¹ś²śAV

UNDT/2020/061, Geegbae

UNAT Held or UNDT Pronouncements

The Applicant argued that the decision to abolish his post and to terminate his fixed-term appointment was tainted by improper motives, but the Tribunal found that the Applicant failed to meet the burden of proof. The Applicant applied for three posts at his level and the record showed that staff members holding continuing appointments from a closed peacekeeping mission were appointed to two posts. Since staff members holding continuing appointment have priority over staff members holding fixed-term appointment, the Administrationā€™s decision regarding these two posts was found to be lawful. However, the record showed that the Administration opened up the third post to competition and administered a written assessment and interview, when the Applicant was entitled to be considered on a non-competitive basis under staff rule 9.6(e). Therefore, the decision regarding the third post was found to be unlawful. The Tribunal found that the fact that the Applicant did not respond to a written test invitation was irrelevant as the Administrationā€™s decision to open the position for competition was already in violation of staff rule 9.6(e). Since the Administration did not fully comply with its obligations under staff rule 9.6(e) to make all reasonable and good faith efforts to consider the Applicant for available suitable posts, the termination decision was found to be unlawful. The Tribunal rescinded the contested decision and set in-lieu compensation at net-base salary at the time of his separation for the remaining period of his fixed-term appointment which was terminated (i.e. 5 months and 15 days). The Applicantā€™s claim for moral damages was rejected as he did not submit any evidence to support his claim for moral damages.

Decision Contested or Judgment Appealed

The decision to terminate the Applicantā€™s fixed-term appointment.

Legal Principle(s)

An international organization necessarily has power to restructure some or all of its departments or units, including the abolition of posts, and the Tribunal will not interfere with a genuine organizational restructuring even though it may have resulted in the loss of employment of staff, but like any other administrative decision, the Administration has the duty to act fairly, justly and transparently in dealing with staff members. If the applicant claims that the decision was ill-motivated, the burden of proving any such allegations rests with the applicant. Staff rule 9.6(e) creates an obligation on the Administration to make reasonable and good faith efforts to find suitable placements for the redundant staff members whose posts have been abolished. The Administration is bound to demonstrate that all reasonable efforts have been made to consider the staff member concerned for available suitable posts. Where there is doubt that a staff member has been afforded reasonable consideration, it is incumbent on the Administration to prove that such consideration was given. Nevertheless, while efforts to find a suitable post for the displaced staff member rest with the Administration, it is lawful and reasonable to expect that the affected staff members cooperate fully in the process: the relevant staff member is required to cooperate fully in these efforts and must show an interest in a new position by timely and completely applying for the position. Once the application process is completed, however, the Administration is required by staff rule 9.6(e) to consider such staff members ā€œon a preferred or non-competitive basisā€ for the position in an effort to retain him or her. ā€œSuitable postsā€ include posts at the displaced staff memberā€™s grade level or even at a lower grade, if, in the latter case, the staff member has expressed an interest by way of application thereto. In-lieu compensation, an alternative to rescission, should be as equivalent as possible to what the person concerned would have received, had the illegality not occurred. Under art. 10.5(b) of the Dispute Tribunalā€™s Statute, compensation for harm should be supported by evidence, and the Appeals Tribunal held that it should be supported by three elements: the harm itself, an illegality, and a nexus between them, and the claimant bears the burden of proof to establish that the harm is directly caused by the Administrationā€™s illegal act. The testimony of the complainant is not sufficient without corroboration by independent evidence (expert or otherwise).

Outcome
Judgment entered for Applicant in full or in part

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