¹ú²úAV

UNDT/2020/003

UNDT/2020/003, Noberasco

UNAT Held or UNDT Pronouncements

The record provided to Central Review Panel (CRB) was incomplete. The Tribunal therefore finds that the Respondent has failed to demonstrate with a minimal showing that the Applicant’s job candidature was properly assessed by a CRB. The Respondent has failed to demonstrate with a minimal showing that the Applicant received a timely notification of her application being unsuccessful. The general principle provides that the responses to a written test should be graded on an anonymous basis to give full and fair consideration to the job candidatures. Copying members of an assessment panel into an email invitation to a written test would generally appear to be unadvisable. Although the onus on the Respondent is only to prove with a minimal showing that the Applicant’s test response was assessed on an anonymous basis, the Tribunal finds that the Respondent has failed to do so. The various calculation errors in the points assigned to the Applicant’s test response cancelled out each other. The Tribunal therefore finds that while errors indeed occurred during the process, in particular the failure to provide CRP with full information of the assessment, none of these mistakes—by themselves or seen together—were of such nature to prove that any of the assessment panel members, including the hiring manager, were in bad faith. after considering both the calculation mistakes in the grading of the Applicant’s test response and the intentions of the assessment panel members, the Tribunal concludes Despite the different flaws which affected the selection process, the Applicant’s test response did receive an objective and independent assessment. Despite these regrettable flaws in the selection process, the Tribunal is, however, not persuaded that had they not occurred, the Applicant would have had a foreseeable and significant chance for promotion.

Decision Contested or Judgment/Order Appealed

Decisions (a) not to select herthe Applicant for the post of Personal Assistant to the High Commissioner of the Office of High Commissioner for Human Rights and (b) to exclude her from the recruitment process on the ground that she did not submit the written test within the specified time.

Legal Principle(s)

The role of the Dispute Tribunal is to determine if the administrative decision under challenge is reasonable and fair, legally and procedurally correct, and proportionate. The Appeals Tribunal further held that “the Dispute Tribunal is not conducting a merit-based review, but a judicial review explaining that a judicial review is more concerned with examining how the decision-maker reached the impugned decision and not the merits of the decision-maker’s decision. To even minimally show that an applicant’s candidature was given a full and fair consideration, then the presumption of law stands satisfied whereafter the applicant must show through clear and convincing evidence that s/he was denied a fair chance of promotion in order to win the case. A manual is generally not legally binding. It is for the Applicant to prove any ill intentions and circumstantial evidence may be relied on when proving a mental state of a decisionmaker.

Outcome
Dismissed on merits

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The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.