UNDT/2020/109, Habamungu
Having proposed closure of the Kamina site to the General Assembly and the corollary budgetary reductions, the Respondent proceeded with the implementation of his proposal. The natural consequence of this process was that the Applicant was left with no tasks to perform. The decision did not amount to a de facto termination by cutting; short the Applicant’s appointment. The appointment continued until the expiration date on 30 June 2019 but was not renewed due to the abolition of the post. There was nothing in the parties’ submissions to show that the decision was perverse or tainted so as to trigger an inquiry into whether it was based on extraneous factors. The Respondent’s decision in this case was not illegal, irrational, procedurally incorrect or disproportionate.
The Applicant challenged the Respondent’s decisions to: place him on Special Leave with Full Pay (“SLWFP”) until the expiration of his fixed-term contract when his contract was “de facto terminated” on 30 May 2019; and deny him termination indemnity after his de facto termination from MONUSCO.
Staff regulation 9.3 is worded such as to make a decision to terminate discretionary. The Secretary-General may choose to terminate a staff member’s appointment for several reasons including where the necessities of service call for the abolition of posts or the reduction of the staff. When judging the validity of the Administration’s exercise of discretion in administrative matters, the Tribunal determines if the decision is legal, rational, procedurally correct, and proportionate. The Tribunal can consider whether relevant matters have been ignored and irrelevant matters considered, and also examine whether the decision is absurd or perverse. But it is not the role of the Tribunal to consider the correctness of the choice made by the administration amongst the various courses of action open to it.