UNDT/2021/095, Opolot
The Tribunal found that the Applicant had not satisfied his burden of proof to show through clear and convincing evidence that his separation was unfair and that the Administration did not violate any term of the Applicant’s contract of employment. The Applicant challenged the fact that he was separated on ground of retrenchment before the General Assembly had approved the Budget to abolish his post. The record showed that this issue was already adjudicated upon in favour of the Applicant under Order No. 086 (NBI/2019). In accordance with the Tribunal’s earlier final finding on the matter, it was unnecessary to re-consider the issue as doing so would go against the rule of res judicata.
The Applicant challenged the decision not to extend his fixed-term appointment beyond 30 June 2019.
In a dispute involving a challenge of the Secretary General’s exercise of discretion, the role of UNDT is to examine whether his discretion was exercised properly. There can be no exhaustive list of the applicable legal principles in administrative law, but unfairness, unreasonableness, illegality, irrationality, procedural irregularity, bias, capriciousness, arbitrariness and lack of proportionality are some of the grounds on which tribunals may for good reason interfere with the exercise of administrative discretion. There is a presumption that official functions are regularly performed. The Respondent has a minimal burden of proof to justify his actions in administrative matters. Once discharged the burden shifts to the staff member to show the contrary through clear and convincing evidence. In terms of allegations of ulterior motive, it is now well established that allegations of bias, ill will, discrimination must be supported by evidence.