UNDT/2018/030, Cardwell
The Tribunal notes that, while the non-selection decision is not explicitly mentioned in the Applicant’s list of impugned decisions in his management evaluation request, it could be regarded as subsumed under the description of “preselecting particular posts to go to external candidates” and the suggestion that the process was not transparent but “opaque”. The Applicant did request management evaluation of the non-selection decisions and that his claim in this regard is receivable pursuant to art. 8.1(c) of the Dispute Tribunal’s Statute and staff rule 11.2(a). As the Applicant failed to request management evaluation of the decision not to renew his contract, his claim in this regard is not receivable under art. 8 of the Dispute Tribunal’s Statute and staff rule 11.2(a), as well as the relevant jurisprudence. Based on the list of agreed facts set out in the parties’ joint submission dated 20 May 2016, the Respondent has minimally demonstrated that the Applicant received a full and fair consideration selection process for the Deputy Director post at the P-5 level. It is therefore for the Applicant to show with clear and convincing evidence that the selection process was motivated by bias in favor of an external candidate. As the Respondent has made no concessions in this regard and the Applicant has provided no evidence whatsoever to corroborate this contention, his claim regarding bias in the selection process for the Deputy Director post at the P-5 level must fall.
Non-selection in a retention exercise and the non-renewal of a fixed-term contract.
Defining the scope of a case: When deciding on the scope of the case, the Tribunal is not limited to the parties’ own identification and definition of the contested administrative decision(s) and may, based on the submissions, seek to identify the subject(s) of judicial review by itself. The administrative decision(s) subject to a management evaluation: The nature and contents of a management evaluation response is indicative of what matters were considered in answer to a request for management evaluation. Alleged bias in a selection procedure: Generally speaking, when candidates have received fair consideration, discrimination and bias are absent, proper procedures have been followed, and all relevant material has been taken into consideration, the selection or promotion should be upheld.