UNDT/2021/085, Mukhopadhyay
The Applicant did not advance any exception to the rule that General Assembly resolutions may not be amenable to judicial review by the Tribunal. Those exceptions arise where the Secretary-General is mandated to interpret an ambiguous regulatory decision, to comply with procedures or where the implementation of the resolution involves application of a criteria. In the instant case, the Secretary-General’s role in implementation of the resolution to abolish the P-4 Engineering position was mechanical and was not reviewable . In that regard, the Respondent was correct that that limb of the application was not receivable ratione materiae. The Respondent was under an obligation to give priority to the Applicant, who, as a holder of a continuing appointment, had a right under the Staff Rules to be offered any available post for which he was found suitable. The Respondent did not provide justification for offering the positions to staff members holding fixed term appointments or to those whose missions were not under threat of a downsizing exercise and whose staff members were not on the priority list for consideration for placement. The Respondent failed to take the Staff Rules into consideration, especially staff rule 13.1(d) and ignored the well-established jurisprudence on the matter and did not comply with his own internal communication regarding adherence to the rules and regulations and jurisprudence on priority retention of staff members whose positions are abolished. That failure to comply with the relevant provisions constituted a material irregularity. The decision to terminate the Applicant’s employment was unlawful.
The Applicant contested the decision by the Administration to terminate his continuing appointment following the decision to abolish his post, and without making good faith efforts to absorb him or to assist him in finding an alternative position.
The Tribunal has competence to review whether after abolition of posts the affected staff members are given the opportunity, subject to the availability of suitable posts in which their services can be effectively utilized, to be reassigned in the order of preference established by the staff rules. Where a staff member affected by abolition of post alleges that he was not given the opportunity, subject to the availability of suitable posts in which his services could be effectively utilized, to be reassigned in the order of preference established by the Staff Rules, the burden shifts to the Respondent to demonstrate that he made all proper, reasonable and good faith efforts to assist the staff member in finding suitable alternative employment.
The Applicant successfully argued that as a staff member with a continuing appointment faced with termination of employment due to abolition of post he was not afforded proper, reasonable and good faith opportunity to be absorbed into the system in violation of staff rules 9.6(e) and 13.1 (d)