Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
The Ä¢¹½ÊÓƵAT held that the decision to cancel the appointment process and initiate a new process was one which fell squarely within the discretionary authority of the Administration. Given that a new appointment process had been embarked upon, there was no longer any administrative decision alleged to be in non-compliance with AAP¡¯s terms of appointment or contract of employment. Any dispute concerned with the initial appointment process was moot in the sense that there was no live issue in dispute which required determination by the Ä¢¹½ÊÓƵDT. The Ä¢¹½ÊÓƵAT held that the Ä¢¹½ÊÓƵDT correctly dismissed AAP¡¯s application as not receivable on this basis.
The Ä¢¹½ÊÓƵAT further dismissed AAP's contention that the Ä¢¹½ÊÓƵDT erred in law in dismissing their application by summary judgment without allowing the parties to comment or submit closing statements. The Ä¢¹½ÊÓƵDT was entitled under Article 9 of the Ä¢¹½ÊÓƵDT Rules to exercise its discretion to determine the matter by way of summary judgment, without receiving closing statements or additional evidence from the parties, on the legal issue of receivability. Since the application was not in law receivable ratione materiae, the Ä¢¹½ÊÓƵAT dismissed AAP¡¯s request to submit further documents pursuant to Article 2(5) of the Ä¢¹½ÊÓƵAT Statute.
Decision Contested or Judgment/Order Appealed
AAP, a Human Resources Officer engaged with a United Nations Mission, contested before the Ä¢¹½ÊÓƵDT the decision not to recommend/select them for a Logistics Officer position at the P-4 level.
The Ä¢¹½ÊÓƵDT dismissed the application. The Ä¢¹½ÊÓƵDT noted that the recruitment process for the position had been cancelled and re-advertised as a recruit-from roster with oversight by a different hiring manager, and that absent a reviewable administrative decision, the application was not receivable. The Ä¢¹½ÊÓƵDT further found that the Administration had acted within the scope of its discretion and that no compensation was therefore due.
AAP appealed.
Legal Principle(s)
The summary judgment procedure is a proper procedure for the Ä¢¹½ÊÓƵDT to adopt in order to determine whether an application is receivable or not since the issue in such circumstances is one of law and not fact.
The Ä¢¹½ÊÓƵDT is competent to hear and pass judgment on an application filed by an individual against the Secretary-General inter alia to appeal an administrative decision that is alleged to be in non-compliance with the terms of appointment or the contract of employment.
An applicant has the statutory burden to establish that the administrative decision in issue was in non-compliance with the terms of their appointment or contract of employment. Such a burden is met where the applicant identifies an administrative decision capable of being reviewed, that is, a specific decision which has a direct and adverse impact on his or her contractual rights. What is required is a specific, recognizable decision, declaration or ruling made by the Administration (express or implied) that can then be challenged and on which the MEU deadlines can be imposed.
A selection process involves a series of steps or findings which lead to the administrative decision. These steps may be challenged only in the context of an appeal against the outcome of the selection process.
The Administration is not under an obligation to pursue a recruitment procedure once begun, by filling the post which has become vacant. This falls within the discretionary authority of the Administration to terminate a recruitment procedure and/or to initiate a new one.