grn ur\~opsg@ Staff Counci rnD

Secretariat

8 June 2006

Dear Mr. Dervis

We the UNDPIUNFPAIUNOPS Staff Council appro&h you as head of the United Nations Development Programme who has been entrusted by the Secretary General with the implementation and compliance with the UN Staff Regulations and Rules. In our opinion, the United Nations Development Programme, to a lesser extent the United Nations Population Fund and the United Nations Office for Project Services, have significantly departed from the legal framework as promulgated by the Secretary General and fbrther elaborated through jurisprudence of the United Nations Administrative Tribunal. Our particular concern rests with the impleinentation of staff rule 109.1 c) i.e. the practice of "displacing" staff. In this context, at the request of our constit~ients (Field and Heaclqua~tcrs), we have coinmissioned one of the pre- eminent lawyers in UN adniinistrative law to review the compatibility of the corresponding UNDP procedures (due process guidelines), or best practice as it is commonly referred within UNDP, with thc jurisprudence of the United Nations Tribunal.

As you can see from the attached brief, the practice of floating ("displacing") staff or providing non-specific liens during absences, essentially places them at an immediate disadvantage vis-h- vis their colleagues regardless of contractual status and the right for a classified job in accordance with replation 2.1 is violated. This disadvantage is compounded by the absence of a review board ensuring that due rights of "displaced" staff are respected. The practice of "displacing" staff (job fairs) has de jizcfo become a managerial tool for replacing existing staff with new staff. Thc Tribunal has consistently interpreted the Staff Regulations and Rules as prohibiting the manipulative use of mailagerial discretion over administrative matters for thc purpose of elimination staff. The concept of re-profiling was originally intended to mitigate ~tnntzticipaterl external (exogenous) changes. In the absence of an organization wide strategy for change or external developments warranting such a change, this extra-ordinary tool has become the prerogativc of managers to re-profile organizational units to their personal preference.

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Secretariat

Mr. Dervis, the current practice of displacing staff is not in conformity with the staff rules nor is i t in the interest of the United Nations system. Continued litigation is costly in tenns of financial resources and detrimental to the staff morale. We have raised this issue at all levels within UNDP. Since we have not been given any indication that our concerns have been taken seriously, our constituents have requested us to urgently meet with you on this matter.

Chair, UNDP/UNFPA/UNOPS 33"' Staff Council

Mr. Icema1 Dervis Administrator UNDP

Cc: ICofi Annan - UN Secretary General Thoraya Obaid - UNFPA, Exccutive Director Gilberto Flores - UNOPS, Executive Director a.i. Christopher Burnham - UNlDepartment of Management, Under Secretary General Alicia Barcena - UN Chef de Cabinet Ad Mellcert - UNDP, Associate Administrator Jan Mattsson - UNDPIBureau of Management, Assistant Administrator and Director

304 E. 45'"t.. Room 812. New York. NY 10017. USA Tel: (212) 906-5097 Fax (212) 906-6987 reqistw.staff- council~undp.orq

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3 1 Mi iy 2006 hLr. Dimitri Samaras Chairman, WDPIUNFPNUNOPS Staff Council 304 East 45'St. Room FI: 810 New York, N Y 10017

Re Comments on Due Process Guidelines for Displaced StaFfiLlembers

Dear iLLr Samaras,

I am forwarding herewith a legal opinion prepared at the request o f the Stat? Council. I hope this opinion wil l assist you in your disci~ssions.

Ln addition I have a few specific comments on the guidelines

The starting point for disci~ssing the due process rights o f displaced staff i s in examining how they are displaced. Budgetary posts are established and abolished in principle by legislative organs on the basis o f a prograrnme budget. However, given the nature o f funding i t has become more and more common tbr the administration to allocate resources unilaterally. This involves, irrrrr crlicr, the elimination o f permanent posts in favor o f ~ i s i n g tincis for short term hiring, The increased use o f job fairs to declare posts vacant and replace existing staff with new candidates also results in more clisplacecl staff There i s little or no review o f these processes and no due process For those aRected.

