UNDT/2021/102, Dettori
UNAT Held or UNDT Pronouncements
The Tribunal recalls that there is a procedure to challenge administrative decisions which a staff member deems to be in violation of his or her contractual rights. The Applicant, who is represented by professional counsel, cannot bypass the applicable procedures to indirectly introduce decisions, which were not timely challenged, into these proceedings to argue that they form part of a pattern of abuse against her. To allow this tactic would result in an upset of the administrative legal order of the Organization. The Tribunal notes that Applicant disagrees with UNICEF’s evaluation of her suitability for the post. However, she has not shown that the post is not commensurate with her competence and skills. In her email correspondence, she objects that the post does not fall within her current technical field and does not fulfill her career aspirations and in her submissions, she expresses a clear preference to remain in the New York duty station. While these criteria are perfectly understandable from the Applicant’s point of view, they are not sufficient to show that the reassignment was unlawful in light of the jurisprudence. The Tribunal recalls that the Administration retains the discretion to reassign staff in the interest of the Organization, within certain parameters. In the present case, the Applicant fails to show that these parameters were not respected in the selection of the post. Even if the Applicant were correct in that UNICEF should have waited to hear from the Special Constraints Panel before finalizing the assignment decision, given that the deferment decision intervened before the assignment decision become applicable, this potential procedural error had no impact on the final decision. The Tribunal recalls that the Staff Regulations and Rules, as well as other applicable norms, provide staff members with avenues to contest administrative decisions that they believe are in violation of their rights as staff members. Staff members do not, however, have the right to unilaterally choose which decisions they abide by and which they do not. This would, as the Respondent points out, give the staff member a veto right which would have the effect of paralyzing the administration. The Applicant chose not to report for duty before the procedures to challenge the assignment decision had been exhausted. There is no justification for this course of action and, therefore, the application must fail.
Decision Contested or Judgment/Order Appealed
The Applicant contests “(1) the decision to reassign [her] through UNICEF’s staff mobility and rotation policy while [she] was constructively unassigned, was on medical leave, and had a pending request for deferment of rotation on medical grounds” (“assignment decision”) and “(2) [the] decision to separate [her] for abandonment of post for declining the assignment” (“separation decision”).
Legal Principle(s)
When judging the validity of the Secretary-General’s exercise of discretion in administrative matters, the Dispute Tribunal determines if the decision is legal, rational, procedurally correct, and proportionate. The Tribunal can consider whether relevant matters have been ignored and irrelevant matters considered, and also examine whether the decision is absurd or perverse. But it is not the role of the Dispute Tribunal to consider the correctness of the choice made by the Secretary-General amongst the various courses of action open to him. Nor is it the role of the Tribunal to substitute its own decision for that of the Secretary-General. It is within the Administration’s discretion to reassign a staff member to a different post at the same level. We have also stated that, an accepted method for determining whether the reassignment of a staff member to another position was proper is to assess whether the new post was at the staff member’s grade; whether the responsibilities involved corresponded to his or her level; whether the functions to be performed were commensurate with the staff member’s competence and skills; and, whether he or she had substantial experience in the field. In this respect, it falls squarely within the management’s discretion to assign a staff member to a different place of work, or assign him or her to different functions as deemed appropriate, taking into account the Organization’s best interests, the staff member’s adaptability and skills as well as other factors. However, UNAT’s jurisprudence does not provide a blanket endorsement for the reassignment of staff members by the Administration. The exercise of the discretionary authority of the Administration to reassign staff members has to pass all of the relevant tests governing it, namely such a reassignment is lawful if it is reasonable in the particular circumstances of each case and causes no economic prejudice to the staff member. It must also respect the procedural and substantive rules of law and must not be arbitrary.
Outcome
Outcome Extra Text