UNDT/2015/031, Aly et al.
Announcement of NYGSCAC composition The Tribunal notes that ST/IC/2011/17 (Membership of the New York General Service Classification Appeals Committee) was issued by the ASG/OHRM on 7 June 2011, on the same day that the NYGSCAC issued its report.The Applicants’ right to be informed of the composition of the NYGSCAC in a timely manner was not respected. Moreover, the NYGSCAC, as an appellate body, must have impartial members to ensure the fairness of the review, and the appellants must have the possibility to request the replacement of any member, including the chairperson, if any of them are incompatible.No record of appointment of NYGSCAC membersThe Tribunal finds that there is no evidence on the record that the Secretary-General appointed the chairperson of the NYGSCAC and the members recommended by the Administration, as required by sec. 7.3 of ST/AI/1998/9. The Tribunal does not consider that the email from the Office of the Deputy Secretary-General dated 27 May 2011, which “approved” the recommendations from OHRM, was sufficient to formally appoint members to the NYGSCAC. The Tribunal therefore concludes that the chairperson of the NYGSCAC and the members recommended by the Administration were not appointed by the Secretary-General in accordance with sec. 7.3 of ST/AI/1998/9.Timing of Secretary-General’s “approval” of NYGSCAC membershipThe ASG/OHRM proposed members for the NYGSCAC on 4 March 2011 and 13 May 2011. The Secretary-General’s approval of these recommendations was conveyed in an email dated 27 May 2011. The report of the NYGSCAC dated 7 June 2011 states that the Committee “met on a number of occasions during May 2011 to consider the cases”. There is no evidence on the record to indicate that the approval of the Secretary-General had a retroactive effect in relation to the previous meetings of the proposed members. Therefore, the Tribunal considers that the NYGSCAC began its deliberations before its members had been properly appointed in accordance withsec. 7.3 of ST/AI/1998/9.Procedural flaws in NYGSCAC reviewThere is no evidence on the record that a report of the reviewing service (OHRM) was made after the Applicants filed their appeals on 8 May 2004 against the decision to maintain the original classification of their posts and that this report was provided to the Secretary of the NYGSCAC as required by sec. 6.6 of ST/AI/1998/9. Further, there is no evidence that the Secretary provided this report to the Applicants in order to respect the mandatory provisions from sec. 6.7 of ST/AI/1998/9. The Tribunal considers that the Applicants’ right to receive a copy of the report of the reviewing service, and to file their comments before the NYGSCAC, was breached.The decision of the ASG/OHRMArticle 6.14 of ST/AI/1998/9 states (emphasis added): “The [ASG/OHRM] or the head of office, as appropriate, shall take the final decision on the appeal. A copy of the final decision shall be communicated promptly to the appellant, together with a copy of the report of the Appeals Committee". The Tribunal considers that compliance with this provision is mandatory and that the ASG/OHRM must take his/her own decision, which is a completely separate decision from the NYGSCAC report. The Tribunal, after reviewing the content of the decision taken on 8 June 2011 by the ASG/OHRM, finds that the only decision taken by the ASG/OHRM was to approve the NYGSCAC report from 7 June 2011 (page 20 of the report has a special section—“Decision of the Assistant Secretary-General for Human Resources Management"—with two check boxes “approved” and “not approved”). The Tribunal therefore finds that instead of making her own final, reasoned decision on the appeal, as required by sec. 6.14 of ST/AI/1998/9, the ASG/OHRM only approved the NYGSCAC report.
The Applicants contested the decision of the Assistant Secretary-General, Office of Human Resources Management (“ASG/OHRM”), based on the recommendations of the New York General Service Classification Appeals Committee (“NYGSCAC”), to maintain the classification of their posts following the remanding of the case Aly et al. (Judgment No. UNDT/2010/195, rendered by Judge Kaman on 29 October 2010) to the NYGSCAC. The Tribunal held that the review of the NYGSCAC was flawed due to irregularities relating to the announcement of its composition and the appointment of its members. The Tribunal found that the Applicants were not advised of the composition of the NYGSCAC in a timely manner. There was also was no evidence that the members proposed by OHRM for membership of the Committee were appointed by the Secretary-General as required by ST/AI/1998/9 (System for the classification of posts). In any event, the communication of the Secretary-General’s approval of those recommended for membership was made on 27 May 2011. According to the report of the NYGSCAC, the Committee met on a number of occasions during May 2011 to consider the Applicants’ cases. There was no evidence on the record to indicate that the approval of the Secretary-General had a retroactive effect in relation to the previous meetings of the proposed members. The Tribunal concluded that the NYGSCAC began its deliberations before its members had been properly appointed in accordance with ST/AI/1998/9. The Tribunal also found that the mandatory procedural steps set out in ST/AI/1998/9 (System for the classification of posts) had not been followed, including the transmittal of a report of the reviewing service (OHRM) and opportunities for the Applicants to comment on such a report. Finally, the Tribunal found that the ASG/OHRM did not make a separate, final, reasoned decision on the appeal. She merely approved the report of the NYGSCAC.
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