2019-UNAT-902, Nouinou
The Secretary-General appealed UNDT’s finding that the contested decisions to abolish Ms Nouinou’s post, the consequent decision not to renew her two-year fixed-term appointment, and the refusal to re-assign her for two months under a zero-dollar incumbency, where she had been selected for a short-term position, were unlawful. UNAT held that UNDT made a grave error in law in terms of the basic legal position, which defined the subject of the litigation before it and the appeal. UNAT held that there was no administrative decision to terminate Ms Nouinou’s contract prior to its expiration and recalled that separation as a result of termination in cases of abolition of posts or reduction of staff differs substantially from separation as a result of the expiration of a fixed-term appointment. UNAT held that UNDT made an error in concluding that the Appellant sought management evaluation of the decision to abolish her post and in finding that the application challenging the decision was receivable ratione materiae. UNAT held that UNDT erred in law and fact resulting in a manifestly unreasonable decision. UNAT held that UNDT exceeded its jurisdiction or competence in receiving the abolishment of the post claim. UNAT held that the UNDT erred in fact and law in concluding that the decision not to renew the fixed-term appointment was unlawful because the lack of funds was a valid reason. On the issue of the lack of funds being a valid reason, UNAT noted that the staff member was not encumbering an established regular budget post and therefore no approval of the General Assembly was required prior to continuing it; there was no evidence to support UNDT’s finding that the post was not funded from the OIA account until its depletion; and UNDT erred by failing to recognise, respect and abide by UNAT jurisprudence by shifting the burden to the Administration. UNAT held that UNDT erred on a question of law and fact resulting in a manifestly unreasonable decision when it concluded that there was no valid reason for the non-renewal of the staff member’s appointment and when it made distinct holdings regarding the obligation of the Administration to retain the staff member and place her on any available suitable posts, or to reassign her to any available suitable vacant post. UNAT held that UNDT’s conclusion that the Applicant had a legitimate expectancy of renewal was incorrect. UNAT granted the appeal and vacated the UNDT judgment.
Ms Nouinou contested the abolition of her post and the decision not to renew her fixed-term appointment. UNDT granted the Applicant’s application in part. UNDT held that the abolition of her post and the consequent decision not to renew her fixed-term appointment were unlawful. UNDT concluded, inter alia, that the lack of funds could not constitute a reason for the abolition of her post and that Ms Nouinou had a legitimate expectation of renewal. UNDT ordered the rescission of the decision to abolish Ms Nouinou’s post, setting as an alternative in lieu compensation. UNDT awarded compensation, including compensation for moral damages for harm to her dignity and career potential.
Separation as a result of termination initiated by the Secretary-General in cases of abolition of posts of reduction of staff differs substantially from separation as a result of the expiration of a fixed-term appointment, which takes place automatically, without prior notice, on the expiration date specified in the letter of appointment. The staff member has the burden of proving factors such as bias, prejudice or improper motive played a role in the administrative decision.