2020-UNAT-1063, Noberasco
UNAT held that the Appellant’s identity was probably known by the assessment panel at the time her test was marked. UNAT held that the Appellant’s test was graded by the assessment panel after it had sent the transmittal memorandum to the Central Review Panel (CRP), creating the additional burden for the Appellant of having to persuade the assessment panel to change its original recommendation in the transmittal memorandum. UNAT held that, as the candidates recommended in the transmittal memorandum did not have this additional burden, it could not be said that all candidates received equal consideration. UNAT held that the way the Appellant’s irregular disqualification was managed gave rise to a reasonable apprehension of partiality, which was normally sufficient to vitiate a decision. UNAT held that the CRP was denied the opportunity to fulfil its function to assess, in light of the procedural irregularity, whether the recommendations had been made fairly, impartially, and in accordance with due process. UNAT held that a mandatory and material procedure or condition precedent prescribed by the relevant empowering provisions (ST/AI/2010/3 and ST/SGB/2011/7) was not complied with; and thus, the non-selection decision was unlawful. UNAT held that the Appellant was not given full and fair consideration. UNAT held that UNDT erred in concluding that the Appellant’s non-selection was lawful. UNAT held that, based on her experience, skills, and qualifications, the Appellant had a significant and foreseeable chance of being selected. UNAT upheld the appeal, reversed the UNDT judgment, and awarded the Appellant USD10,000 for loss of chance of promotion.
The Applicant contested the decision not to select her for the post. UNDT identified a series of errors in the recruitment and selection process. UNDT concluded that none of the irregularities were of such a nature that they rendered the process, including the non-selection decision, unlawful. UNDT dismissed the application.
While the Secretary-General has broad discretion in matters of staff selection and promotion decisions are to be presumed regular, the Administration is required as a first step to make a minimal showing that a staff member’s candidature was given due consideration. The presumption of regularity is rebuttable. Reasonable apprehension of partiality is normally sufficient to vitiate a decision; there is no need for an applicant to show ulterior motive, bad faith, or actual bias.
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