2016-UNAT-624, Simmons
UNAT considered the appeal by the Secretary-General. UNAT held that the lateral reassignment of a staff member, in this case, fell entirely within the discretion of the Administration. UNAT found no evidence of arbitrary and unlawful exercise of discretion in the appeal which could allow UNDT to pronounce on the discretion of the Administration. Finding no illegality and no evidence that the cancellation of the job opening had an adverse effect on the staff member’s morale and professional reputation, UNAT vacated the award of compensation. UNAT upheld the appeal and vacated the UNDT judgment.
The Applicant contested the decision to cancel the JO 24760 and to fill the post through a lateral transfer. UNDT found that the Administration’s decision to cancel JO 24760 was lawful. UNDT further found no evidence that the decision was based on extraneous motives such as the intention to block the Applicant from being promoted or to accommodate the lateral reassignment of Ms CP. UNDT, however, found that the decision to laterally reassign Ms CP to the position was unlawful and constituted an arbitrary use of the Administration’s discretion. UNDT awarded compensation to the Appellant for the breach of her rights to be fully, fairly, and timeously considered for the position.
The Administration has broad discretion in relation to the internal Organisation of its units and departments. The Administration has the power to restructure and reorganize its units and its departments to lend to greater efficiency. It is therefore not within the remit of UNDT to pronounce on the exercise of this discretion to determine whether rostered candidates should be considered and other internal management issues. This can only be done if there is evidence before the UNDT of arbitrary and unlawful exercise of discretion.