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The Tribunal found that the decision to reassign the Applicant was an unlawful exercise or the Administration’s discretion because, although the decision was based on her alleged poor performance, the Applicant’s performance had never been evaluated in accordance with the established procedures. The subsequent decision not to renew her contract was flawed for the same reason. Whilst the official reason given was that the Applicant did not accept the post offered or apply for another one, the Tribunal found that the non-renewal decision was motivated by the Applicant’s supervisors’ assessment...

The Tribunal held that the Organization has a discretionary power to organize its work and offices. However, it reiterated the general principle that such a power is not absolute; the Organization has the authority to reorganize an office and terminate a staff member’s contract so long as that the decision is not tainted by extraneous factors or improper motives. Based on the facts and evidence adduced by the parties, the Tribunal found that the decision to phase out the programme for which the Applicant had been recruited had been made on the basis of an evaluation made by external...

The procedures set out in ST/AI/2002/3 on the performance appraisal system were not complied with. While section 8.3 requires that as soon as a performance shortcoming is identified, the first reporting officer should discuss the situation with the staff member and take steps in consultation with him/her to rectify the situation, in the present case the Applicant received the rating “partially meets performance expectations” without being informed through the performance appraisal system of his shortcomings and thus without being given the opportunity to improve his performance. Since the...

The issues before the Tribunal were whether the Applicant had a legal expectancy of renewal; whether the abolition of the Applicant’s post was a valid exercise of the Organization’s discretion; and whether the Applicant was fully and fairly considered for the newly created posts following a restructuring within the Organization. Outcome: The application failed and was dismissed.

Review of the motivations behind the contested decision: Circumstances intervening after the contested decision was taken may not be considered as showing the motives put forward by the Administration to be false. Even if it was proved that an evaluation of the Applicant’s performance was conducted after his separation, this is not pertinent in examining the decision not to renew his contract, inasmuch as the motive provided therefor was not unsatisfactory performance. Scope of review by the Tribunal: It is not for the Tribunal to determine, when the Administration decides to close one of its...

Grounds for non-renewal: No provision requires the Administration to give the reasons for a non-renewal decision. However, when a staff member contests the non-renewal of his or her contract before the Tribunal, the Organization must provide the reasons for this decision and the staff member has the right to contest the legality of the same.Discretionary power and scope of judicial review: The Administration has discretion to organize its services and thus to finance or not a programme. It is not for the Tribunal to assess the correctness of this kind of decisions.Burden of proof of extraneous...

Due process: The evaluation of the Applicant’s performance for the 2008/2009 reporting cycle was not carried out in accordance with the established procedures and materially discredits the Respondent’s case. UNON had an obligation to defer the non-renewal decision until the rebuttal process had been completed but failed to do so. This was a violation of the Applicant’s due process rights. Bad faith: The negative relationship between the Applicant’s former FRO and SRO was contributory to the non- renewal of the Applicant’s contract. The Applicant’s SRO demonstrated ill-motive and unethical...

Reasons for non-renewal: A staff member has a right to ask the administration to provide for reasons of non-renewal of his/her contract; if he/she does not ask, then he/she cannot claim not to have been given reasons for the decision and seek to infer negative inference. Fraught working relationship: If a staff member’s work relationship with his/her superiors has deteriorated to the extent that there is no possibility of salvaging such a relationship, it is within the Administration’s discretion not to renew such a contract.

Staff rule 12/3(b) – exception to staff rules: The Tribunal held that under the unique circumstances of this case, that is, the requests from MINURSO recognizing the Applicant’s suitability for the post and the Mission’s dire operational needs, for the Respondent to have properly complied with staff rule 12.3(b), the Applicant’s existing educational qualifications along with his professional qualifications and language skills should have been considered regardless of whether or not they were equivalent to a high school diploma.

He alleged that the non-renewal of his appointment was based on discriminatory grounds, i.e. because of his Kurdish ethnicity, and not for reasons of force majeure, namely due to the occurred earthquake, leading to the subsequent closure of the UNHCR office in Van/Turkey. The UNDT found that the decision not to renew his appointment was lawful, as the Applicant failed to adduce evidence of any breach of his rights.