The due process ~uidelines as proposed apply onLy to LOO series staff. I t is not clear why 200 ancl even 300 series statTmembers have been L~~mped together with non- staff members on SSA's or Service Contracts. I t i s also not clear what meusures are intended for UNFPA and UNOPS statT. While there may be differences in treatment between 100 series staff and others, serving staff o f all categolies and in all agencies should be afforded due process and giver] consideratioil for reassignment.

A litec-a1 [reading o f StaffRule 109. I ( c) implies that statTon tixed term or short terrn appointments should be replacecl by those ~ v i t h permanent appointments in the event that staff must be recl~iced. A q~hestion therefore arises as to the meaning o f "vacancy". A post filed by a short term contract holder should be considered vacant at the moment the contract expires, requiring a competitive selectiorl procedure in which the rules o f preference apply.

Regarding the search period, 1 see no reason why the search period need be limiteil to three months, given the limited opportunities for reassignment that this represents. I t seems s in duly short for a good hi th etfort to place statfand seems only to serve as an advance notice of termination. The implications are clear. Given the fact that proposals for redeploying staff are made well in advance, there is no reason to wait to provide notice to those affected. I am attaching a copy of an excerpt From the UNtCEF Human Resources i\ilaniial developed several years ago (I don't know if it has since been amended) to give an idea of better alternatives.

The same principle holds true for notice to fixed term staffwith less than five years of service. The one month notice of non-renewal is a minimum and should not prevent a longer notice period ifpossible where there is a reorganization, job fair, etc.

One of the most critical elements of due process involves the interpretation OF the term "preference" as i t applies to competition for posts. The eFfort to reassign staff reqiiires a written record of placement efforts including a demonstration O F what preference was given to displaced staff in considering them €or vacancies. A written jiistificatiori s h o ~ ~ l d be provided for rejectins any preferred candidacy in favor of another candidate who does not have preference. The written records sho~ild be made available to staFfupon request. They should also be provided to ajoint body set up to review selections before they are tinal in order to jiistify the rejection of a preferred candidate and to ensure that preferrecl candidates are considerecl for ail available vacancies, rinother option is to corisider displaced statfa~itomatically for any post within their occupational group before i t is p ~ i t up For circ~ilation as a vacancy (this approach was iised in the UN).

In the event stat'fare reassigned, they have a right to keep the protections oftheir contractual status regardless of the nature of the post they encumber. This includes the right to a properly classif~ed job in accordance with S t a r Reg~liation 2 . 1

7 .

[ h e provisions in Section L[I governing secondment are ind duly restrictive and nlay be in conflict with the Inter-Organizational Agreement on transfer, secondment and loan of s t aK The restrictions placed on the use oFliens will disco~irage mobility and inhibit career developtnent ant1 sho~lld be re-thought. . .

Plcasz also n u t t that tile instructions do not mention the important issue of visa status For those C-4 visa holders who opt t'or one of the alternatives provided. It should be made clear to thern i n advarice that this confers no right to remain in the host country.

Sincerely yours,

LEGAL OPLNlON

Submitted to tile UINDOIUNFP,-VUNOPS StnlTCouncil

iC.lay, 2006

Law OlKces of George G. I~vilrg

The issue presented and disciissed hereafter concerns the rights of staff members who are

atrected by reorganizations and restructilring, primarily through the abolition of enc~lmbered

posts. The essential question posed is what legal protections and guarantees of job seciirity are

offered career international civil servants iri the event oFbudgetary or programmatic changes

within the Organization aEFecting the posts they occupy.

