Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
Ä¢¹½ÊÓƵAT considered the Secretary-General¡¯s appeal and Ademagic¡¯s cross-appeal. 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. Ä¢¹½ÊÓƵAT noted that it 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. 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 although Ä¢¹½ÊÓƵDT recognised that the Assistant Secretary-General for Office of Human Resources Management was entitled to take into consideration ICTY¡¯s limited mandate and ¡°all the interests of the Organisation¡±, when considering staff members¡¯ suitability for permanent appointments, the said consideration shall encompasses the interests of ICTY, as an institution established by the General Assembly, not merely as a downsizing entity. 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. With respect to Ademagic et al. ¡¯s cross-appeal, Ä¢¹½ÊÓƵAT did not find that Ä¢¹½ÊÓƵDT erred in remanding the cases to the Assistant Secretary-General for Office of Human Resources Management. Ä¢¹½ÊÓƵAT upheld this remand, noting that it was the most effective and equitable of the remedies and ordered strict adherence to Ä¢¹½ÊÓƵAT¡¯s directives and guidance to consider, on an individual and separate basis, each staff member¡¯s respective qualifications, competencies, conduct and transferrable skills when determining each of Ademagic et al. ¡¯s applications for conversion to a permanent appointment rather than the finite mandate of ICTY/MICT, so as to fetter or limit the exercise of discretion in deciding whether to grant a permanent appointment to any individual staff member. Further, both the Secretary-General and Ademagic et al. 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 Ademagic et al. 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 dismissed both Ademagic et al. ¡¯s appeal of Ä¢¹½ÊÓƵDT¡¯s remedy of remand to the Assistant Secretary-General for Office of Human Resources Management and appeal of the quantum of the awards of moral damages.
Decision Contested or Judgment/Order Appealed
Ademagic et al. contested the decisions denying them the conversion of their fixed-term appointments to permanent ones. Ä¢¹½ÊÓƵDT held that these decisions were unlawful and found that the Applicants had not been given sufficient consideration. Ä¢¹½ÊÓƵDT rescinded the contested decisions and remanded the matter to the Assistant Secretary-General for Office of Human Resources Management for ¡°retroactive individualized consideration of Ademagic et al. ¡¯s suitability for conversion of their appointments to a permanent one,¡± in conformity with the instructions in the Ä¢¹½ÊÓƵAT judgment among others, within 90 days of the issuance of the impugned judgment. Ä¢¹½ÊÓƵDT further awarded moral damages in the sum of EUR 3,000 to each of Ademagic 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.