����AV

[Case UNDT/GVA/2009/33] The APPC omission to inform the applicant that his supervisor had sent a letter to it concerning his employment and to share its content with him does not constitute an administrative decision within the meaning of article 2.1 (a) of the Tribunal’s Statute. It thus falls out of the jurisdiction ratione materiae of the UNDT. The decision not to renew the applicant’s contract was already taken at that point. Hence, the letter to the APPC was merely internal communication; at the highest, it could be regarded as one step in a complexe procedure. [Case UNDT/GVA/2009/40] The burden of proving that the non-renewal decision was tainted by improper motivation was borne by the applicant alleging so. The applicant did not demonstrate that the reason behind the contested decision was his disagreement with management on the audit report. He relied exclusively on a sequence of events, some of which are not verifiable, and which do not constitute, in any case, sufficient basis to substantiate the said allegations. On the other hand, the Administration failed to substantiate the purported reason for the decision, i.e. bad performance, as it was unable to provide any concrete details or instances of incidents of poor performance by the applicant, let alone any conclusive pertinent document; it submitted only unsupported general statements unilaterally asserted by his supervisor, who was, moreover, absent from the office most of the time during the last months. In this respect, the Tribunal reiterated that, whilst the Administration is not bound to provide a justification for not extending a fixed-term appointment, where it chooses to give a motive therefor, the reason alleged must be supported by facts. In addition, the record shows that the applicant’s supervisor failed to provide him with the warnings and guidance that any manager should give in case of concerns about a staff member’s performance. The non-renewal of the applicant’s contract was, consequently, not in conformity with his terms of appointment. A decision not to renew an appointment concerns “appointment” for the purposes of setting a compensation to be paid in lieu of effectively rescinding an illegal decision under article 10.5 (a) of the Tribunal’s Statute. The length of the appointment that the applicant would have likely obtained had the contested decision not been taken is an appropriate basis to calculate such an alternative compensation. Outcome: The application concerning the letter to the APPC was rejected as irreceivable. The Tribunal rescinded the decision not to extend the applicant’s fixed-term appointment, setting an alternative compensation of four months’ net base salary. The compensation already awarded by the Secretary-General was not changed.