UNAT Held or UNDT Pronouncements
The UNAT found that the UNDT did not err in its framing of the scope of Mr. Kebede’s application, and that his claim of systemic retaliation was not properly before the UNDT. Mr. Kebede only contested the non-selection decision both in his request for management evaluation and application to the UNDT.
The UNDT agreed with the Secretary-General that there was no evidence of material falsehood or misrepresentation by the Administration to the UNDT relating to Mr. Kebede’s rating during the interview for the post. The UNAT noted that the “Partially Satisfactory” rating was an assessment of how Mr. Kebede performed in the interview, rather than an assessment related to his performance in his current job in the prior three years.
The UNAT found that the UNDT erred when it concluded that the Administration failed to minimally show that Mr. Kebede had been fully and fairly considered for the Post. Mr. Kebede was determined to be eligible for the Post, he was shortlisted, invited to participate in a competency-based interview (CBI), and was evaluated on the same competencies as the other shortlisted candidates, using a set of agreed questions.
The UNAT found that the Dispute Tribunal erred in finding that when half of the members of an interview Panel are persons against whom a candidate had made prior complaints, a neutral observer would conclude that the candidate would not be fairly considered in the process. This reasoning by the UNDT was speculative and the test for establishing bias was not met. Accordingly, the UNAT found that the UNDT erred in finding that the non-selection decision was unlawful.
Further, the UNAT held that the UNDT erred in its conclusions about the false statement made by the Secretary-General’s counsel and in its finding that the Secretary-General attempted to hide the truth by initially redacting the names of the panel members from the CBI report.
The UNAT found that if there were to be any referrals with respect to the conduct of the Secretary-General’s counsel, the only avenue was the referral for accountability under Article 10(8) of the UNDT Statute.
The UNAT held that the UNDT’s referral of the Secretary-General’s counsel to his national bar authority, was outside the scope of Article 10(8) of the UNDT Statute and the UNDT exercised its statutory authority improperly in making such referral.
The UNAT granted the Secretary-General’s appeal, dismissed Mr. Kebede's appeal, and reversed the UNDT Judgment.
Decision Contested or Judgment/Order Appealed
A staff member of the United Nations Economic Commission for Africa (UNECA) contested his non-selection for the post of Senior Control and Inventory Assistant.
In Judgment No. UNDT/2025/054, the UNDT rescinded the contested decision, due to its finding that the interview panel was not impartial. As an alternative to rescission, the UNDT set the amount of compensation in lieu at USD 4,514.
The UNDT also referred counsel for the Secretary-General for possible action to enforce accountability for false statements in the UNDT proceedings and referred him to his national bar authority for appropriate action. The UNDT ordered the Secretary-General’s counsel to show cause in writing as to why the Dispute Tribunal should not disbar him from future appearances as a legal representative before the UNDT.
Both the staff member and the Secretary-General appealed the UNDT Judgment.
Legal Principle(s)
An appeal is not an opportunity for the parties to reargue their case. It does not fall to the Appeals Tribunal to conduct a new trial. A party cannot merely repeat on appeal arguments that did not succeed in the lower court. Rather, he or she must demonstrate that the court below has committed an error of fact or law warranting intervention by this Tribunal.
The Tribunals’ role is not to substitute its own decision for that of the Administration, but to assess whether the applicable regulations and rules have been applied, whether they were applied in a fair, transparent, and non-discriminatory manner, and whether the staff member was given full and fair consideration.
The Administration bears an initial burden of proof to minimally show that the staff member’s candidature was given full and fair consideration before that burden shifts to the staff member to prove by clear and convincing evidence that they have been denied a fair chance of promotion or selection.
A legal counsel can be held liable for false facts given by the client if he or she knew or should have known the information was false or where he/she acted with willful blindness.
The legislative intent in establishing a two-tier system was that conduct or issues relating to staff members in the course of their service to the Organization should be handled exclusively by an internal justice mechanism and referred to the Secretary-General in appropriate cases to enforce accountability where necessary.
Outcome
Outcome Extra Text
The Tribunal orders that the name of the counsel for the Secretary-General should be redacted from the impugned UNDT Judgment and any related UNDT orders that are available on the UNDT website.