UNDT/2020/088, Russo-Got
The evidence showed that the Applicant’s post was abolished and his fixed-term appointment was not extended for this reason. Therefore, the reason provided by the Administration for the non-renewal was lawful. The Applicant has adduced insufficient evidence that he was promised a renewal. The Applicant should have been aware that his fixed-term appointment expired automatically at the end of its term. The Administration properly notified the Applicant of the non-renewal of his appointment. While the notification of the decision not to extend the Applicant’s fixed-term appointment did not state the name of the decision-maker, this failure does not by itself render the decision unlawful, given the other circumstances of the case and that the nonrenewal was properly communicated to the Applicant. The Applicant presents no evidence of bias. As the Applicant’s fixed-term appointment expired, he had no right to be retained in application of staff rule 9.6(e).
Decision not to renew the Applicant’s fixed-term appointment.
A fixed-term appointment does not carry any expectancy of renewal and expires automatically without prior notice on the expiration date. The Administration is, nevertheless, required to provide a reason for such a nonrenewal upon the relevant staff member’s request, and this reason must be lawful and based on correct facts. An international organization necessarily has the power to restructure some or all of its departments or units, but has the duty to act fairly, justly, and transparently in dealing with staff members. The Administration has broad discretion to reorganize its operations and departments to meet changing needs and economic realities. The Administration’s discretion is not unfettered. When judging the validity of the exercise of discretionary authority, the Dispute Tribunal determines if the decision is legal, rational, procedurally correct, and proportionate, and the Tribunal can consider whether relevant matters have beenignored and irrelevant matters considered, and also examine whether the decision is absurd or perverse. It is not the role of the Dispute Tribunal to consider the correctness of the choice made by the SecretaryGeneral amongst the various courses of action open to him, or substitute its own decision for that of the Secretary-General. A review of one administrative decision cannot be reopened in the adjudication of another decision. The abolition of a post is a valid reason for a non-renewal decision. In order for a staff member’s claim of legitimate expectation of a renewal of appointment to be sustained, it must not be based on mere verbal assertion, but on a firm commitment to renewal revealed by the circumstances of the case. A promise to renew a fixed-term appointment must therefore at least be in writing and contain the essential elements of a proper and concrete offer of renewal, such as the duration of the extension. For an irregularity to render a decision illegal, it must be more than immaterial and somehow have had an impact on the decision. It is for a party who alleges that ulterior motives tainted a decision to substantiate this claim by way of evidence. When doing so, the mental state of the decision-maker usually will be placed in issue and will have to be proved on the basis of circumstantial evidence and inference drawn from that evidence. The obligation for the Administration to undertake efforts to find an alternative post only extends to a situation where a staff member’s appointment is terminated and not where it is not renewed. A written administrative decision of such importance as a non-renewal of a fixed-term appointment should state its author.