Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
The Ä¢¹½ÊÓƵAT considered an appeal by the staff member.
The Ä¢¹½ÊÓƵAT found that the staff member had merely made unsubstantiated general claims about having the requisite skills and experience for his post to be retained.
The Ä¢¹½ÊÓƵAT was of the view that, as the Ä¢¹½ÊÓƵDT had correctly held, the staff member had failed to discharge the evidentiary burden to rebut the presumption of regularity that arose from the minimal showing of a rational basis for the decision.
The Ä¢¹½ÊÓƵAT found that the record confirmed that there was a genuine restructuring that led to the retrenchment of 29 staff members.
The record also showed that the abolition of particular posts depended on the requirements of the clients of Ä¢¹½ÊÓƵOPS. Lastly, the fact that he had been placed on performance improvement plan was not per se an indication of bias, or clear and convincing evidence that the rationale to abolish his post was unreasonable.
The Ä¢¹½ÊÓƵAT noted that it was immaterial whether the rationale for the contested decision had been formulated in writing after taking that decision; it provided no compelling indication of any impropriety.
The Ä¢¹½ÊÓƵAT dismissed the appeal and affirmed Judgment No. Ä¢¹½ÊÓƵDT/2022/061.
Decision Contested or Judgment/Order Appealed
A former staff member contested the decision not to renew his fixed-term appointment.
In Judgment No. Ä¢¹½ÊÓƵDT/2022/061, the Ä¢¹½ÊÓƵDT dismissed his application. The Ä¢¹½ÊÓƵDT accepted that the decision to abolish the P-3 post, encumbered by the staff member, instead of a P-2 post, had been rational and that the Administration had properly exercised its discretion. The Ä¢¹½ÊÓƵDT found that the staff member had been given fair and adequate consideration and that he had failed to adduce clear and convincing evidence of improper motive or bias sufficient to rebut the presumption of regularity.
Legal Principle(s)
Restructuring may justify the termination of employment on grounds of operational requirements. The abolition of a post resulting from a reorganization or effectuated on the grounds of operational requirements therefore usually constitutes a valid substantive reason for non-renewal of an appointment or not extending a fixed-term appointment.
A non-renewal of a fixed-term appointment can be challenged on the grounds of procedural irregularity or that the staff member had a legitimate expectation of renewal or that the decision was arbitrary or motivated by bias, prejudice or improper motive.
The Ä¢¹½ÊÓƵDT should not interfere with an organizational restructuring exercise unless there is evidence that the discretion was exercised unreasonably, unlawfully or without due process. If the Administration is able to minimally show that the staff member was given full and fair consideration, then the evidentiary burden shifts to the staff member to show that he or she was subject to an act of unreasonableness or unfairness.