91鶹

UNDT/2017/071, He

UNAT Held or UNDT Pronouncements

The decision not to renew a fixed-term appointment is often closely linked to the Organization’s broader discretion on how to organize its services. In that respect, the Tribunal notes that in times of scare resources, managers bear particular responsibilities for making sound management decisions, which implies making an assessment of services needed at a given time in a given department, and to avoid to unnecessary expenditure of public money with which they are effectively entrusted. Any post facto assessment of these matters is only relevant to the extent that it is able to demonstrate that on the basis of the information available at the time, no reasonable decision-maker would have made the non-renewal decision. It would be entirely inappropriate for the Tribunal to enter into a detailed examination of the actual figures provided in 2014 and to substitute its own assessment for that of the Administration on the basis of the information available today. Based on the evidence heard, the Tribunal noted that no allegations of ulterior motives or retaliation were made by the Applicant against her managers. Also, the Tribunal found that it was not unreasonable to conclude that at the time of the contested decision the reform of the human rights treaty bodies would reduce the workload of the CTPU. With respect to the bitext alignment, the Administration’s reliance on the completion of the backlog of bitext alignment of documents from 2010 and 2014 by mid-2014, in taking the non-renewal decision, was reasonable. The Applicant argued that she was placed on a Temporary Assistance for Meetings post as a result of the decision to cancel the G3 vacancies in December 2012. First of all, the Tribunal found that the contest in respect of the cancellation decision was not properly before the Tribunal, and can be reviewed only incidentally. The Chief, CTPU, plausibly explained that the use of TAM instead of regular posts allows the Organization to adjust more flexibly to the actual needs and workload at the CTPU. There is no evidence, whatsoever, that would allow an inference that the post cancellation in December 2012 was part of a plan to get rid of the Applicant, for ulterior motives, in June 2014. Rather, the evidence from the Chief, CTPU, was that the rationale behind his proposal to cancel the two G3 posts was to efficiently use the Organization’s resources. This, again, appears reasonable and sound management and a proper exercise of discretion by the Administration. There is no evidence to the contrary.; The former Chief, Language Services (LS), gave evidence that no one was recruited to replace the Applicant. Although this information was not available at the time of the contested decision, it undoubtedly shows that the prognosis made at the time of the contested decision was in no way unreasonable. It was made in order to adjust to a changing working environment in which the work of a Text processing clerk was becoming more and more obsolete. The then the Chief, CTS, was not dismissed, but resigned, and the investigation he had been subjected to, previously, was unrelated to the Applicant. It is thus of no relevance to this case. The issues the Applicant complained of mainly related to work issues. The work-related tensions, which are not denied, were mainly due to changing working processes and the Chief, CTPU, trying to address the fact that there was not enough work to do for all the staff. These tensions, while regrettable, do not support any conclusion of an ulterior motive with respect to the contested decision.; In light of its conclusion that the decision was justified based on a reasonable conclusion in May 2014 that the workload in the CTPU would be considerably reduced, no negative inference of bias is to be drawn from the reason provided for the non-renewal. Any alleged differential treatment has to be examined in light of the Applicant’s status. When the Chief, CTPU, following receipt of the email of 30 December 2013, decided to limit the contract extension only of the Applicant and the other G3 colleague’s contract to six months, their status, professional experience and language profile, were thus relevant considerations to be taken into account. The other issues complained of by the Applicant vis-à-vis the Chief, CTPU, relate mainly to the assignment or work, or performance evaluation. The tension between the Applicant and the Chief, CTPU, which mainly resulted from the changing working process was not demonstrated to be such as to lead to an inference of bias or unequal treatment of the Applicant. Finally, the fact that the Chief, CTPU, had evaluated the Applicant on the form used for temporary appointment holders, while regrettable and again poor management, was corrected and does not lead to a conclusion of bias against the Applicant. Accordingly, the Applicant failed to meet the burden of proof that the decision was based by ulterior motives. The Tribunal also notes that the Applicant did not file a formal complaint for retaliation, under the terms of ST/SGB/2005/21. In light of the limitation of the Applicant’s fixed-term appointment to DCM, and since she had not passed the ASAT test which requires working knowledge of one of the two UN working languages, and overall her professional and languages skills (or limitations), the Administration was not in a position to transfer the Applicant to another post or Department. The Deputy Chief, LS, had the authority to decide not to renew the Applicant’s appointment and the decision, which was also endorsed by the Executive Office, was not ultra vires.

Decision Contested or Judgment Appealed

The Applicant contests the decision not to renew her fixed-term appointment beyond 30 June 2014.

Legal Principle(s)

A fixed-term appointment does not carry any expectancy, legal or otherwise, of renewal or conversion, irrespective of the length of service. A non-renewal decision can be challenged on the grounds that it was arbitrary, procedurally deficient, or the result of prejudice or some other improper motivation. The burden of proving improper motivation lies with the staff member contesting the decision and a conclusion that the Administration had hidden motives not to renew a fixed-term appointment has to be based on evidence and not solely on speculation. Expectancy for renewal requires an express promise that cannot be based on mere verbal assertion, but has to be in writing. A legitimate expectation of renewal has to be “based on … a firm commitment to renewal revealed by the circumstances of the case”. The mere disagreement with a decision of management, or the belief that a different decision was equally open, does not make the decision contrary to law.

Outcome
Dismissed on merits

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