2021-UNAT-1083, Hejamadi
UNAT disagreed with UNDT and found the procedure laid down in the Staff Regulations and Rules was not properly followed, as such the Secretary-General’s exclusion of the staff member from the selection process was not legal, rational, procedurally correct, or proportionate. UNAT firstly held that UNDT erred when it ruled that the invitation e-mail respected the advance notice requirement. UNAT reasoned that the day of the event (the receipt of the email) cannot be counted in computing the number of days required to give advance notice for a test. As such, by requiring at least five working days, the test should have been scheduled at the earliest on Friday, 8 November 2019, and instead, it was scheduled a day earlier. More relevant to the issue at hand, UNAT held that UNDT erred when it held that the 24-hour deadline to confirm availability to participate in the test was reasonable. UNAT held that the 24-hour deadline was imposed arbitrarily, without any advance notice, and without consideration for any exceptional circumstances. As a result of this unreasonable exclusion, the presumption of regularity had not been met, and the Secretary-General had failed to minimally show that the staff member’s application was given adequate and fair consideration.
A staff member applied for a P3 Post, and as part of the evaluation process, she was invited to participate in a written exercise. She received an email invitation asking her to confirm her availability to participate in the written exercise within 24 hours. The staff member did not respond to the email the day it was received (Friday) and instead did so on the next business day (Monday). By the time she responded, the link in her email had already expired. She reached out to different officials in the corresponding unit, asking them to let her participate in the written test, but she was not given access to the test. Having not responded within 24 hours of receipt of the email, the Administration excluded her from the selection process. The staff member contested the decision of the Administration to exclude her from the selection process with UNDT, which found her application receivable as it carried immediate effects on her conditions of service. However, on the merits, UNDT ruled that the staff member was expected to diligently monitor her email to ensure a timely response to the invitation and that she did not demonstrate any exceptional circumstances that precluded her from timely responding to the invitation email. As such, she did not show that the Administration denied her full and fair consideration.
The imposition of a 24-hour deadline to respond to an email invitation to take a test is arbitrary and unreasonable. As a result of the unreasonable exclusion of a staff member’s candidacy, the presumption of regularity is rebutted, and the burden of proof is shifted to the Administration which must show that it gave the candidate fair and adequate consideration. The day of an event (or the day a notice is received) is not counted when computing the number of days required to give advance notice.
The UNDT judgment is vacated and the appellant is awarded USD 5000 for pecuniary damages.