UNDT/2024/063, Margieh
The Tribunal held that the decision to create the Deputy Special Representative ("DSR") post did not have any direct adverse consequences for the Applicant, who remained in employment, with the same post and ToRs; in other terms, by the establishment of the DSR post, the Applicant’s role, duties and responsibilities remained unaffected.
The Tribunal held that the Applicant had failed to identify a contestable administrative decision adversely affecting the terms and conditions of her appointment and that therefore her challenge of the DSR post was not receivable ratione materiae.
As to the decision to reassign the Applicant to a lesser post following internationalization of her post, the Tribunal noted that this decision had never been subjected to management evaluation as required under staff rule 11.2 and art. 8.3 of the Dispute Tribunal’s Statute.
The Applicant challenged what she describes as a decision to: reassign her to a lesser post following internationalization of her post by creation of a new post of Deputy Special Representative, which took away her main functions and duties as well as her leadership role in the organization as a member of the country office management team.
The decision to create a new budgeted post in the administrative structure is an exclusive prerogative of the Administration, being the way it manages and organizes its resources in its exclusive interest.
An international organization necessarily has 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.
The reorganization of the administrative structure is an administrative decision of a general nature, which produces no direct legal consequences affecting the staff member’s contract of employment or terms of her appointment.
An administrative decision that is subject to judicial review is a unilateral decision taken by the administration in a precise individual case (individual administrative act), which produces direct legal consequences to the legal order. Thus, the administrative decision is distinguished from other administrative acts, such as those having regulatory power (which are usually referred to a as rules or regulations), as well as from those not having direct legal consequences.
Administrative decisions are therefore characterized by the fact that they are taken by the Administration, they are unilateral and of individual application, and they carry “direct legal consequences” affecting a staff-member’s terms or conditions of appointment.
The Tribunals will not interfere with a genuine organizational restructuring exercise even though it may have resulted in the loss of employment of staff.