UNDT/2015/044, Rouche
The Tribunal found that the decision not to convoke the Applicant to the YPP in Public Information was not a separate administrative decision, since he had never applied to take that exam. The decision not to convoke him to the YPP in Administration was taken by the Central Examinations Board (“CEBâ€), upon appeal, on the grounds that the Applicant did not fulfill the educational requirements. The Tribunal found that that decision was null and void, since the CEB, which held its meeting by email exchanges, did not have the required quorum and the decision was made after the date of the exam. The Tribunal ordered the Respondent to pay the Applicant USD2,000 for moral damage resulting from the nullified decision. On the merits of the appeal, the Tribunal found, however, that had the proper procedure been followed, the Applicant was most unlikely to have been found eligible for the examination in Administration. The Tribunal also noted that the CEB delay in treating the Applicant’s case and other errors by it resulted in the Applicant’s loss of opportunity to be convoked for the examination in Public Information, since he had clearly indicated his wish to sit for that exam in case he was not accepted to the YPP in Administration. This notwithstanding, the Tribunal found that the Applicant did not suffer any compensable material damage.
The Applicant, a staff member of the general service category, appealed the decisions not to convoke him to the 2013 young professionals programme (YPP) in Administration and to the 2013 YPP in Public Information.
CEB meetings and quorum: In the absence of an express provision in the ST/AI precluding the same, CEB meetings can be held via email. However, it is incumbent on the Board to take particular care to ensure that there is clarity about the mode of decision making and certainty about the proper constitution of the quorum required by the ST/AI. The terms of the ST/AI are clear and unambiguous in that they impose a mandatory obligation on the Board to ensure that its decisions are taken by a quorum of five members. This requires five members who participate in a decision by either casting a vote or abstaining. By implication members who do not participate in the decision, that is members who do not express an opinion on the merits or make a decision either by voting or abstaining from the vote, cannot be counted for the quorum. Right to appeal: When the CEB decision on appeal is taken after the date of an exam has passed, the staff member is de facto precluded from sitting the exam in that given year, independently from the outcome of the appeal; as such, he/she is unlawfully denied his/her right to appeal under the ST/AI. Protection from apparent bias: The fact that the applicable ST/AI requires the CEB to review its own decisions is a matter of policy not reviewable by the Tribunal. However, given that this policy creates a system that has the potential for apparent bias, the normal expectation that the CEB will comply with the procedural rules in the ST/AI as well as with basic requirements of due process is especially important. Limits of the Tribunal’s review: The Tribunal is limited to reviewing the decision of the CEB against the applicable eligibility criteria, and cannot substitute its assessment for that of the Administration with respect to the determination of the academic degrees it considers relevant for a certain job category, at any point in time, unless the criteria set are manifestly irrational or irrelevant, for example completely unrelated to the job category. In the absence of any ambiguity in a staff member’s personal history profile, and of a legal requirement to do so, the Tribunal will find no reason for the CEB to request the Applicant to provide additional information. Material damages: While compensation may be granted for loss of chance, in case an Applicant was found to never have been eligible and, hence, had no chance of ever being able to sit for the relevant exam, the late response to an appeal does not deprive him/her of any opportunity and, as such, does not give rise to compensable material damage. Also, when it is impossible to calculate on any rational basis what material loss would be sustained by an Applicant as a result of a loss of opportunity, he/she is not entitled to any compensation for material loss. Moral damages: Fundamental breaches of procedure by the Administration may cause an Applicant moral harm and, if supported by evidence, can give rise to compensation for moral damages.
Only financial compensation