¹ú²úAV

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.