2019-UNAT-932, Kinyanjui
UNAT held that the Administration was not under an obligation to pursue a recruitment procedure once begun by filling the post. UNAT held that the contested administrative decision not to carry the recruitment process through to appointment, but rather to readvertise, was a valid and lawful exercise of the Administration’s discretion, based on sound reasons inextricably linked to the interest of the service, namely the situation in Burundi, the need for additional skills, and compliance with the relevant legal instruments governing the recruitment procedure. UNAT held that the contested decision was well-founded and justified on grounds valid in law. Regarding the Appellant’s claim that his own candidacy was suppressed for unclear reasons or extraneous motives, UNAT held that the Appellant did not rebut the presumption of regularity which attached to the selection process. UNAT held that UNDT gave careful and fair consideration to the Appellant’s arguments regarding the legality of the selection exercise. UNAT held that the Appellant failed to discharge his burden of proving through clear and convincing evidence that he was denied a fair chance of selection. UNAT held that there was no evidence that the exercise of the Administration’s discretion to select another candidate, having taken into account various factors such as seniority and experience, was abusive, arbitrary, discriminatory, or irregular. UNAT held that the procedural irregularity of the lack of a paper/audit trail could not and did not have any impact on the legality of the new recruitment process, the final selection, or of the decision of the Administration to begin a new recruitment. UNAT held that the Appellant failed to establish that UNDT committed errors on questions of fact and law such as to warrant a reversal of its judgment. UNAT dismissed the appeal and affirmed the UNDT judgment.
The Applicant contested the decision not to select him for a position for which he had applied. The recruitment had been discontinued and the post was readvertised. The original job opening had not provided information concerning operational context. UNDT found there was a lack of audit trail in the recruitment process but did not find that this procedural flaw rendered the contested decision unlawful because it did not disadvantage the Applicant’s candidature due to there being no causal link to the non-selection. UNDT held that the re-advertisement of the job opening to include the operational context did not constitute a procedural flaw and the explanations provided as to why this was necessary were sufficient for the conclusion that there had been no ulterior motive. UNDT found that the Applicant had been given full and fair consideration regarding his candidature for the re-advertised post. UNDT dismissed the application.
UNDT has broad discretion to determine the admissibility of evidence and the weight to accord to it. The findings of fact made by UNDT can only be disturbed when there is an error of fact resulting in a manifestly unreasonable decision.