be supported by evidence. As stated by the Appeals Tribunal, in lieu compensation shall be the economic equivalent for the loss of a favourable administrative decision.