UNAT Held or UNDT Pronouncements
The UNAT held that the contested decision was a separation decision hinged on expiration of an appointment, and not a termination decision based on abolition of post or reduction of staff. The former staff member did not fall within the category of staff with the right to be considered on a preferential basis for retention and the Administration did not have an obligation to find him an alternative and suitable position following the abolition or reclassification exercise.
The UNAT observed that although the former staff member was informed in his non-renewal letter that he would be placed on the downsizing list and advised to apply for suitable job openings, that was not a promise to make him genuinely believe that his appointment would be renewed.
There was no other evidence of a firm promise or commitment to renew the former staff member’s contract beyond the expiration date and the fact that he was placed on multiple short-term contracts beyond the expiry of the FTA did not and could not have created an expectation of renewal.
The UNAT held that the reclassification decision was not subject to judicial review as the former staff member did not follow the internal process for reviewing reclassification decisions, which should be done at the departmental level where it is relevant and appropriate.
The UNAT observed that the former staff member’s FTA was not terminated by the abolition of his position, but by the effluxion of time – it expired naturally due to its non-renewal. His FTA would have come to an end whether the position was or was not made redundant.
The UNAT dismissed the appeal and affirmed the UNDT Judgment.
Decision Contested or Judgment/Order Appealed
The former staff member of the Office of the Special Envoy of the Secretary-General for Yemen (OSESGY) contested the Administration’s decision not to extend his fixed-term appointment due to redundancy of the post after a staffing review.
In Judgment No. UNDT/2024/004, the UNDT dismissed the application in its entirety.
The former staff member appealed.
Legal Principle(s)
An administrative decision not to renew a fixed term appointment can be challenged on the grounds that the Administration has not acted fairly, justly, or transparently with the staff member, or that the decision was motivated by bias, prejudice or improper motive. The burden is on a staff member to prove those factors played a role in the administrative decision.
It is not necessary that, during consultation, the Administration discuss the reasons for the intended administrative decision in detail with the staff member or even to be “open” to negotiate and reconsider issuing the administrative decision. There is no obligation to secure consent or agreement from the consulted parties.
A legitimate expectation of renewal of a Fixed Term Appointment (FTA) will exist or arise only where the Administration makes an express promise which gives the staff member an expectation that his or her appointment will be extended, and the promise to renew should at least be in writing.
A legitimate expectation must be based on more than a verbal assertion, but instead on a firm commitment of renewal revealed by the circumstances of the case. The commitment must be in writing and constitute a firm engagement from which the Administration cannot easily derogate.
The Administration has the power to restructure and reorganize its units and its departments to lend to greater efficiency. However, where a staff member holds, in order of preference, either a continuing appointment or a FTA, which is subject to termination following the abolition of a post or reduction of staff, reasonable efforts need to be made by the Administration to find the staff member a suitable post.