Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
Ä¢¹½ÊÓƵAT considered the appeals of both the Secretary-General and Mancussen et al. Ä¢¹½ÊÓƵAT upheld Ä¢¹½ÊÓƵDT¡¯s determination that the Assistant Secretary-General for Office of Human Resources Management did not give meaningful individual consideration to the staff members¡¯ requests for conversion to permanent appointments and noted that Ä¢¹½ÊÓƵAT gave a clear directive to the Administration that, upon remand, it should consider the staff members¡¯ suitability for conversion to permanent appointments ¡°by reference to the relevant circumstances as they stood at the time of the first impugned refusal to convert their appointments¡± and that the Administration failed to comply with this directive. Ä¢¹½ÊÓƵAT held that the failure of the Administration to do this, and to give any meaningful consideration to this criterion, of itself, was sufficient to vitiate the contested decisions. Moreover, Ä¢¹½ÊÓƵAT found no merit in the Secretary-General¡¯s argument that Ä¢¹½ÊÓƵDT improperly substituted its discretion for that of the Assistant Secretary-General for Office of Human Resources Management. Ä¢¹½ÊÓƵAT noted that Ä¢¹½ÊÓƵDT recognised that the Assistant Secretary-General for Office of Human Resources Management was entitled to take into consideration ICTY¡¯s finite mandate and downsizing situation, and appropriately referenced former Staff Rule 104.13 and Section 2 of ST/AI/2009/10 as the legal bases for giving due weight to ¡°all the interests of the Organisation¡±. However ¡°all the interests of the Organisation¡±, shall encompass the interests of ICTY, as an institution established by the General Assembly, not merely as a downsizing entity, in maintaining in its employ staff members who meet the ¡°highest standards of efficiency, competence, and integrity established in the Charter¡± in order for it to carry out its mandate. Ä¢¹½ÊÓƵAT upheld Ä¢¹½ÊÓƵDT¡¯s finding that the Administration¡¯s decisions not to grant permanent appointments to the staff members were flawed and, thus, upheld Ä¢¹½ÊÓƵDT¡¯s rescission of the flawed decisions. Marcussen et al. argued that Ä¢¹½ÊÓƵDT wrongly held that the Assistant Secretary-General for Office of Human Resources Management must be asked for a third time to conduct a non-discriminatory review. They urged that the fundamental breaches in the present case warranted interference by Ä¢¹½ÊÓƵAT with the exercise of administrative discretion and that they should be awarded either permanent appointments or termination indemnities. Ä¢¹½ÊÓƵAT found that Ä¢¹½ÊÓƵDT did not err in this remand and found it to be the most effective and equitable of the remedies. Ä¢¹½ÊÓƵAT upheld Ä¢¹½ÊÓƵDT¡¯s remand of the staff members¡¯ applications for conversion to permanent appointments to the Assistant Secretary-General for Office of Human Resources Management and to expect strict adherence to Ä¢¹½ÊÓƵAT directives and instructions of individual consideration each staff member¡¯s respective qualifications, competencies, conduct, and transferrable skills rather than overwhelming weight to the consideration of the finite mandate of ICTY/MICT. Further, both the Secretary-General and the staff members appealed Ä¢¹½ÊÓƵDT¡¯s award of moral damages. Ä¢¹½ÊÓƵAT vacated the awards of moral damages, concluding that Ä¢¹½ÊÓƵDT erred in law by not applying the amended Ä¢¹½ÊÓƵDT Statute as it existed at the time the Ä¢¹½ÊÓƵDT rendered its judgment which requires the staff member to present evidence to sustain an award of moral damages. Ä¢¹½ÊÓƵAT dismissed the Secretary-General¡¯s appeal of the merits and granted the Secretary-General¡¯s appeal of the awards of moral damages. Ä¢¹½ÊÓƵAT remanded Marcussen et al. ¡¯s appeal of Ä¢¹½ÊÓƵDT¡¯s remedy of remand to the Assistant Secretary-General for Office of Human Resources Management and dismissed the quantum of the awards of moral damages.
Decision Contested or Judgment/Order Appealed
Marcussen et al. contested the decisions denying conversions of their fixed-term appointments to permanent ones. Ä¢¹½ÊÓƵDT found that these decisions were unlawful. Ä¢¹½ÊÓƵDT rescinded the contested decisions and remanded the matter to the Assistant Secretary-General of the Office of Human Resources Management. Ä¢¹½ÊÓƵDT further awarded moral damages in the sum of EUR 3,000 to each of Mancussen et al.
Legal Principle(s)
The Assistant Secretary-General for Human Resources Management shall have the authority to place in a suitable position the following staff members when in need of placement outside the normal process: (a) Incumbents, other than staff members holding a temporary appointment, of positions reclassified upward for which an applicant other than the incumbent has been selected; (b) Staff, other than staff members holding a temporary appointment, affected by abolition of posts or funding cutbacks, in accordance with Staff Rule 9. 6 (c) (i); (c) Staff members who return from secondment after more than two years when the parent department responsible concerned has made every effort to place them. Where the appointment of a staff member is limited to a particular department/office, the staff member may be granted a permanent appointment similarly limited to that department/office. If the staff member is subsequently recruited under established procedures including review by a central review body for positions elsewhere in the United Nations Secretariat, the limitation is removed.