����AV

Where a member of an assessment panel is conflicted, s/he cannot take part in the selection process. It is irrelevant for the outcome of the present case, that the Head, PMCS, and the Director, DESS, confirmed in their evidence to the Tribunal that they did not feel any bias or resentment against the Applicant. Indeed, a subjective feeling is irrelevant and the question of impartiality or bias has to be analysed from the point of view of a fair-minded objective observer. It is also irrelevant whether the Applicant had a subjective feeling that one or more of the Panel members were biased against him. What is determining is solely whether, on the basis of the available evidence at the time and from the perspective of a fair-minded objective observer, a reasonable perception of bias of one or more of the Panel members against the Applicant existed. The Head, PMCS The Head, PMCS, admitted that he had professional disagreements with the Applicant, but also clarified that the change in the reporting lines was suggested to improve the workflow and motivation of the team. He also explained that the Applicant had some “communication problems” with his team, and that he, as a manager, tried to solve those issues while, at the same time, ensuring that the productivity of the team was improved or upheld. He also underlined that despite those professional disagreements, he never felt biased against the Applicant and recognised his competence, dedication and professionalism. The above matters constitute mere professional disagreements, and maybe performance issues, which in and of themselves cannot lead to a reasonable conclusion of actual or perceived bias against the Applicant. The Applicant’s complaint for harassment The Applicant asked the IGO to put the complaint for harassment on hold and did not, at any point in time, request the IGO to take the matter up again. The Head, PMCS, was not informed of it. Thus, in light of the confidentiality of the complaint, it cannot be taken into account to assess whether a fair-minded observer would have found that the appearance of a potential conflict of interest existed. The Applicant’s request for management evaluation of August 2015 On the basis of these strong issues raised in the request for management evaluation alone, the impartiality of the Head, PMCS, in assessing the Applicant was open to question on reasonable grounds. This, together with the above work-related disagreements between the Applicant and the Head, PMCS, are grounds that, under the Finniss test, called for the Head, PMCS, to recuse himself. It would have been sound management to replace the Head, PMCS. However, by not undergoing the interview, the Applicant precluded the Tribunal from concluding whether the composition of the panel was a determining factor for his non-selection to the D-1 position. Moreover, there is supporting evidence in this case that the Head, PMCS, gave positive references about the Applicant’s experience and professionalism, even after his separation from UNHCR. Disagreement on the restructuring exercise As this Tribunal found in judgment Loeber UNDT/2017/073, the restructuring exercise of PMCS was genuine. The restructuring decision was taken by the High Commissioner, UNHCR, and can, in no way, serve to make any findings as to the perceived or actual conflict of interest of the Head, PMCS, vis-à-vis the Applicant. The Director, DESS The Director, DESS, was based in Geneva and, thus, did never directly work with the Applicant, whose duty station was in Budapest. The facts concerning the involvement of the Director, DESS, in the restructuring process do not allow any reasonable conclusion to establish the existence of an actual or perceived bias on her part against the Applicant. In light of the circumstances, the fact that the Director, DESS, as hiring manager for the D-1 position, decided to remain on the Panel, was reasonable. The Head, SMLS No evidence whatsoever was produced either in the case file, or at the hearing, to allow the Tribunal to conclude that a fair-minded observer would have concluded that there was a real possibility that he was biased against the Applicant. DESS response to the Applicant’s request for recusal Suggesting to the Applicant to contact Legal Affairs Section was reasonable, and provided the Applicant with a procedural safeguard in case he wished to contest the selection process after undergoing the interview. “Oral hearing” with the Deputy High Commissioner Although it would have been a good management practice to give the Applicant the opportunity to meet with the Deputy High Commissioner, whether to grant or not such a meeting falls under the discretionary powers of the Organization and cannot be sanctioned by the Tribunal. Selected candidate Although the selected candidate was not a UNHCR staff member, she was eligible to apply for internally advertised vacancies pursuant to para. 20 of the Revised Policy and Procedures of Assignments. Furthermore, as a female candidate, she had priority in accordance with the Policy on achieving Gender Equity in UNHCR Staffing. Is the Applicant entitled to a remedy? Notwithstanding its conclusion that it would have been sound management to replace the Head, PMCS, in the Panel, the Tribunal finds that the presumption of regularity of the decision not to select the Applicant prevails. The fact the Applicant refused to go to the interview did not allow the Tribunal to assess the impact of the Panel composition on the outcome of the selection process. In light of all the circumstances, the Tribunal is satisfied that the Applicant’s candidature received full and fair consideration. It follows that the Tribunal cannot grant the Applicant any remedy.