UNDT/2017/084, Zama
In the instant case, the Respondent showed that three available P-5 posts were identified as suitable to the Applicant’s qualifications and experience and that he was invited to apply for them for consideration. If the Applicant had put a foot in the door by applying to any of them, then the next stage would have been for the Tribunal to examine whether UNFPA selected a non-permanent staff member above the qualified Applicant thus denying the Applicant of the protections afforded him by staff rules 9.6(e) and 13(d). Good faith efforts on both sides means that both parties cooperate to identify suitable positions for which the Applicant would apply and then work toward the common purpose of enabling the said Applicant to enjoy the priority consideration and protection due to him under staff rules 9.6(e) and 13(d). The Applicant could not expect to enjoy the preferential treatment due to him following the restructuring and attendant abolition of his post if he was unwilling to apply for available posts. In the absence of any show of interest by the Applicant to find a new and suitable position for himself upon the abolition of his former post, the Respondent had no obligation to unilaterally proceed to place him on a new post even though he was a permanent staff member. Equity aids the vigilant.
The Applicant challenged the Respondent’s decision to terminate his appointment with UNFPA.
The obligation of good faith efforts is implicitly part of staff rule 9.6(e). The Tribunal held also that the burden of proving that the Organization made a diligent search rests with the Organization.