����AV

Right to have a request for exception considered. In Hastings UNDT/2009/030, affirmed by the Appeals Tribunal in Hastings 2011-UNAT-109, the Dispute Tribunal found that although an administrative instruction such as ST/AI/2010/3 is not of itself a staff rule, it is subject to staff rule 12.3 (b) on exceptions. Further, sec. 6.1 of ST/AI/2010/3, notwithstanding the unconditional language of “shall not”, is still susceptible to exception. If a staff member requests an exception to sec. 6.1, the decision-maker, in the words of the Dispute Tribunal in Hastings, “is obliged to turn his or her mind to the factors which are relevant to the decision to be made”.Scope of discretion when considering an exception request. In view of sec. 6.1 of ST/AI/2010/3 categorically providing that staff members shall not be eligible to apply for positions more than two levels higher than their personal grade, the Administration’s scope of discretion for granting an exception to this rule, and thereby allowing a staff member to nevertheless apply for such positions, must be extremely limited.Provision of reasons, timing of. An applicant has the right to be provided with the grounds for an administrative decision in a proper and timely manner. Every administrative decision entails a reasoned determination after consideration of relevant facts since there is a duty on institutions to act fairly transparently and justly in their dealings with staff members (Obdeijn UNDT/2011/032). Without knowing the basis for the contested decision, the staff member may not be able to effectively challenge it, and the office responsible for carrying out the, in many cases mandatory, management evaluation will not be able to examine its propriety and lawfulness. Reasons must generally be disclosed at the time of the notification of the decision, and most certainly must be disclosed when requested by the staff member. In this way, an applicant will be apprised whether he should request management evaluation. Further, the purpose of management evaluation is to give management a chance to correct an improper decision and to provide acceptable remedies in cases where the decision was flawed. In a case such as this, the decision-maker must, of necessity, “turn his or her mind to the factors which are relevant” at the time of considering the request for an exception, and provide a reasoned decision upon rejection of the request.