2025-UNAT-1574, Johnstone Summit Oketch
UNAT Held or UNDT Pronouncements
The UNAT found that the procedures applied to fill the Position sought by the staff member were consistent with the applicable rules. Although the OCHA advertised the Position without any pre-determined restriction to rostered candidates, and received some 151 applications, it ultimately decided to select a rostered candidate, thereby excluding the staff member and many others from consideration. The UNAT held that the Administration was well within its prerogative to do so, as the plain reading of Section 9.5 of Administrative Instruction ST/AI/2010/3/Rev.1 (Staff selection system) grants the Administration discretion to select candidates directly from the roster, without even reviewing applications from non-rostered candidates. Since the staff member was not on the roster, the Administration’s failure to consider his application could not be deemed improper.
The UNAT further concluded that the Administration met its burden of minimally demonstrating that the staff member’s candidature received full and fair consideration, and that there was no evidence of impropriety in its decision.
The UNAT also rejected the staff member’s argument that the Administration was obliged to find him an alternative position, noting that the creation of the Position did not constitute a reclassification of the post he held. Accordingly, it held that the Administration was under no obligation to find him another suitable position.
The UNAT dismissed the appeal and affirmed Judgment No. UNDT/2024/049.
Decision Contested or Judgment/Order Appealed
A Humanitarian Affairs Officer at the P-4 level with the Office for the Coordination of Humanitarian Affairs (OCHA) contested the decision of the Administration not to select him for the position of Senior Humanitarian Affairs Officer and Head of Office of OCHA’s African Union Liaison Office (AULO) (the Position) at the P-5 level.
In its Judgment No. UNDT/2024/049, the UNDT concluded that the non-selection decision was lawful and dismissed the staff member’s application.
Staff member appealed.
Legal Principle(s)
There is a presumption that official acts have been regularly performed. If the management is able to even minimally show that the Appellant’s candidature was given full and fair consideration, then the presumption of law stands satisfied. Thereafter the burden of proof shifts to the Appellant who must show through clear and convincing evidence that he/she was denied a fair chance of promotion.
In making a selection decision, the Administration has discretion to consider a variety of considerations, as long as the exercise of that discretion is judicious and not abusive, arbitrary, discriminatory, or irregular. It is not the role of the UNDT or the Appeals Tribunal to substitute its own decision for that of the Secretary-General.
The plain wording of Sections 9.4 and 9.5 of ST/AI/2010/3/Rev. 1 makes it clear that the Administration also has the discretion to make a selection decision from candidates included in the roster. There is no requirement for the Administration to first review all non-rostered candidates, regardless of their past performance or expectations.
An appeal to the UNAT is not an opportunity for an unsuccessful party to reargue his or her case. Rather, the Appellant must demonstrate defects in the impugned Judgment and not merely repeat or embellish arguments made before the UNDT.