Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
Ä¢¹½ÊÓƵAT considered the Secretary-General¡¯s appeal. Ä¢¹½ÊÓƵAT held that Mr Kucherov did receive full and fair consideration for the post which was finally filled by another candidate. Ä¢¹½ÊÓƵAT found no flaw in the competitive selection procedure and agreed with the Secretary-General that the Ä¢¹½ÊÓƵDT judgment contained errors of fact and law. Ä¢¹½ÊÓƵAT noted that Section 7. 5 of ST/AI/2010/3, as amended, does not require a job opening to identify the specific assessment method to be used for the evaluation of technical skills. Rather, it provides that it may include a competency-based interview and/or other appropriate evaluation methods. Nor was a written test a mandatory assessment method required in this case, because under ST/AI/2000/1, once a candidate has been successful in a language competitive examination and put on the corresponding roster, there is no need to repeat the test. Ä¢¹½ÊÓƵAT held that the two short-listed candidates were in that position, thus, Ä¢¹½ÊÓƵDT erred on these two issues. Ä¢¹½ÊÓƵAT also held that Ä¢¹½ÊÓƵDT erred in considering the fact that the selection panel did not include an expert on Russian language or a non-voting member representing the Assistant Secretary-General of the Office of Human Resource Management, as a procedural error. Moreover, Ä¢¹½ÊÓƵDT erred in finding that the scoring system used by the selection panel did not accurately reflect the candidates¡¯ performance during the interview. Ä¢¹½ÊÓƵAT noted that the common method applied was within the Administration¡¯s discretion, and Ä¢¹½ÊÓƵDT overstepped its role to the extent that it selected the scoring system that should have been applied, requiring something which the applicable norms did not require. Ä¢¹½ÊÓƵAT further held that Ä¢¹½ÊÓƵDT erred in finding that the selection decision was made before the Central Review Bodies¡¯ mandatory review and did not contain the reasons for the selection. Ä¢¹½ÊÓƵAT noted that a justification for why the recommended candidate is selected is only required when an external candidate is selected in accordance with Section 9. 3 of ST/AI/2010/3, which was not the case here. Ä¢¹½ÊÓƵAT upheld the Secretary-General¡¯s appeal and vacated Ä¢¹½ÊÓƵDT¡¯s judgment.
Decision Contested or Judgment/Order Appealed
Mr Kucherov requested recession of the contested decision and an order that a new recruitment process be initiated or, alternatively, that he be awarded two years¡¯ net base salary as compensation for the violation of his rights, for stress and suffering as well as for the loss in salary and pension benefits caused by his non-selection. Ä¢¹½ÊÓƵDT found that the Applicant¡¯s right to be fully and fairly considered for the Post was not respected due to procedural irregularities. A non-promotion decision has no legal effect such as forcing the non-selected candidate to work in a different unit. Ä¢¹½ÊÓƵDT rejected Mr Kucherov¡¯s request for rescission because although he had a significant chance of selection, the recession would make the Applicant worse off, removing him from the roster for the role. (The Applicant had also been moved to a different department shortly afterwards). Ä¢¹½ÊÓƵDT also denied Mr Kucherov¡¯s request for alternative relief, stating that he did not have a right to be selected and, therefore, was not entitled to receive compensation for the violation of his right to be fully and fairly considered. Ä¢¹½ÊÓƵDT awarded Mr Kucherov USD 3,000 in moral damages as reasonable and sufficient compensation for the moral damages resulting from substantial procedural errors.
Legal Principle(s)
The judicial review of selection and promotion decisions is limited to the determination as to whether or not a candidate received full and fair consideration. In reviewing the selection process, it is not the role of the Ä¢¹½ÊÓƵDT or Ä¢¹½ÊÓƵAT to substitute its own decision for that of the Administration regarding its outcome.