UNDT/2023/139, Mouchabek
The Applicant having failed to establish any illegality, procedural irregularity, bad faith or improper motivation in the Respondent’s taking of the decision not to accept her request to withdraw her resignation, the application had to fail.
Had the Respondent not exercised his discretion to reject the Applicant’s request to withdraw her resignation, he would have been compelled to rescind selection decisions already communicated and accepted by three other staff members. This would have constituted a breach of the employment contracts of the three staff members. This breach would have presented adverse legal consequences. Therefore, according to the Respondent, it was prudent to exercise the discretion in favor of not accepting the Applicant’s request to withdraw her resignation, which the Tribunal found reasonable under the circumstances of this case.
The Applicant contests the “decision to separate [her] on early retirement, despite the withdrawal of her request for early retirementâ€.
The Tribunal may rescind the impugned decision if satisfied that the exercise of managerial discretionary power was unlawful, unprocedural, or improperly motivated.
The starting point in the process of judicial review is the recognition that there is a presumption that official functions are regularly performed. The Respondent bears a minimal burden to show that he acted lawfully and procedurally. Once the presumption is discharged, the burden shifts to the Applicant who must rebut it through clear and convincing evidence that the impugned decision is unreasonable or unfair or illegal or procedurally flawed or that it is marred by improper motive.