UNDT/2018/103, Krioutchkov
UNAT Held or UNDT Pronouncements
Was the Applicant’s candidature given full and fair consideration?; As an international multilateral organization with Member States having different descriptions in respect of academic qualifications, the Organization has a contractual obligation and a duty of care and due diligence towards its staff members to ensure that their candidatures are fairly and properly considered. The use of Anglo-Saxon terms to the apparent exclusion of the terminology used by other educational systems is not consistent with the proper exercise of that duty of care, or of the fair consideration of the Applicant’s candidature.; The Respondent has not proffered an explanation as to why the same Inspira system had previously accepted the Applicant’s academic qualifications as meeting the same minimum educational requirements, while it was rejected as not meeting them for the purpose of his application to JO 50523.; The Tribunal therefore found that the Applicant’s candidature was not afforded full and fair consideration and that, as a result, the Applicant’s exclusion from the recruitment process for the position of Russian Reviser-New York was unlawful.; Is the Applicant entitled to any remedy?; Having found that the Applicant’s candidature for JO 50523 was unlawfully excluded, the Tribunal rescinded the contested decision.; The Tribunal considered that the Applicant was a serious contender for JO 50523 and found it is appropriate to direct the Respondent to pay him USD2,500 as compensation in lieu of rescission.; The Tribunal further found that the Applicant’s claim for compensation for loss of opportunity was fully compensated by its decision above under art. 10.5(a) of its Statute.; With respect to the Applicant’s claim for moral damages related to alleged discrimination, humiliation, frustration, mental anguish and moral suffering, the Tribunal recalled the standard of proof required by the Appeals Tribunal (cf. Kallon 2017-UNAT-742 and Auda 2017-UNAT-787) and observed that the Applicant did not submit or suggest any supporting evidence. Consequently, the Tribunal found that the burden of proof had not been met did not grant damages under art. 10.5(b) of its Statute.
Decision Contested or Judgment/Order Appealed
The Applicant contests his non-consideration and eventual non-selection for the position of Russian Reviser (P-4), Department of General Assembly and Conference Management, New York (“Russian Reviser-New York”), advertised under job opening number 50523 (“JO 50523”).
Legal Principle(s)
The burden of proof in matters of non-selection rests on the Applicant, who has to show through clear and convincing evidence that he was denied a fair chance of promotion. The Respondent is presumed to have regularly performed official acts. Therefore, if the Respondent can minimally show that the Applicant was given full and fair consideration during a selection exercise, then the presumption of regularity is satisfied.; Concerning the determination of the amount of compensation in lieu of rescission, the Dispute Tribunal should be guided by two elements: first, the nature of the irregularity that led to the rescission of the contested administrative decision and, second, an assessment of the chances that the staff member would have had to be selected had those irregularities not been committed. However, the determination of the “compensation in lieu” must be done on a case-by-case basis and ultimately carries a certain degree of empiricism.
Outcome
Outcome Extra Text
Judgment vacated by UNAT and case remanded to the UNDT for additional factfinding in Krioutchkov 2019-UNAT-924.