UNDT/2022/131, Heurtematte
None of the documents submitted by the REspondent had the official or authoritative character of a budgetary and/or financial record to demonstrate how the Applicant’s post was established and funded and—by a subsequent exclusion—also showed that the post had been abolished (see, similarly, the Dispute Tribunal’s non-appealed judgment in Quatrini UNDT/2020/043). Also, nowhere in any of the documentation is it implied that the mandate of UN Women’s office had changed in a way that would disallow the employment of a driver at 3 level of the General Service staff category (“G-3”). The Respondent provided no legislative foundation for the scheme outlined in his submissions whereby, in consequence, the Regional Director can allegedly, at her own initiative and without restrictions, decide to abolish a staff member’s post and use the underlying funds to finance other operational activities. The Tribunal was left with no other option than to draw the adverse inference from the Respondent’s failure to comply with Order No. 105 (NY/2022) that the relevant formal budgetary and/or financial records indeed show that the Applicant’s post was, in fact, never abolished but continued to exist. This inference was only logical as rather than abolishing the Applicant’s post, UN Women instead kept the post existing in order to use its underlying funds to finance another post, namely post no. 56028 for the Executive Associate position at the G-6 level. By doing so, it further appeared that UN Women intended to keep the possibility open of hiring another driver than the Applicant against his post. This finding is supported by the Respondent’s submission in which he states that “the Regional Office has (still) not hired another driver since the Applicant’s separation”, as highlighted by the stipulation of “still” in parenthesis. The Tribunal found that the Respondent had not established by any relevant evidentiary standard that the Applicant’s post was actually abolished, and that the decision thereabout was therefore part of a genuine effort to restructure of UN Women’s regional office in Panama. Furthermore, as the Applicant’s post apparently continued to exist and consequently was not abolished, the reason provided for the contested decision was not supported by facts. Finally, the Respondent has not established that UN Women acted “fairly, justly, and transparently” in dealing with the Applicant. Instead of abolishing the Applicant’s post as stated in the contested decision, UN Women used its underlying funding to partially finance another post. This action had no apparent legal and/or budgetary basis and was seemingly taken with the intent of hiring another driver than the Applicant. It followed from the contested decision that the Applicant’s fixed-term appointment was not renewed because his post was abolished. As the Tribunal has found that the Respondent has failed to establish that the Applicant’s post was, in fact, abolished, the provided reason was therefore not supported by facts and unlawful in accordance with the Appeals Tribunal’s jurisprudence in Islam (in line herewith, see also, for instance, the Appeals Tribunal in Obdeijn 2012-UNAT-201, Lui 2016-UNAT-659, Kellie UNAT-2018-875, and Handy 2020-UNAT-1015).
The decision to abolish the Applicant's post and the non-renewal of appointment beyond 30 September 2021.
“It is well settled jurisprudence that an international organization necessarily has the power to restructure some or all of its departments or units, including the abolition of posts, the creation of new posts, and the redeployment of staff”. The Appeals Tribunal will “not interfere with a genuine organizational restructuring even though it may have resulted in the loss of employment of staff”, but “even in a restructuring exercise, like any other administrative decision, the Administration has the duty to act fairly, justly, and transparently in dealing with staff members”. See para. 19 of Abdeljalil 2019-UNAT-960, as also affirmed in Abu Ata et al. 2020-UNAT-1016. It is trite law that if a staff member affected by a non-renewal decision requests to be provided a reason therefor, the Administration must do so and the reason must be lawful and supported by facts (see, for instance, Islam 2011-UNAT-115, Obdeijn 2012-UNAT-201, and El-Arqan 2019-UNAT-911). As the Appeals Tribunal stated in its seminal judgment in Sanwidi 2010-UNAT-084, at para. 40, “[w]hen 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”. This means that the Tribunal “can consider whether relevant matters have been ignored and irrelevant matters considered, and also examine whether the decision is absurd or perverse”. The Appeals Tribunal further underlined that “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” or otherwise “substitute its own decision for that of the Secretary‑General” (see Sanwidi, para. 40). In this regard, “the Dispute Tribunal is not conducting a merit-based review, but a judicial review” explaining that a “[j]udicial review is more concerned with examining how the decision-maker reached the impugned decision and not the merits of the decision-maker’s decision” (see Sanwidi, para. 42). When assessing the Administration’s exercise of it discretion, the Appeals Tribunal stated “[t]here can be no exhaustive list of the applicable legal principles in administrative law, but unfairness, unreasonableness, illegality, irrationality, procedural irregularity, bias, capriciousness, arbitrariness and lack of proportionality are some of the grounds on which tribunals may for good reason interfere with the exercise of administrative discretion” (see Sanwidi, para. 38). When a post is abolished, this means that the post ceases to exist. Hence, according to Merriam-Webster online dictionary (https://www.merriam-webster.com/dictionary/abolition), “abolition” means “the act of officially ending or stopping something”. An abolition of a post will therefore manifest itself by the post being written out of the budget and lose its funding. Even before the expiry of the budget period, a post can, however, be abolished if the mandate of the relevant operation(s) is changed and the relevant functions of the post are no longer authorized. Whereas the Appeals Tribunal indeed stated in Icha 2021-UNAT-1077 that the Dispute Tribunal had applied the standard of presumption of regularity (see para. 1), it did not necessarily uphold this finding. Rather, when only partially granting the appeal and rescinding the relevant contested decision, the Appeals Tribunal did not pronounce itself thereon, but instead held that “[w]ith regard to the decision to abolish Ms. Icha’s post, the appeal is without merit; she only reargues her case and does not establish that [the Dispute Tribunal] erred in fact or in law about this issue”. Rather, on the applicable evidentiary standard, in Judge Graeme Colgan’s concurring opinion, he criticized the application of the presumption of regularity standard in cases regarding abolition of post (see paras 2 and 3).