Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
The Secretary-General appealed Ä¢¹½ÊÓƵDT¡¯s finding that the contested decisions to abolish Ms Nouinou¡¯s post, the consequent decision not to renew her two-year fixed-term appointment, and the refusal to re-assign her for two months under a zero-dollar incumbency, where she had been selected for a short-term position, were unlawful. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT made a grave error in law in terms of the basic legal position, which defined the subject of the litigation before it and the appeal. Ä¢¹½ÊÓƵAT held that there was no administrative decision to terminate Ms Nouinou¡¯s contract prior to its expiration and recalled that separation as a result of termination in cases of abolition of posts or reduction of staff differs substantially from separation as a result of the expiration of a fixed-term appointment. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT made an error in concluding that the Appellant sought management evaluation of the decision to abolish her post and in finding that the application challenging the decision was receivable ratione materiae. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT erred in law and fact resulting in a manifestly unreasonable decision. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT exceeded its jurisdiction or competence in receiving the abolishment of the post claim. Ä¢¹½ÊÓƵAT held that the Ä¢¹½ÊÓƵDT erred in fact and law in concluding that the decision not to renew the fixed-term appointment was unlawful because the lack of funds was a valid reason. On the issue of the lack of funds being a valid reason, Ä¢¹½ÊÓƵAT noted that the staff member was not encumbering an established regular budget post and therefore no approval of the General Assembly was required prior to continuing it; there was no evidence to support Ä¢¹½ÊÓƵDT¡¯s finding that the post was not funded from the OIA account until its depletion; and Ä¢¹½ÊÓƵDT erred by failing to recognise, respect and abide by Ä¢¹½ÊÓƵAT jurisprudence by shifting the burden to the Administration. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT erred on a question of law and fact resulting in a manifestly unreasonable decision when it concluded that there was no valid reason for the non-renewal of the staff member¡¯s appointment and when it made distinct holdings regarding the obligation of the Administration to retain the staff member and place her on any available suitable posts, or to reassign her to any available suitable vacant post. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT¡¯s conclusion that the Applicant had a legitimate expectancy of renewal was incorrect. Ä¢¹½ÊÓƵAT granted the appeal and vacated the Ä¢¹½ÊÓƵDT judgment.
Decision Contested or Judgment/Order Appealed
Ms Nouinou contested the abolition of her post and the decision not to renew her fixed-term appointment. Ä¢¹½ÊÓƵDT granted the Applicant¡¯s application in part. Ä¢¹½ÊÓƵDT held that the abolition of her post and the consequent decision not to renew her fixed-term appointment were unlawful. Ä¢¹½ÊÓƵDT concluded, inter alia, that the lack of funds could not constitute a reason for the abolition of her post and that Ms Nouinou had a legitimate expectation of renewal. Ä¢¹½ÊÓƵDT ordered the rescission of the decision to abolish Ms Nouinou¡¯s post, setting as an alternative in lieu compensation. Ä¢¹½ÊÓƵDT awarded compensation, including compensation for moral damages for harm to her dignity and career potential.
Legal Principle(s)
Separation as a result of termination initiated by the Secretary-General in cases of abolition of posts of reduction of staff differs substantially from separation as a result of the expiration of a fixed-term appointment, which takes place automatically, without prior notice, on the expiration date specified in the letter of appointment. The staff member has the burden of proving factors such as bias, prejudice or improper motive played a role in the administrative decision.