While both the UN and [LO Administrative Tribunals have a well established bocly of

jurisprudence recognizing the rights of permanent and long serving staFf to protection of their job

security in the event O F retrenchment, the enforcement of these principles has proven increasingly

dificult as it has become easier to circumvent the original intent behind the staff reg~llations and

niles. Furthermore, the appeals machinery and tribunal procedures can only deal with individual

cases rather than policy matters. Therefore the critical questions O F good faith and fair dealing

that are inherent in the regulations and rules are left €or matters of individual interpretation in a

case by case analysis

Nevertheless, there are a number of legal precedents o f a binding nature that apply in such

cases. Although what is provided hereafter reflects a general body O F applicable law, i t should be

,

noted that without an impartial mechanism to review the decisions that are taken, legal principles

can easily be circumvented. Specitically, posts are not always abolished; they [nay be redesigned

and advertised as new vacancies without any safeguards for the incumbents. Whereas posts are

technically established and abolished by the legislative organ, this has become increasing a

h n c t i o n o f management w i ih little o r no oversight. Similarly, the practice o f floating staff o r

providing non-specific Liens during absences, essentially places them at an immediate disadvantage

vis-a-vis their colleagues, regardless o f contractual status. Thus the starting point for discussion

s h o ~ ~ l d not be what happens to displaced staffmembers b ~ ~ t rather what are the modalities

whereby statTbecome displaced. Most importantly, the notion of"preferenceU in the filling o f

vacancies i s meaningless unless i t i s clearly defined, documented and subject to review In the past.

specitic redeployment proced~tres were put into place which provided for a comparative analysis

o f those atfected by displacement and ensured that the due process rights o f displaced staffwere

respected. I t i s not clear whether those procedures continue to be applicable or not. I t i s

therefore strongly urged that priority be given to settiny u p a joint review body that can hear and

consider claims, review cases prior to termination and oversee the tilling a vacancies.

TI. T h e S t ; ~ H ' a t ~ d l iegul :~t ior ls a n d l iules

Article 1X o f ihe Staff Regulations governs separation k o m service. Regulatiori 9. [(a)

provides the Secretary-General with broad discretion in terminating the appointment ot'staR

~nernbers wi th permanent appointments, due, itrler trlitr, to the necessities o f the service recli~iring

aboliiiorl o f post or reduction o f statY. ~insatisi'actory performance 01. reasons o f health

Regulation 9. 1(b) providzs the same with regard to statf on b e d term appointments

Regulation 9 I( c ) provides ibr termination of appointment for all other staff, including those on

probationary contracts, i F s ~ ~ c h action w o ~ ~ l c l be in the best interest of the United Nations.

In furtherance of these Regulations, which ~intil now have never been modified or

cancelled by the General Assembly, Staff Rule 109 1( c ) goes on to describe the order of

preference to be applied in cases where the necessities of service require the abolition of post o r

reduction in staff, Lt provides that staff on permanent appointments will be retained in preference

to those on all other types of appointment and those on probationary appointments will be

retained in prekrence to those on fixed term, subject to the availability of suitable posts. I t

provides fi~rther that due regard shall be had in all cases to relative competence, to integrity and to

length of service:

"Except as othenvise expressly provided in paragraph (b) below, if the necessities ot'the service require abolition o f a post or reduction of the statf, and s~tbject to the availability of s ~ ~ i t a b l e posts in which their services can be etfectively utitized, statfmembers with permanent or regular appointments shall be retained in preFerence to those on all other types of appointments, and staEFmembers with probationary appointments shall be retained in pre&rence to those on fixed term or indefinite appointments, provided that due regard shall be had in all cases to relative competence, to integity and to length of service. Due regard shall also be had to nationality in the c a s e o f statfmembers with not more

than five years of service and in the case of statfmembers who have changed their nationality within the preczding five years when the suitable posts available are silbject to the principle of geograpl~ical distribution."

