UNDT/2022/105, Nega
The Applicant was found suitable for available positions. Indeed, for one job opening, he was one of the eight candidates short-listed and convoked to interview. By shortlisting him, the Administration tacitly acknowledged that he was deemed suitable for the position; per Timothy UNDT/2017/080, as a continuing appointment holder facing termination, the Administration was obliged from that point to consider his candidacy on a preferred, non-competitive basis.
The Tribunal found that the Administration failed in its obligation to make good faith efforts to absorb the Applicant into a new post after it decided to abolish his existing post.
The Applicant held roster memberships for various D-1 posts which meant that he met the requirement or possessed the specific qualifications for the related job opening. This obviated the requirement for him to express interest in available positions, but not necessarily applying to them but also responding favourably to offerings by the Administration.
The Tribunal held that the determination of the compensation in lieu between the minimum and the maximum provided in its Statute must take into account the specific circumstances of the case, and in particular the type and duration of the contract held by the staff member, the length of his/her service, and the issues at the base of the dispute. The compensation in lieu is not related to the economic loss suffered and to the salary of the staff member. There can be compensation in lieu also in a case where no economic damage has been suffered.
The Applicant challenged the Administration’s refusal to “make good faith efforts to absorb him on to a new post after it decided to abolish his existing post.
The Organization shall not terminate the appointment of a staff member whose post has been abolished, at least if he or she holds an appointment of indeterminate duration, without first taking suitable steps to find him/her alternative employment. Compliance with this rule is relevant in assessing the lawfulness of the termination decision
When an organisation must abolish a post held by a staff member who, like the complainant in the instant case, holds a contract for an indefinite period of time, it has a duty to do all that it can reassign that person as a matter of priority to another post matching his or her abilities and grade. Furthermore, if the attempt to find such a post proves fruitless, it is up to the organisation, if the staff member concerned agrees, to try to place him or her in duties at a lower grade and to widen its search accordingly.
Simply advertising posts and requiring the concerned staff member to apply and compete for the same does not discharge the burden of the Administration. The Administration is bound to assign the affected staff members holding continuing or indefinite appointments on a preferred basis in the order of preference prescribed in Staff Rule 9.6.
Compensation in lieu per art. 10.5 is not compensatory damages based on economic loss, but only the amount the administration may decide to pay as an alternative to rescinding the challenged decision or execution of the ordered performance.