¹ú²úAV

2015-UNAT-506, Nwuke

UNAT Held or UNDT Pronouncements

UNAT considered both an appeal by the Secretary-General and a cross-appeal by Mr Nwuke. UNAT held that ST/AI/2003/8 was inapplicable. UNAT held that the relevant administrative instruction was ST/AI/2010/3, which integrated the recruitment, placement, promotion and mobility of staff within the Secretariat. UNAT held that, in its view, the authority to make lateral transfers to fill job openings at the same level extended to both immediate and anticipated job openings, including posts that would become vacant due to retirement. UNAT held that the impugned decision complied with the legal framework. UNAT held that UNDT erred in law when it found that the filling of the position by lateral transfer breached ST/AI/2003/8. UNAT held that it was not reasonable for UNDT to conclude that the failure to advertise the post was to prevent Mr Nwuke from applying for it, especially as Mr Nwuke’s previous complaints of harassment and retaliation against the Executive Secretary had not succeeded before the same UNDT Judge. UNAT agreed with the Secretary-General that, in the absence of additional evidence, there was no basis for the same UNDT Judge to conclude that the preponderance of the evidence established that the Executive Secretary had subjected Mr Nwuke to retaliation. UNAT held that UNDT erred in placing the burden on the Secretary-General to prove that the later transfer was not intended to block Mr Nwuke from applying for the post. UNAT held that UNDT erred in concluding that the lateral move was motivated by retaliatory intent or improper motivation on the part of the Executive Secretary. UNAT allowed the Secretary-General’s appeal, vacated the UNDT judgment and dismissed Mr Nwuke’s cross-appeal.

Decision Contested or Judgment Appealed

Mr Nwuke contested the decision to fill a position by way of a lateral transfer, without advertising it, which he considered being motivated by retaliatory intent. UNDT found in favour of Mr Nwuke.

Legal Principle(s)

The Secretary-General has broad discretion in decisions regarding promotions and appointments. The burden of proving improper motives, such as abuse of authority, discrimination, retaliation or harassment, rests with the person making the allegation.

Outcome
Appeal granted

OAJ prepared this case law summary for informational purposes only. It is no official record and should not be relied upon as an authoritative interpretation of the Tribunals' rulings. For the authoritative texts, please refer to the judgment or order rendered by the respective Tribunal. The Tribunals are the only bodies competent to interpret their respective judgments, as provided under Article 12(3) of the UNDT Statute and Article 11(3) of the UNAT Statute. Any inaccuracies in the publication are the sole responsibility of OAJ, which should be contacted directly for any correction requests. To provide comments, don't hesitate to get in touch with OAJ at oaj@un.org.

The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.