UNAT Held or UNDT Pronouncements
The UNAT held that the former staff member did not request an oral hearing during proceedings before the UNDT and thus cannot be allowed to do so on appeal. The UNDT as the trier of fact cannot be bypassed.
The UNAT found no error in the UNDT’s finding that the former staff member’s post-separation grievances were beyond its scope of adjudication and not receivable because there was no prior and timely request for management evaluation. The sanction for non-compliance with this mandatory internal procedure is the non-receivability of the application challenging the contested decision.
The UNAT found that the approval of Mr. Phogat’s teleworking and Special Leave Without Pay requests did not constitute a promise to make him genuinely believe that his appointment would be renewed beyond its expiry and did not grant him permission to take the series of personal actions he took to relocate his parents to India at his own expense. There is no evidence of a firm promise or commitment to renewing Mr. Phogat’s contract, beyond the expiration date of 30 June 2024 in the records. Mr. Phogat moreover did not have a legitimate expectation of renewal of his temporary appointment based on alleged reassurances by his supervisor.
The UNAT found that the UNDT did not err in concluding that there was uncontroverted evidence that the resettlement quota for UNHCR’s India Operations was reduced, which affected the needs for temporary assistance. The UNAT rejected Mr. Phogat’s arguments that he received discriminatory treatment because two of his colleagues had their temporary appointments renewed because his own submission admits that someone other than himself also had his or her contract not renewed.
The UNAT agreed with Mr. Phogat that the UNDT should not have considered his absence from the duty station as a reason for the non-renewal of his temporary appointment when this was not argued by the Administration; however, this did not affect the outcome of the case.
The UNAT found that the Secretary-General did not abuse the appeals process and denied Mr. Phogat’s award of costs.
The UNAT dismissed the appeal and affirmed Judgment No. UNDT/2025/026.
Decision Contested or Judgment/Order Appealed
Former staff member of the Office of the United Nations High Commissioner for Refugees contested the Administration’s decision not to renew his temporary appointment beyond 30 June 2024.
In Judgment No. UNDT/2025/026, the UNDT rejected the application.
The former staff member appealed.
Legal Principle(s)
An appeal is not a rehearing of the issues that were put forward before the UNDT, but an opportunity for an appellant to demonstrate errors by the UNDT based on the evidence and other documents that were before it, as well as the judgment issued by it.
Management evaluation is a mandatory first step in the appeals process and a prerequisite to invoke the UNDT’s jurisdiction. It is in the interest of the Organization to give special regard to this first step, since it gives the Administration a chance to correct itself or provide acceptable remedies in cases where there has been flawed decision-making, and to reduce the number of cases that need to proceed to formal litigation. The purpose of management evaluation or review is to correct any errors in an administrative decision so that judicial review of the administrative decision is not necessary.
A legitimate expectation of renewal will exist or arise only where the Administration makes an express promise, in writing, which gives the staff member an expectation that his or her appointment will be extended.
The Tribunals must confine their adjudication to issues properly raised by the parties. Although a court may properly draw inferences from facts that have been established or from other direct evidence, a Tribunal which raises issues or draws inference from issues not raised by the parties before it may commit an error in procedure or err on a question of fact.
The burden of proving discrimination or improper motive rests with the party making the allegation. When a staff member alleges discrimination, he or she bears the burden of proving on a preponderance of evidence that the discrimination occurred. Complaints of general discrimination are not sufficient. They must be specific and directly relate to the applicant.