Stal'iRuie 109. I ( c ) is at the heart o f t h e protections afforded to st if iwith permanent

appointments and those on fixed term appointments with long service to the Organization, i.e.

c~rrrently defined as five years or more of continiling satisfactory sewice. Literally, this provision

requires that contractual status and seniority take preference over other considerations in

allocating Limited resources. In the explicit words of the Tribunal, "According to staff rule 109.1

(c), s taffon permanent appointments must be retained in preference to statfon fixed term

appointments." (Judgement No . 1072, Chuteaux (2002) This rule has been consistently

interpreted to mean that, at a minimum, a good Faith effort must be made to tincl alternative posts

for those long serving staRwhose posts are abolished or whose programmes are curtailed. Such

a review is not limited by the rules to a particular office, department or duty station, nor by a

parlicular time kame. Furthermore, once the administration's efforts to comply with these

requirements are seriously called into question, i t is incumbent on the administration to

demonstrate that those rerl~~irements have been met. (Judgement 910, (1998) para. [V,

citing Judgement No. 447, Xbbas (1989))

TLI. Liriiits on Discretiooiily Authori ty

The discretionary authority of the Secretary-General to terminate appointinents is far korn

absolute. This concli~sion has been underlined numerous times in the jurisprudence of the United

Nations Administrative Tribunal. tn one of its earliest clecisions, the Tribilnal stipuiatecl that the

Secretary-General's discretionary a~~thor i ty to terminate statTmembers "is limited by the Charter,

the resolutions of the General Assembly, by StofYReg~~lations anc! by StatYRules, and by other

instnlments defining the rights and obligations o f members of the Secretariat" (Judgement N o s :

I-Iowrani. ( I95 !), para. ! ). That same opinion went on to set out clearly what the rights of both

temporary and permanent staRin such circurnstailces are:

"That in the case of termination of employees with service ratings of"satisfactory" o r better, there is a presumptive right to consideration For posts elsewhere in the Secretariat for which their qualifications are appropriate, and that an essential of due process is either an aFfirnative showing that reasonable efforts were made to place silch employees in other posts, or a statement ofreason why this was not done. (Ibid., para.6)

The organization's burden of proof includes an atfirnative showing that the staff member

was considered For available posts and was not found suitable tbr any of them prior to termination

(J~idgement No, 85: CCI,:\-on (1 962) para. 8)

Another early decision of the Tribunal specitied that the a ~ ~ t h o r i t y of the Secretary-General

tinder StatT[iegulation 9 . I is not absolute:

"LVkile the measure of power here was intended to be lei3 completely within the discretion of the Secretary-General, this wo~ild not authorize an arbitrary or capricious exercise of the power of termination, nor the assignment of specious or ~ in t ru thh l reasons For the action taken, such as would connote a lack of good Faith or clue consideration For the rights of the statfmember involved." (Judgemer~t No , 54: i\/laitch, 1954, para.5)

The intn~siocl of financial constraints associated with reorganization or retrenchment cloes

not absolve the Administrat1011 o f i t r contractual obligations towards serving statt:

"While the Tribunal does not underestimate the importance of these [financial] considerations, it is concerned that the need For economy' may come in the way of protections that should normally be available in it timely fashion to staFFmembers, as provided in the StatTKegulations and Rules. For, in some cases this can be tantamount to deprivation of rights." [Judgement No . 462: Cvfurohy, para.VI]

Furthemlore, the discretionary authority to reassign, redeploy, and terminate statrmay not

simply be justified as programmatic decisions if they are improperly motivated. While subjective

intent may be clitticuit to prove, i t may he demonstrated by a pattern of conduct culminating the

6

use of redeployment as an excuse to get rid of the staff member ( Judgement N o 1069,

Madushahi (2002)

TV. Procedur:il due process

The Tribunal has noted that redeployment procedures must not be used as a pretext for

termination and has objected specifically to the use ofabolition of post to target an individual staff

member:

"The only post abolished in the retleployment exercise was one o c c ~ ~ p i e d by a s t a E member on a permanent appointment, which means that the Applicant was terminated under the pretest of redeployment, without having been considered on a preferential basis, as he should have been in the event of the abolition of his post, in accordance with staR rule 109.1 (c) ." Judgement No. 1072, Chuteaux (2002) XI)

[n acldition to qilestionir~g tlie motive behind discretionary decisions, the Tribunal has

