UNDT/2017/073, Loeber
Receivability The application registered under Case No. UNDT/GVA/2015/182, insofar as it is directed against the decision to discontinue the post encumbered by the Applicant, is not receivable ratione materiae. In his application registered under Case No. UNDT/GVA/2016/039, the Applicant contests his separation from service effective 2 March 2016 and the non-renewal of his appointment, as a result of the abolition of his post. This is an administrative decision resulting from the restructuring and the abolition of the Applicant’s post. Merits Procedural regularity The noncompliance with a formality, which is that the information be conveyed in writing prior to a submission to the Budget Committee, did not prejudice the Applicant’s rights. The rationale behind such requirement is to ensure that staff members are aware in a timely manner of the management decisions regarding their post, but it shall not be used to prevent the implementation of such decision if it was taken by the competent authority and if it did not jeopardize the subjective rights of staff members. The prefatory acts at the basis for the Applicant’s separation from service, and thus the non-renewal of his fixed-term appointment, were taken by the competent authorities and did not prejudice the Applicant’s rights. Expectancy of renewal The offer of appointment that the Applicant accepted and signed in December 2013, that is, prior to receiving the letter of recruitment, contained a specific reference to the nature of the appointment as well as to its two–year duration. The reference that the Applicant made to the five-year period of permanence in a specific duty station is a general/standard clause that must not be confused with the duration of his appointment. The Applicant was fully aware of the duration and the nature of his appointment when he signed his letter of appointment. The argument that he had a legitimate expectation of renewal does fail. Applicant’s failure to apply to the newly created P-5 positions Having failed to apply to the newly created P-5 positions, the Applicant deprived the Organization of a real possibility to maintain him in service. The difference in substance between the new and the old P-5 positions in PS/PMCS did not allow filling the posts without advertisement and a competitive recruitment exercise. Thus, it was not possible to transfer the Applicant to any of the newly created P-5 positions. Extraneous factors The Applicant’s direct supervisor took some of these measures to smoothen tensions that appeared to have come up in the team, and to ensure the team worked efficiently. This falls within a manager’s powers and does not qualify as harassment. Rather, the Head, PMCS, took managerial actions, in good faith, as he believed they were in the Organization’s interest. Indeed, it is a manager’s role to balance and motivate a team, and the Tribunal is satisfied that the Applicant’s supervisor had good reasons to take the measures he did. Finally, the restructuring led to the abolition of several posts, one of which was that encumbered by the Applicant. The Applicant willingly decided not to apply for any of the new P-5 posts he was suitable for under the new structure. His separation from service, and the resulting non-renewal of his FTA, was based on a genuine restructuring exercise and the abolition of the post he encumbered.
The Applicant contests the decision to discontinue the post of Chief of Section (Procurement of Goods), effective 1 March 2016, which coincides with the expiration of his fixed-term appointment and the decision to separate him from service with UNHCR effective 2 March 2016.
The Organization has broad discretionary power in the restructuring of its departments, including the abolition of posts. However, managerial discretion is not unfettered. A decision of the Administration may be impugned if it is found to be arbitrary or capricious, motivated by prejudice or extraneous factors or was flawed by procedural irregularity or error of law. An administrative decision not to renew a fixed-term appointment—even one not to renew based on poor performance—can be challenged on the grounds the decision was arbitrary, procedurally deficient, or the result of prejudice or some other improper motivation. In administrative law, a distinction has to be made between “mandatory†procedural requirements, the breach of which render a decision null and void, and “directory†preconditions, which do not. Fixed-term appointments do not carry any expectancy, legal or otherwise, of renewal or conversion to any other type of appointment, unless the Administration has made an express promise that gives the staff member an expectancy that his or her appointment will be renewed. To be sustained, a legitimate expectancy must not be based on a mere verbal assertion, but on a firm commitment to renewal revealed by the circumstances of the case, and must generally be in writing. The burden of proving any allegations of ill motivation or extraneous factors rests with the Applicant.