UNDT/2023/134, Philippe Schifferling
The Tribunal found that, in the present case, there is no dispute that the decision was unilaterally made by the administration and that it involved the exercise of a power or the performance of a statutory instrument. The dispute is on whether the decision adversely affected the rights of the Applicant and produced direct legal consequences.
The Tribunal found that the Applicant’s argument that “UNOPS not only decided to charge [him], but also to maintain him in an indefinite status of “charged person,†leaving him indeterminately prosecuted; since as—at the time of the Application—he had not been sanctioned, and but also never absolvedâ€; (see para. 18 of the Application) does not address the issue of adverse effects on his rights nor direct legal consequences on his contract of employment. His reference to the fact that at the time of the Application he had not been sanctioned or absolved speaks of future action with the potential to affect his rights—sanction or not.
The Tribunal found that, consequently, and in conclusion, the Applicant’s submission that the “contested UNOPS decision to charge him [had] already produced direct legal effects on the Applicant’s personal and employment rights†was not supported by evidence of any particulars of specific legal effects on his terms of appointment. A charge is but one of several steps in a disciplinary process. It lacks direct legal effect and, hence, is not reviewable.
The Applicant contested the decision to charge him with misconduct.
The Dispute Tribunal may determine and issue judgment on a matter concerning the receivability of an application if there is a dispute as to whether the Tribunal is competent under its Statute to hear and pass judgment on the merits of an application.
The elements that constitute an appealable administrative decision have been well established through jurisprudence and recently reiterated by the Appeals Tribunal in Neupane 2023-UNAT-1378 at para 26, restating that: “According to the consistent jurisprudence of this Tribunal, an administrative decision is defined as ‘a unilateral decision of an administrative nature taken by the administration involving the exercise of a power or the performance of a function in terms of a statutory instrument, which adversely affects the rights of another and produces direct legal consequences’â€.
The Dispute Tribunal has “no jurisdiction to hear appeals against decisions which may potentially affect a staff member’s terms of appointment or contract of employment in the future†(see, the Appeals Tribunal in Mirella et al. 2018-UNAT-842 at para. 42).