~ r m e d the need to respect procedural safe~vards in implementing decisions. The Trib~inal has

held that prejudice can be adduced from a failure to follow procedural requirements (Judgement

No, 521: &t& (1991). The KO hdrninistrative Tribunal has f o ~ ~ n d that "proof of prejudice is

rendered unnecessary when procedural requirements have not been observed." (Jt~dgement

No.495: Olivares Silv;~ (1982), para. 16) The LLO Triburial.specificiilly applied this principle

regartling respect for procedilral due process to a case involving non-renewal of contract due to

abolition of post in Judgement No. 1\91: In re de Ar~da (1992) and concluded that the failure to

rnakea genuine effort to carry O L I ~ the procedures for reassignment of staffi'varranted

reinstatement of the separated statt'member, proper compliance with the procedures and payment

of compensation for inoral damages on the grounds that,

"Where a post is abolished compliance wi th the reduction-in-force procedure is a condit ion prececlent to termination o f tile holder's appointment." [para. 121 T h e procedural req~lirements associated wi th the irriplementation o f Rule 109. I(c) have

been interpreted by the Tribunal as necessitating that a good faith e b r t be undertaken to find

s ~ ~ i t a b l e alternative posts for serving staff in the event o f a retrenchment o r abolition o f post. (c.F.

J~ldgements N o 501 (1990) and N o 459 hloore-Vloodroffe ((1989)) The exact

requirements and definition o f a good faith effort have been applied on a case by case basis, taking

into account such factors as type and length o f contract, availability o f posts, past performance

and evidence o f placement efforts i t clearly requires more than aproforrrr~r exercise and implies

a serious et-fort at identiQing alternative assignments over an extended periocl oFtime. The

precise g~liclelines to be followed in meeting tile recl~~iremerits for a bona ficle etyort at

reassignment were set forth i n a memorandum o f law to the Chief o f Stat-f Services, OPS, dated

14 December L979:

"The propr-iety o f t h e Adrrinistration terminating the appointment o f a stat-frnember who holds a permanent appointment is dependant upon strictly ibl loiving the procedilre set out in staiT rule 109, I (c). The United Nations Administrative 'Tribunal has consistently held that the validity o f a ternunation under this provision depends on clearly demonstrating that the stat-fmeniber concerned c o ~ i l d ndt be retained in accordance wi th staffnl le 109.1 (c). The T r ib~ lna l has held that the Administration must demonstrate that the staffmemb'er concerned was in fact fc~irly crml objectively considered for available posts and ivas fnirly crncl objectively not found suitable for any o f them. T i l e Tribunal has pointzd out that this burden is not discharged by a sin~ple assertion that the statfrnernber rvas not suitable, but this fact must be clearly demonstrated and proved e.g, by a contemporaneous mernoruntlum wlxich sets out the cletails o f the qilalit ication recl~iired for all available posts and explilins i n each case why the particular staff member to be termiiiated i s not s~l i table for each o f those posts." [UIV.Jrrritliccrl Yecrrbook, 1979. p. 1891

The T r i b ~ ~ n a l has tleld, "the bur-den o f p roo f o f having given consideratiori i s on the

Respondent whenever a staff member c~~~est io r ls that such consicleration was given. Secontlly.

Such consideration must to some measurable degree meet the criterion o f "fullest regard' in a

reasonable manner. And linally, there must be good faith and consciousness o f all the

circ~imstances surro~inding any claim." (Judgement 447: & (1989) VII) The Tribiirial has

noted that the efforts to place a dislocated staff member must be undertaken in good faith "in view

o f all the circ~~mstances presented" which include proximity to retirement, family considerations,

health and availability o fo the r suitable assignments." (Judgment No. 943: Y ~ m g (1999) iX)

Assignments that are temporary, probationary or involve indue hardship w i l l not satis@ the rules.

