UNDT/2024/049, Oketch
The Applicant failed to establish through clear and convincing evidence that the selection process for the Post was tainted by any unlawful actions or that he suffered any harm as a result of the contested decision. Accordingly, his application was dismissed and his claim for compensation was rejected.
The assertion that the Applicant had a reasonable expectation that his candidacy would receive special consideration since he had performed the functions of the Post for five years was misplaced. He did not seriously dispute the fact that the creation of the Head of Office position was not a reclassification of his position.
The Applicant contested non-selection “for the position of Senior Humanitarian Affairs Officer/Head of OCHA Liaison Office to the African Union”.
It is well established in the jurisprudence of the Appeals Tribunal that the Administration has broad discretion in matters of staff selection (see Nikolarakis, 2016-UNAT-652, para. 28; citing Nwuke 2015-UNAT-506, paras. 48-49). However, this discretion is not unfettered and is subject to judicial review.
In reviewing such decisions, it is not the role of the Dispute Tribunal to substitute its own decision for that of the Administration. Rather, the Dispute Tribunal’s role is to examine “(1) whether the procedure laid down in the Staff Regulations and Rules was followed; and (2) whether the staff member was given fair and adequate consideration” (Lemonnier 2017-UNAT-762, paras. 30-31. See also Pinto, 2018- UNAT-878; Abbassi 2011-UNAT-110, para. 23; Majbri 2012-UNAT-200, para. 35).
The role of the Dispute Tribunal is “to assess whether the applicable Regulations and Rules have been applied and whether they were applied in a fair, transparent and non-discriminatory manner” (Ljungdell 2012-UNAT-265, para. 30).
In matters of staff selection and appointment, there is a presumption of regularity concerning the performance of official acts (see Krioutchkov 2021-UNAT-1103, para. 29; Rolland 2011-UNAT-122, para. 26). Accordingly, in a recruitment procedure, if the Administration can minimally show that a staff member’s candidature was given full and fair consideration, the burden of proof shifts to the staff member, who must then show through clear and convincing evidence that he or she has been denied a fair chance of promotion (see Flavio Mirella 2023-UNAT-1334, para. 61).
Complaints relating to the Applicant’s alleged deprivation of equal pay for equal work fell outside the scope of the present application and were therefore not considered here.