UNDT/2023/136, Koura
The Applicant failed to convince the Tribunal that the Administration raised in him a legitimate expectation of renewal of his FTA. An erroneously raised personnel action without a written contract does not constitute a ground for legitimate expectation of renewal.
The Tribunal agreed with the Applicant that the Staff Regulations and Rules must be applied uniformly and consistently to staff members. United Nations procedures exist to facilitate fair and transparent substantive decisions, and the failure to abide by required procedures is no mere “technicality”, but instead undermines substantive fairness.
Any exception to laid down procedures under the Staff Regulations and Rules must be taken fairly, justly and transparently to avoid the perception of abuse of the system and claims of bias and discrimination.
The Respondent decided to exceptionally use a “Delegated Instrument” to reassign a staff member similarly placed to the Applicant. In so doing, the Respondent, did not follow the laid down procedures for staff selection. The process was carried out without transparency. Its result was a decision, which was perceived prejudicial to the Applicant. The reason given to treat the Applicant with inequality was improper as it was not justifiable by the Staff Regulations and Rules and the procedure was not transparent.
The Tribunal found that the Applicant had successfully rebutted the presumption of regularity and proved by clear and convincing evidence that the non-renewal of his fixed-term appointment was unlawful because the rules were applied in a discriminatory manner.
The Applicant contested the decision to terminate his fixed-term appointment ("FTA") on 30 November 2021 and his non-selection for three Job Openings.
When reviewing administrative decisions of the Secretary-General, there is a presumption that the official functions have been regularly performed.
The Respondent has a minimal burden of proof to justify his actions in administrative matters. Once discharged, the burden shifts to the staff member who must show the contrary through clear and convincing evidence.
In reviewing administrative decisions regarding appointments and promotions, the factors to be considered are: (1) whether the procedure as laid down in the Staff Regulations and Rules was followed; (2) whether the staff member was given fair and adequate consideration, and (3) whether the applicable Regulations and Rules were applied in a fair, transparent and non-discriminatory manner.