UNDT/2020/033, Kristensen
The Respondent did not select the Applicant for GJO 71792 because he failed a competency-based interview. Passing a competency-based interview is a lawful requirement envisioned by art. 101.3 of the United Nations Charter and set by the Staff Regulations and Rules that form an integral part of the Applicant’s terms of employment. The Respondent complied with all the relevant statutory requirements in the selection process leading to the contested decision. It was clear from the jurisprudence that the Applicant’s argument that the Administration should have considered his previous scores in tests had no legal basis as this is not a standard provided for in ST/AI/2010/3.
The Applicant contested the decision not to place him on the roster of pre-approved candidates for a D-1 Head of Office, Political Affairs post (generic job opening (GJO) 71792).
The Secretary-General has broad discretion in matters of staff selection (UN Charter, art. 101 and staff regulations 1.2(c) and 4.1). While the Tribunal’s role is not to substitute its decision for that of the Administration, the Tribunal can intervene where the Administration failed in its duty to act fairly, justly and transparently in dealing with its staff members and failed to follow its own Regulations and Rules. In matters of staff selection, a staff member has a right to be fully and fairly considered for promotion through a competitive selection process untainted by improper motives like bias or discrimination. In that regard, there is always a rebuttable presumption that official acts have been regularly performed. If the Respondent is able to even minimally show that the Appellant’s candidature was given full and fair consideration, then the presumption of law stands satisfied. Thereafter, the burden of proof shifts to the Appellant who must show through clear and convincing evidence that he or she was denied a fair chance of promotion.
The application was dismissed because the Applicant failed to demonstrate through clear and convincing evidence that his candidacy was not given full and fair consideration.