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Case No.:
UNDT/NBI/2024/044
Order No.:
85 (NBI/2024)
Date:
8 July 2024
UNITED NATIONS DISPUTE TRIBUNAL
Original:
English
Before:
Judge Sean Wallace
Registry:
Nairobi
Registrar:
René M. Vargas M., Officer-in-Charge
GHAZAL
v.
SECRETARY-GENERAL
OF THE UNITED NATIONS
ORDER ON AN APPLICATION FOR
SUSPENSION OF ACTION PENDING
MANAGEMENT EVALUATION
Counsel for Applicant:
Self-represented
Counsel for Respondent:
Nicole Wynn, AS/ALD/OHR, UN Secretariat
Fatuma Mninde-Silungwe, AS/ALD/OHR, UN Secretariat
Case No. UNDT/NBI/2024/044
Order No. 85 (NBI/2024)
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Introduction
1. By application filed on 1 July 2024, the Applicant, a staff member of the
United Nations Support Office in Somalia (“UNSOS”), requests suspension of
action pending management evaluation, of the decision that he described as:
[T]he change of advertisement of the TRANSPORT OFFICER
(Chief Transport Officer), FS7, 231547, United Nations Interim
Force in Lebanon, NAQOURA, that requested application through
Recruit from Roster (RFR) on 27/3/2024 for which I submitted my
application on 1/4/2024. Unfortunately, I received an alert on
25/6/2024 informing me of the post cancellation, the post was later
readvertised as PSJO (24-Transportation-UNIFIL-237477-
RNAQOURA
2. The application for suspension of action was served on the Respondent, who
filed his reply on 4 July 2024.
Facts
3. On 26 March 2024, the Administration advertised a Recruit from
Roster (“RfR”) job opening 231547 in Inspira,
4. The Applicant Applied for the position on 1 April 2024.
5. Nine candidates were deemed eligible for the Hiring Manager’s suitability
review. After these candidates were evaluated against the required and desirable
criteria stipulated in the job opening, seven were longlisted and two were
shortlisted. According to the record, the Applicant was placed on the Long List
because he only met the required criteria. He was not placed on the Short List
because he did not meet the desirable criteria including a technical or vocational
certificate in a related field.
6. On 11 June 2024, the Hiring Manager interviewed the two shortlisted
candidates and determined that neither demonstrated “the capacity or ability to lead
the Transport Section as a Section Chief in UNIFIL”. As a result, the Hiring
Manager requested to readvertise the post through a Position Specific Job Opening
(“PSJO”) to find a qualified replacement before the incumbent’s departure.
Case No. UNDT/NBI/2024/044
Order No. 85 (NBI/2024)
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7. On 24 June 2024, Job Opening 24-Transportation-UNIFIL-237477-R-
NAQOURA (M) was posted in Inspira.
8. The following day, the Applicant received an alert notifying that the
recruitment for which he applied was cancelled and readvertised under a PSJO.
9. On 1 July 2024, the Applicant requested management evaluation of the
decision to cancel the RfR job opening and to readvertise the position. On the same
day, he filed with the Tribunal an application for suspension of action pending
management evaluation.
Consideration
Receivability
10. The Respondent argues that the application is not receivable because the
contested decision has already been implemented and is not a reviewable decision.
11. The Statute of the Dispute Tribunal provides that the Tribunal is competent
“to hear and pass judgment on an application … requesting the Dispute Tribunal to
suspend, during the pendency of the management evaluation, the implementation
of a contested administrative decision that is the subject of an ongoing management
evaluation”. Article 2.2 (emphasis added).
12. Thus, it is axiomatic that the authority to suspend implementation does not
apply when the contested decision has already been implemented. (See, e.g.,
Mills-Aryee UNDT/2011/051, paras. 17-18; Igbinedion UNDT/2011/110, para. 26;
El-Awar UNDT/2017/023, paras. 19-21).
13. The decision to cancel the RfR recruitment job opening and to readvertise it
as a PSJO was implemented on 24 June 2024. Thus, the implementation is no longer
pending and subject to suspension.
Case No. UNDT/NBI/2024/044
Order No. 85 (NBI/2024)
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14. Moreover, the decision to readvertise is merely a preparatory and
intermediate step in the recruitment decision. Only a decision taken at the end of
the recruitment’s process with direct legal consequences for the Applicant would
constitute an administrative decision subjected to review. Avramoski
2020-UNAT-987, para. 39; Faye 2016-UNAT-657, para.30; Nguyen Kropp &
Postica 2015-UNAT-509, para. 33; Lee 2014-UNAT-481, paras. 48-49; Ngokeng
2014-UNAT-460, para. 27; Ishak 2011-UNAT-152, para. 29; Andati-Amwayi
2010-UNAT-058, para.17.
15. Thus, the application is not receivable. Even if it were, the application would
fail on the merits.
16. Article 2.2 of the Tribunal’s Statute provides that the Tribunal shall be
competent to suspend the implementation of a contested administrative decision
during the pendency of management evaluation where the decision appears prima
facie to be unlawful, in case of particular urgency, and where its implementation
would cause irreparable damage. These three requirements are cumulative. In other
words, they must all be met in order for a suspension of action to be granted.
Furthermore, the burden of proof rests on the Applicant.
Prima facie unlawfulness
17. The Tribunal recalls that the threshold required in assessing this condition is
that of “serious and reasonable doubts” about the lawfulness of the impugned
decision (Hepworth UNDT/2009/003, Corcoran UNDT/2009/071, Miyazaki
UNDT/2009/076, Corna Order No. 90 (GVA/2010), Berger UNDT/2011/134,
Chattopadhyay UNDT/2011/198, Wang UNDT/2012/080, Bchir
Order No. 77 (NBI/2013), Kompass Order No. 99 (GVA/2015).
18. To perform the functions of Chief of Transport Section, none of the roster
candidates met the requirements of the RfR. Consequently, the hiring manager
requested to readvertise the position through a PSJO, which the Administration
lawfully did on 24 June 2024.
Case No. UNDT/NBI/2024/044
Order No. 85 (NBI/2024)
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19. This appears to be in complete accord with the applicable staff regulations
and rules and, in particular, with administrative instruction ST/AI/2010/3/Rev.3,
which addresses the Staff Selection System. As such, the Applicant has failed to
establish that the decision to cancel the RfR job opening and to readvertise it as a
PSJO is prima facie unlawful.
20. Given the cumulative nature of the conditions to be met for the granting of a
suspension of action, the Tribunal does not find it necessary to consider whether
the contested decision is urgent or whether it would cause irreparable
damage. Evangelista UNDT/2011/212; Dougherty UNDT/2011/133.
Conclusion
21. In view of the foregoing, it is ORDERED that the application for suspension
of action pending management evaluation is rejected.
(Signed)
Judge Sean Wallace
Dated this 8
th
day of July 2024
Entered in the Register on this 8
th
day of July 2024
(Signed)
René M. Vargas M., Officer-in-Charge, Nairobi
