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UNDT/2018/044

UNDT/2018/044, Teo

UNAT Held or UNDT Pronouncements

The Respondent submitted that the case was not receivable ratione materiae as it did not concern an appealable decision, but the Tribunal rejected this claim and found the case receiveable.

Decision Contested or Judgment/Order Appealed

The Applicant contested the decision, when she moved from Geneva to New York as part of the post-matching exercise, to reassign her to a general temporary assistance post instead of a regular-budgeted post.

Legal Principle(s)

UNDT to examine receivability sua sponte: It is the consistent jurisprudence of the Appeals Tribunal that the Dispute Tribunal “is competent to review its own competence or jurisdiction” under its Statute and that “[t]his competence can be exercised even if the parties or the administrative authorities do not raise the issue, because it constitutes a matter of law” (see Tintukasiri et al. 2015-UNAT-526, para. 20, and similarly, for instance, O’Neill 2011-UNAT-182, Christensen 2013-UNAT-335 and Babiker 2016-UNAT-672). Consequently, when examining the question of receivability, the Dispute Tribunal is in no way limited by the pleadings and claims of the parties and may assess the issue entirely independent thereof. Transferring a s/.m to a post with a less secure funding source is an appealable administrative decision: It is trite law that a typical, and generally accepted, reason for abolition of post is that the relevant post has lost its funding. While a regular-budget post generates its financing through the regular budget, the funding source for a general temporary assistance post is different and of provisional, unstable and insecure nature. Accordingly, depending on the funding source, the risk of her fixed-term appointment being terminated due to lack of such funding will therefore necessarily vary—and it is only reasonable to presume that, from a perspective of funding, a regular budgeted post is more secure than a general temporary assistance post. In line herewith, in Toure 2016-UNAT-660, the Appeals Tribunal found that the applicant in that case “did not hold a regular-budget established post but one of a temporary nature that could be discontinued without the need for [the relevant Executive Secretary] to seek prior approval” (see para. 36).

Outcome
Judgment entered for Applicant in full or in part

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The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.