UNAT Held or UNDT Pronouncements
The UNAT found that the UNRWA DT erred when it found Ms. Fakhouri’s application was receivable.
The UNAT held that despite being a staff member, the decision with which Ms. Fakhouri took issue was one which related to the terms of a potential contract not as a staff member but as an independent contractor and therefore the contested decision was not one that was appealable. The UNAT emphasized that Article 2(1)(a) of the UNRWA DT Statute makes clear that appeals can be brought against administrative decisions where such decisions relate to the staff member’s terms of appointment. But the Article does not include within its jurisdictional ambit issues related to contracts of employment with non-staff members. Ms. Fakhouri’s complaint related to a potential contract of employment as a non-staff member and thus did not fall within Article 2(1)(a).
The UNAT granted the Commissioner-General’s appeal and reversed the UNRWA DT Judgment.
Decision Contested or Judgment/Order Appealed
UNRWA DT staff member contested UNRWA’s failure to apply the rules set out in the Complementary Personnel Directive No.1 (CPD/1) in Contracting of Individual Service Providers in a fair, transparent and non-discriminatory manner. The staff member was selected for a non-staff position, however, she was not offered the position at the international staff rate because of a lack of international experience. The staff member declined the offer of a lower compensation rate which was applicable to area staff and challenged this decision.
In Judgment No. UNRWA/DT/2024/031 found that UNRWA failed to apply the rules set out in CPD/1 in the manner required and awarded compensation to Ms. Fakhouri.
The Commissioner-General appealed.
Legal Principle(s)
Summary judgment is an appropriate tool to deal with issues of receivability which are matters of law and not of fact, since receivability is a gateway test which requires three sequential issues to be satisfied: a matter must be receivable ratione personae, ratione materiae and ratione temporis.
Determining what constitutes an administrative decision is undertaken on a case-by-case basis and will depend on the circumstances, taking into account the variety and different contexts of decision-making in the Organization. The mere nature of a decision is not sufficient to classify it as an administrative decision, it must have direct adverse consequences to be an appealable administrative decision. Regard must also be had to the legal framework under which the decision was made and the consequences of the decision as key determinants of whether the decision in question is an administrative decision.
Interpreting a statute, document, or a provision within either, requires that meaning is attributed to the words used by having regard to (i) the ordinary grammatical meaning of those words; (ii) the purpose of the document or provision; and (iii) the context in which the document or provision came into existence. A reasonable and sensible meaning is to be preferred to one that leads to the opposite result or undermines the apparent purpose of the document.
Article 2(1)(a) of the UNRWA DT Statute does not afford staff members the right to appeal administrative decisions that do not relate to their terms of appointment as a staff member.