UNAT Held or UNDT Pronouncements
The Tribunal finds that the cancellation of the second selection exercise and its subsequent recommencement were, in the circumstances, appropriate and lawful in view of the strong representations by the Staff Council and the complaints raised regarding the selection exercise. However, there were excessive and unjustifiable delays in concluding the selection process. The Organization also consistently and without just cause failed to respond to the Applicant’s reasonable requests for information and action. The delays in question as well as the failure to respond to the Applicant’s enquiries were deliberate or negligent and, in any event, amounted to maladministration.
Decision Contested or Judgment/Order Appealed
Non-selection for a post.
Legal Principle(s)
Excessive delays: In cases of excessive delay, the Administration cannot, without more, use the absence of a specific rule regarding a particular period of notification as a cloak to cover instances of abuse of power and maladministration. There is a shared responsibility on the part of staff members as well as management to create and foster a harmonious working environment characterized by mutual respect and consideration for others consistent with the core values of the Charter of the United Nations, resolutions of the General Assembly, and various administrative issuances. Implied administrative decisions: Administrative decisions that are subject to review by the Tribunal are not always presented as affirmative decisions. They are sometimes in the form of a failure to act, which may be characterized as an implied administrative decision. Good faith and fair dealing: There is an implied term in the contract of employment between the United Nations and its staff members that decisions affecting the staff member’s terms of employment must be consistent with the duty and mutual obligation on both parties to act in good faith towards each other, which includes acting rationally, fairly, honestly, and in accordance with the obligations of due process. Responding to staff members’ requests: Failure to acknowledge or respond to reasonable requests, particularly where they are repeated several times over, amounts to maladministration for which some compensation is payable in appropriate cases. Assessment of compensation: As the fact-finding tribunal, this Tribunal is best placed to arrive at a conclusion as to whether the applicant suffered emotional harm and, if he did, to quantify its extent.