The legal requirements o f s ta f fn i le 109. I (c) have beer1 stipulated by the Tribunal as follows:

"This rule i s interpreted to mean that a good faith ertbrt must be made by the Organization to find alteniative posts for permanent staff members whose posts are abolished. The 'Respondent must show that the staff member was considered for available posts and was not found silitable for any o f them prior to termination (cf Judgement N o . 85: Carson (1962)). The Trih~cnai has held in the past that where there is a doubt that a staff member has been afforded reasonable consideration, i t is inc~imbent on the iidministration to prove that such consideration was given (c f Judgement No , 447, i\i-rbas (l989)." (Judgement N o . 910 Soares (1998) I1T)

i n applyiriy this principle, the Tribunal required the administration to produce evidence that i t

exercised " d ~ i e diligence and necessary good faith eRortsU to place the statt'mernber in a suitable

positiocl prior to termination. (Judgement No. I 17-8, Bane~jee (2003) This implies more than a p r o

jorrnrr search period o f l imited duration diiring which tlie statt'mernber is allowed ro present himseli

as it canclidate for ine encumbered posts. i t implies, as set forth specifically in t l ie Barieqee case> that

the Adnlinistration makes sure "there i s no other staff member with less seniority o r ~v i tho i i t

permanent contract or with less disting~iished service to the United Nations" ivho can be clisplaced,

that the statt'mernber h i ~ s priority over external conipetitors artd there be more than a perfunctory

ackno~vledyement o f applications to posts. ( lbid.)

In Judyement No 679 (1994) the Tnbunal ordered reinstatement on the grounds

that the etTorts to place a permanent coiltract holder who had been terminated for abolition of

post were tainted by irregularities and pre j~~dice arising from a dispute over her previous

performance evaluation, which had not been resolved. It further found that a search Fol

alternative posts over a period of nearly a year, involving numerous reviews for vacancies by the

appointment and promotion bodies, shoi~ld not be considered exceptional It noted further that,

' T h e Tribunal has referred repeatedly to the application O F this provision, which is vital to the security o f s t a f f ~ v h q , having acquired permanent status, must be presumed to meet the Organization's requirements regarding q~~alifications. in this connection, while ettbrts to find alternative employment cannot be unduly prolonged and the person concerned is required to cooperate hlly in these efforts, s tdTrule 109.1 ( c ) requires that such efforts be conducted in good faith and with a view to avoiding, to the greatest extent possible, a situation in which the statTmember who has made a career within the Organization tbr a s~~bstant ia l period of his or her professional life is disnlissed and forced to ~lndergo belated and uncertain professional relocation." [para. XCCT]

One of the critical elements in ensuring that a staff member is accorded fair consideration

for other assigrunents is ilp-to-date performance evaluations. judgement No, 501: (1990)

is indicative of this concern. ..\lthough the Trib~inal found that follo~ving the abolition of his post,

efforts were made to find a suitable alternative post, those efforts were compromised by the lack

of ciirrent ktncl accurate performance evaluation reports which constituted a denial of due process

V Fixed term appointments

clear preference over others for being retained in service, the obligation to atTorcl due diligence to

10

those on fixed term appointments who are displaced i s no less clear, particularly those who have .

five years or more o f continuing service In fact, the Tribunal has in certain cases afforded these

staff members a heightened scn~tiny in view o f the Fact that they are rpso fnclo in a more

precarious situation. In particular, a reorganization or redeployment cannot be used simply to

disgilise a non-renewal ofcontract based on other considerations. In J~ldgement No. 466:

iL.Lonteiro-Aiavon (1989) involving the non-renewal o f a 6xed term appointment on the grounds

o f abolition o f post, the Tribunal held,

"The fact that fixed term appointments - even for a staffmember who held such appointments tbr a long time - do not ordinarily carry any legal expectation o f extension, did not justify, in the opinion o f the Tribunal, the termination o f the Applicant's ernployment in the way i t was clone in this case . . . the Tribunal is leR with the impression that the decision was already taken to get r id o f the Applicant and reasons for doing so were found later" [paras. V-VIT].

