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There is no legal authority to preclude the Dispute Tribunal from determining the issue of receivability in a final decision after issuance of case management orders. Rather, Article 2(6) of the UNDT Statute provides that “[i]n the event of a dispute as to whether the Dispute Tribunal has competence under the present statute, the Dispute Tribunal shall decide on the matter”. This is because the Dispute Tribunal’s competence is entirely based on an application being receivable pursuant to the requirements of the applicable legal framework.  The determination of its competence can be exercised sua sponte and even if the parties do not raise the issue, because it constitutes a matter of law, and the UNDT Statute prevents the UNDT from receiving a case which is non-receivable.   The parties do not “acquire rights” to preclude the Dispute Tribunal from determining competency as a result of case management orders being issued.  Otherwise, this would allow the parties, either deliberately or by negligence, to empower the Dispute Tribunal with jurisdiction in excess of the parameters established for it.  

As a court of first instance, the UNDT is in the best position to decide what is appropriate for the fair and expeditious disposal of a case and do justice to the parties. 

The “jurisdictional precondition” for the Dispute Tribunal is that the contested decision constitutes an administrative decision.  An administrative decision is defined as a unilateral decision of an administrative nature taken by the Administration involving the exercise of a power or the performance of a function in terms of a statutory instrument, which adversely affects the rights of another and produces direct legal consequences.  It must have a direct legal effect.  The impact or consequences of a disputed decision must be based on objective elements that both parties can accurately determine.  Speculation about potential future possible consequences for a staff member’s employment record or his reputation is an insufficient basis to conclude that a decision has had (not “may have”) a direct and adverse impact such as to be “in non-compliance with the terms of appointment or contract of employment” as contemplated in Article 2(1)(a) of the UNDT Statute.

The onus is on the staff member to show on a balance of probabilities that the impugned decision is an appealable administrative decision.   

Deciding what is and what is not a decision of an administrative nature may be difficult and must be done on a case-by-case basis and will depend on the circumstances, taking into account the variety and different contexts of decision-making in the Organization.  The nature of the decision, the legal framework under which the decision was made, and the consequences of the decision are key determinants of whether the decision in question is an administrative decision.  What matters is the nature of the function performed or the power exercised.

Only final administrative decisions with direct legal effect are subject to review. The idea is to focus judicial review pragmatically on the more important and effective administrative decisions and not on preliminary or intermediate decisions prior to a final decision being reached.  Steps, including investigative reports, that are preliminary in nature may only be challenged in the context of an appeal against a final decision of the Administration that has direct legal consequences.

A Charge Letter does not constitute an administrative decision as contemplated in Article 2 of the UNDT Statute.