2023-UNAT-1371, Enrico Muratore Aprosio
The UNAT denied the Appellant’s request for an oral hearing. It found that it would add nothing to his case presented in writing to hear from him in person and that an oral hearing would not assist in the expeditious and fair disposition of the case.
The UNAT held that much of the submissions advanced by the Appellant did amount to a resubmission of the case put to the UNDT but which it did not accept.
The UNAT found that the WSSCC structure was closed down on 31 December 2020 at the instigation of its donors and replaced by another organisation (the Sanitation and Hygiene Fund). It recalled that the administrative decision challenged by the Appellant was the non-renewal of his fixed-term appointment after the WCCSS ceased to exist on 31 December 2020. The UNAT concluded that although the Appellant no doubt believed sincerely that this contested decision was tainted by bias and bad faith, was taken against him for his numerous and very serious complaints about the corrupt practices and/or self-serving interests of others in WSSCC, proof of these beliefs must be established to a high degree, which it had not been, even discernibly. Therefore, the UNAT found that the Appellant had not demonstrated that the abolition of his post with WSSCC was not part of a genuine restructuring by UNOPS, or that it was undertaken in violation of his due process rights or in a way that overcame the principle that fixed-term appointments carry no expectation of renewal.
The UNAT dismissed the appeal and affirmed Judgment No. UNDT/2022/065.
The Appellant, a former staff member of the UNOPS contested the decision of the Administration not to renew his fixed-term appointment with the WSSCC, a UNOPS-hosted entity, when it expired on 31 December 2020. In its Judgment No. UNDT/2022/065, the UNDT found that the evidence showed that the restructuring exercise was genuine. It further concluded that contested decision was lawful and not flawed by procedural irregularities or tainted by bias, prejudice, or improper motives and, therefore, dismissed the Appellant’s application.
Article 8(2) of the Appeals Tribunal Statute establishes a test of necessity in deciding whether the appearance of any person at the hearing of an appeal should be allowed. Article 18 of the Appeals Tribunal Rules of Procedure provides more particularly that an oral hearing may be directed if such hearing would assist in the expeditious and fair disposal of the case. The UNAT is not permitted to hold a hearing of the evidence of witnesses. If it is appropriate that such evidence be heard, pursuant to Article 2(5) of the Appeals Tribunal Statute, the case must be remanded to the Dispute Tribunal for it to do so.
An appeal is not a rehearing of the issues that were put forward before the UNDT. However, an appellant alleging error by the UNDT will often have no alternative than to readvance the original argument either to establish error in the UNDT judgment, or to otherwise enable the Appeals Tribunal to determine the consequence on appeal of an apparent error. It is therefore not sufficient for the Secretary-General to simply contend that an appellant’s submissions should be dismissed as they are merely a reiteration of the arguments made at first instance. More nuanced approaches and analyses are often required.
The first instance tribunal is not required to address expressly each and every argument or piece of evidence put before it.
Not every procedural unfairness or denial of due process will mean that a non-renewal decision is invalidated, that the non-renewal was unlawful, and that the staff member is entitled to remedies.
Breach of a directory provision, that is a failure to do something that the Organisation was required to do in relation to the decision affecting the staff member, may warrant judicial intervention: a lesser breach of a discretionary power having lesser consequences may not.
Fixed-term appointments do not carry any expectation of renewal. However, non-renewal decisions can be challenged on grounds of unfair, unjust or non-transparent action by the Secretary-General or if there was bias, prejudice or improper motivation in these decisions. Short of such considerations being established, the correctness of the decision by the Secretary-General cannot be questioned or second-guessed by the tribunals and their judgments cannot be substituted for the proper exercise of the Secretary-General’s discretion. The tribunal may examine the circumstances surrounding the non-renewal or conversion of an appointment, to ensure that the impugned decision was not tainted by any abuse of authority.
With respect to determining a “genuine” restructuring, genuineness is an attribute that ensures that the restructuring is not a charade to achieve an ulterior motive, for example to get rid of staff members whom the Organization no longer wishes to employ. But even a genuine restructuring can still be a vehicle to achieve an ulterior goal in relation to individual staff members, if their selection for non-renewal is proven to have been motivated by considerations which are extraneous to the restructuring. Thus not only must a restructuring be for genuine reasons, but individual decisions affecting individual staff members thereunder must be undertaken genuinely and lawfully.