Whether a staff member on a l i ~ e d term appointment has a legal expectancy o f Further

employment is a cluestion o f h c t which the Tribunal will adduce from the totality o f circumstances

surroilnding the contract. Such an expectancy may be inferred From the circ~~mstances

surroundirig the staff member-'s employment and may create an obligatior~ on the part OF the

Admirustration to provide continuing en~ployment (Judgement No, 142: Bhattachawva (1971,

paras. XI and X). Likewise, in accordarice with StaAReg~llation 4.4, the Organization i s no less

obligated to ~lndertake a good faith etl'ort to find alternative assignments, in particular taking into

account the statl'rnernber's senior-ity vis-a-vis staff member-s with fewer- years ofse'rvice (m., para. XI).

The special consideration afforcled to those staff members serving on tixecl term

I I

a.ppointments for five years or longer has been formally recognized. The General Assembly

addressed this issue directly when i t adopted Kesolution 371126 which provided, "staff members

on tixed term appointments upon completion of five years of continiiing good service shall be

given every reasonable consideration for a career appointment" [para. 5, Section IV]. The

follo~ving year the General Assembly in its resolution 38/23? recommended, "that the

organizations normally dispense with the requirement For a probationary appoinrment as a

prereq~~is i te for a career appointment following a period of five years' satisfactory service on Eixed

term contracts". [para.S, Section VI].

The Tribunal applied these directives in its Judgement No. 482: @iu.Zhou and Yao (1990)

recosnizing a pres~~mptive right of those statt'on fixed temi appointments for five years or longer

and with satisfactory service to a reasonable expectation ofcontinued service and conversion to

career appointments.

Following the issuance of Judgment No. 482, i t has been the recognized practice to accord

staff with five years of contin~ious satishctory service on fi.xed term appointments the same

reasonable consideration for reassignment as those on probationary or permanent contracts.

'The Report of the Secreta~y-General to the General r\ss~mbly on Human Resources ILLanagenent

[A/C.5/5 1/34 o f 2 2 Noverrlber 19961: has cogently explainetl the legal principles involved in

expectatiolls of corl t in~~ed employmerit of fixed term statf

"While reattirming that the fixed term appointment, by its terms, does not create an expectancy o f renewal, the Tribunal examines all the s~ inound ing circumstances to cletermine whether an expectancy of renewal was created in the particular case - for

example through a verbal or written commitment, albeit informal, made to the staff member by the programme manager that the appointment woiild be renewed. In addition, staff members who have served on fixecl term appointments for an extended period (iisually five years or more) are recognized by the T r i b ~ ~ n a l as liaving the right to receive every reasonable consideration for hr ther employment. Even though tiis does not amount to a le$al expectancy of continued employment, which would be contrary to the specific terms of a fixed term appointment, a finding that the Organization failed to give every reasonable consideration €01- Further employment will result in the award of damages that may be substantial. Finally, even in those cases where the decision not to renew was purely discretionary, the Trib~inal always gives carehl attention to the issiie of whether the decision was affectecl by lack of due process, mistake of t k t , prejudice or other extraneous motives. in s i~ch cilses, the Tribunal ~voillci normally award damages to the statTniember whose appointment was allowed to expire, on the ground that i t is an implied coriditiori of employment that all decisions, inclucling a decision not to renew an appointment, are taken fairly and in the interests of the Organization."

VI. Conclusion

The consistent jiirispruclence of the Tribunal over many years has resulted in a body of law

that recognizes the importance of long term arid career staR by virtue of their demonstrable

contributioils to the Organization. This in turn has given rise to recognition of rights and

protectioris of those international civil servants who have macle a coinmitment to the work of the

Organization, which s~~persecles the immediate managerial and financial decisions of the moment.

The Staff Regulations and Rules have been consistently interpreted as prohibiting the

maiiipulative L I S ~ of nianageriai discretion over aclmiriistrative matters €01. the purpose of

eliminating staly, Unless aricl until the Ger~eral Assembly amends its reyiilations to change the

concept of permanent appointment, these pririciples contirliie to apply.