UNDT/2013/144, Asariotis
The Tribunal found that since the Applicant failed to request the Administration to open a new TVA, and as such to provoke an administrative decision of refusal, the application was irreceivable in this respect. The Tribunal further found that the decision to select another candidate was procedurally flawed since the Applicant, despite her request, was not provided with the names of the members of the Interview Panel. In view of the case history, there is no doubt that the Applicant would have requested a change of Panel members and a reasonable Administrator would have conceded to her request. Therefore, the procedural irregularity was substantial and had an impact on the final selection decision which had to be cancelled. The Applicant had a chance out of 7 to be promoted and was awarded compensation for material (under art. 10.5 of the Statute) and moral damages.
The Applicant appealed the decision to appoint another candidate than her to a Director post (D-1), UNCTAD, and the failure to open a new TVA for the contested post pending the finalization of the selection procedure.
Administrative decision: In case the Administration lets an illegal situation continue, a staff member has to request the Administration to put an end to the illegal situation and as such provoke an appealable implicit or explicit administrative decision of refusal. An implicit administrative decision cannot be notified in writing. Non-promotion: The purpose of the rule that the Administration shall inform candidates before the interview of the composition of the assessment Panel is to allow them to raise potential conflicts of interest, hence to give the Administration the possibility to change Panel members. The failure to provide a candidate with the names of the members of the assessment Panel constitutes a procedural irregularity which may, in certain cases, be substantial, and lead to the cancelling of the selection decision. The Administration is bound to follow its own rules.
Only specific performance (including rescission with in lieu compensation)