UNAT Held or UNDT Pronouncements
Initial assessment of roster candidates The Applicant raised several questions relating to the initial assessment process, which the Tribunal reviewed in turn. The Tribunal noted that under sec. 7.5 of ST/AI/2010/3, the Administration has broad discretion on how to assess shortlisted candidates. While the OHRM Guidelines encourage hiring managers to interview roster candidates in a less formal setting, that is not the only way to assess roster candidates. Therefore, the Tribunal found that the administration of a written assessment and an informal interview for the purpose of a roster selection was lawful. The Tribunal noted that although the Manual for Hiring Managers suggests five days’ notice before taking a written test, it is merely guidance and does not confer any entitlements and rights. Therefore, it found that there was no procedural breach when the Applicant was given a shorter notice for a written assessment. Furthermore, the Tribunal did not find any ground to interfere with the evaluation of the Applicant’s written response as its evaluation was conducted within the Hiring Manager’s margin of discretion. However, the Tribunal found it troubling that the Hiring Manager failed to keep any records in relation to the outcome of the informal interviews in violation of sec. 7.6 of ST/AI/2010/3. It was even more disturbing since the first part of this selection process was not mentioned at all in a final transmittal memo to the CRB. In the memo to the CRB, the Hiring Manager did not disclose the fact that he informally interviewed the four roster candidates and found them not suitable for the Post and proceeded with the selection process excluding the roster candidates. Having failed to produce the evidence on which the contested decision was based, namely the Applicant’s alleged failure at his informal interview, which was also not disclosed to the CRB in violation of ST/AI/2010/3, the Tribunal found that the Administration did not minimally show that the Applicant was given full and fair consideration. Exclusion of the Applicant from the further selection process The Tribunal found that the Administration’s decision to proceed with the second round of the selection process excluding roster candidates was unlawful. Once the Administration found roster candidates not suitable for the Post and decided not to proceed with a roster selection, the Administration had to conduct a regular selection process for all shortlisted candidates, including both roster and non-rostered candidates, in accordance with ST/AI/2010/3. The Tribunal also noted that instead of administering a written assessment on a passing score predetermined before the selection process began, the Hiring Manager abruptly changed it (from 65 to 80 percent) in the middle of the selection process. Moreover, this variation of the passing grade occurred after the identity of roster candidates and their scores became known to the Hiring Manager. This variation specifically prejudiced three roster candidates including the Applicant who received the score of 65. Worse, the Administration failed to produce any record documenting the setting of the passing scores, the change of the passing score, and its reasons. Accordingly, the Tribunal found that the Administration unlawfully excluded the Applicant from a subsequent selection process and unlawfully changed the passing score of a written assessment. In light of the above, the Tribunal found that the Administration failed to show that the Applicant was afforded fair and full consideration in the selection exercise for the post and determined that the contested decision was unlawful. Rescission and in-lieu compensation The Tribunal ordered the rescission of the contested selection decision. However, considering that the level of the Post was the same as that of the post the Applicant encumbered at the time he applied to it and that the Applicant had not provided any evidence that he suffered any economic loss otherwise, no amount of in lieu compensation was ordered. Compensation for harm The Applicant’s claim for compensation for harm was rejected.
Decision Contested or Judgment/Order Appealed
The Applicant contests the decision not to select him for a P-4 position.
Legal Principle(s)
The Secretary-General has broad discretion in matters of staff selection. When reviewing such decisions, the Tribunal shall examine “(1) whether the procedure as laid down in the Staff Regulations and Rules was followed and (2) whether the staff member was given fair and adequate consideration” (Abbassi 2011-UNAT-110). The Tribunals’ role is not to substitute its decision for that of the Administration” (Ljungdell 2012-UNAT-265). The starting point for judicial review is a presumption that official acts have been regularly performed (Lemonnier 2017-UNAT-762). If the management is able to minimally show that an applicant’s candidature was given full and fair consideration, the burden of proof shifts to the applicant who then must show through clear and convincing evidence that he or she was denied a fair chance of selection (Rolland 2011-UNAT-122). The Administration should be able to minimally show that the applicant’s candidature was given full and fair consideration. In order to do so, the Administration should provide the Tribunal “with information about the decision being challenged”, which “should include the findings of fact material to the decision the evidence on which the findings of fact were based the reasons for the decision and all of the documentation in the possession and control of the decision-maker which is relevant to the review of the decision” (Finniss 2014-UNAT-397). A loss of opportunity can be compensated but the harm should be directly caused by the contested decision, be supported by evidence, and may not be duplicative compensation (Mihai 2017-UNAT-724). In awarding compensation for a loss of opportunity, the Dispute Tribunal must take into account “other factors such as the staff member mitigating his or her loss, or taking up a better position, or earning [other] income” (Dube 2016-UNAT-674). s