UNDT/2013/097, Rahman
The Applicant argues that his non-selection for the D2 post constitutes an act of retaliation for having denounced misconduct on the part of UNCTAD Officials. Since the two applications relate to the situation faced by the Applicant subsequent to the admitted retaliation, the Judge decided that it was necessary to join the two applications and to render one single Judgment. The Tribunal found that the Applicant had not proven and the file did not allow concluding that the decision not to select him to the D2 post was based on extraneous factors or illegal. It further found that the SG had fulfilled his obligations, except one, which was to inform the Applicant of the sanctions imposed upon the staff members who were the authors of the retaliation.
The Applicant, a staff member at the D1 level at the United Nations Conference on Trade and Development (UNCTAD), contests in his first application his non-selection for a D2 Director post, UNCTAD (contested post). In his second application, the Applicant initially contested the decision of the Secretary-General of the United Nations (SG) to reassign him from New York to Geneva, while subsequently – after that decision had been abrogated – the Applicant held that the SG did not implement the measures which the UN Ethics Office had recommended as a consequence of the retaliation by two UNCTAD Officials of which it had found the Applicant was a victim.
Right to investigation report in case of retaliation: An Applicant, who was admitted by the Ethics Office as a victim of retaliation, is entitled to receive copies of the relevant investigation reports of the OIOS and to be informed about the sanctions inflicted upon the authors of the retaliation. The burden of proof of retaliation lies on the Applicant: Even if the retaliation against the Applicant, as admitted by the Ethics Office, is not questioned by the Tribunal, it falls on the Applicant to prove that he was also the victim of retaliation by the members of the interview panel, with respect to his evaluation during the interview for the contested post. Finding of irregularity cannot be based on pure speculation: The Tribunal finds that the members of the interview panel have to be considered, a priori, to be in good faith and the Tribunal cannot base itself on pure speculations to conclude that the selection procedure was vitiated, even though the context could make it believe that irregularities occurred. Obligation of SG in case of retaliation: Though the SG is not obliged to follow all the recommendations of the Ethics Office in case of retaliation, he has to do everything possible to ensure that the concerned staff member is put back, as soon as possible, in an appropriate working environment. Scope of the Tribunal’s jurisdiction: The Tribunal can, on the one hand, only decide on the legality of decisions which were the subject of management evaluation and which were subsequently contested in front of the Tribunal; and, on the other hand, it can only decide on damages which result directly from such decisions.
Only spec. perform. (incl. rescission with $ alt.)