Ä¢¹½ÊÓÆµAT Held or Ä¢¹½ÊÓÆµDT Pronouncements
Ä¢¹½ÊÓÆµDT held that a plain reading of staff regulation 2.1 makes it clear that the Administration is obliged to provide a classification not only for the staff members but also for the posts that they are encumbering. Ä¢¹½ÊÓÆµDT held that nowhere in Personnel Directive/1/94 it is as much as contemplated that a staff member at the GS-level, even on a short-term temporary appointment as the Applicant, could be hired against an unclassified post. Ä¢¹½ÊÓÆµDT held that the administrative decision under review is clearly the decision by which the Applicant was recruited against an unclassified post when he was hired as a Clerk at the GS-3 level in 1997, and not the decision concerning the level he should have been hired at. These are two entirely different administrative decisions. Ä¢¹½ÊÓÆµDT held that as the correct classification of a post is a staff member¡¯s contractual right, when appointed to Clerk at the GS-3 level, the Applicant had a right to be hired against a post classified at the GS-3 level. Ä¢¹½ÊÓÆµDT held that the administrative decision under review in the case is the decision by which the Applicant was recruited against an unclassified post when he was hired as a Clerk at the GS-3 level in 1997 it is not the decision concerning the level he should have been hired at. Ä¢¹½ÊÓÆµDT held that if it were to award the Applicant retroactive payment at the GS-5 level for the failure of appointing him against a classified post, it would have to do so by giving effect to a possible right for him to be appointed at this higher level. Not only would this amount to specific performance under art. 10.5(a) of the Dispute Tribunal¡¯s Rules of Procedure rather than compensation under its art. 10.5(b), but it would require the Tribunal to make a determination on the appropriate classification of the post at the material time, which is not a function of this Tribunal and speculative. Ä¢¹½ÊÓÆµDT held that the Applicant has provided no evidence whatsoever to substantiate any harm in connection with him being incorrectly hired against an unclassified post. Ä¢¹½ÊÓÆµDT rejected the Applicant¡¯s claim for compensation for loss of chance extremely remote, speculative, and based on the rejected claim that the Applicant was incorrectly hired at the GS-3 level and not the GS-5 level. Related
Decision Contested or Judgment/Order Appealed
The Applicant, a Records Clerk at the GS-4 level in the Field Personnel Division (¡°FPD¡±), DFS, in New York, contested the decision appointing him as a Clerk at the GS-3 level in DPKO in 1997 against an unclassified post. The Applicant seeks retroactive correction of his grade to GS-5 as of 1997 and compensation for loss of chance/emotional distress.
Legal Principle(s)
The correct classification of a post is a staff member¡¯s contractual right. The decision not to classify a post and the decision to hire a staff member at a certain level are different decisions. IT is not within Ä¢¹½ÊÓÆµDT¡¯s authority to determine at which level a staff member should be hired.
Outcome
Outcome Extra Text
Hiring against an unclassified post was unlawful. Remedies are denied.