UNAT Held or UNDT Pronouncements
The UNAT noted that the interview panel had nominated the staff member as one of the recommended candidates for appointment to the post but the Recruitment Report had been erroneously silent as to whether she had been considered on an equivalency basis. The UNAT observed that the advisory committee had subsequently found that her experience did not qualify her for equivalency and that she had not met the educational qualifications.
The UNAT held that because the staff member had been wrongly shortlisted, her participation in the remainder of the recruitment process had been unlawful and any subsequent errors could not have led to her appointment to the post.
The UNAT found that the staff member had not acted to her detriment in reliance on the Agency’s errors and, due to her insufficient qualifications and experience, could have had no legitimate expectation of appointment.
The UNAT was of the view that the Agency’s acts or omissions could not be said to have manifestly abused the appeals process and that it was unable to award costs against the Agency in the circumstances.
The UNAT noted that the staff member had not persuaded it that there had been issues brought to the Dispute Tribunal’s attention that could not have been justly decided simply on the documents and submissions adduced, and that it had erred in law in refusing the request for an oral hearing.
The UNAT dismissed the appeal and affirmed the UNRWA DT Judgment.
Decision Contested or Judgment/Order Appealed
A staff member contested a decision not to select her for the post to which she had applied. She had been preliminarily recommended but subsequently not appointed because she did not have the requisite university degree.
In Judgment No. NRWA/DT/2024/002, the UNRWA DT dismissed her application on the merits. The UNRWA DT found that the Agency had no discretion to shortlist the staff member because she did not have the requisite educational qualification.
The staff member appealed.
Legal Principle(s)
Both the UNRWA DT Statute and UNAT jurisprudence vest in the Dispute Tribunal the discretion to determine the question of whether the case before it is to be decided on the papers and without an in-person hearing.
Not only must procedural error be established but the Appeals Tribunal must also be satisfied that this error must have affected the outcome of the case before the Dispute Tribunal.
Conducting a wide-ranging investigation of the staff member’s circumstances, and the qualifications and experience of the appointed persons is not the role of the UNRWA DT.
If the Agency complied with the relevant appointment processes, then the merits of its decisions to appoint and not to appoint staff members are generally left to the discretion of the officials best placed to make those decisions so long as the Administration’s discretion is exercised lawfully.
Decision review is an essential process to address staff members’ challenges to administrative decisions and to allow an opportunity for these to be addressed by the Administration, rather than by the Dispute Tribunal with its necessarily attendant delay and costs to all concerned.
The Administration should not only be permitted to correct its prior errors, but indeed has a duty to do so and such correction should not be held against it in subsequent litigation.