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Receivability: the Applicant could not separately challenge the decisions to abolish his post and to create a new one. This does not mean that the Applicant, while contesting his separation from service, cannot raise arguments touching upon prefatory steps taken in the process leading to such decision and which contributed to it. The need for the Tribunal to go beyond the examination of the decision not to renew the Applicant’s contract is particularly acute in the present case, where the decision to abolish the Applicant’s ARR(O) post and to create a new one cannot be dissociated from the ultimate decision not to renew his fixed-term appointment. Whilst the Tribunal is formally seized of the decision to separate the Applicant from service, it may incidentally review the decisions to abolish his post, to create a new one and not to select the Applicant for the newly created post, which are all essentially part of the same transaction. They are additionally directly relevant to the foundation of issues of bias and procedural flaws, as alleged by the Applicant. Therefore, the Tribunal finds the application receivable in its entirety. Allegations of bias The Tribunal is concerned that the documents, which were crucial to the determination of the case and were apparently in the possession of Counsel for the Respondent for some time, were disclosed only at a very late stage of the process, following a request it made during the Deputy Resident Representative’s cross-examination. Whilst these documents were not specifically covered by the orders for production of evidence made by the Tribunal prior to the hearing, as their existence was unknown at the time, the Tribunal finds that the Respondent nevertheless failed to fulfil his disclosure obligations in this case. Applicants cannot have their cases fairly and properly considered by the Tribunal without the Tribunal being fully informed of all matters touching upon the case. The nondisclosure of documents which are clearly relevant goes to the ability of an applicant to form and present his or her case and to the ability of the Tribunal to ensure that proper processes have been followed and are not tainted by ill motivation. The failure to provide relevant documents is the same as misleading the Tribunal. The Tribunal finds that little credibility can be afforded to the witness, whose testimony appears to have been motivated by a desire to justify the contested decision at all cost and to distance herself and her team from it, rather than to assist the Tribunal in finding the truth. The Tribunal finds that the decision to separate the Applicant was not the result of the abolition of his post, as stated in the contested decision, but rather motivated by a desire from the Deputy Resident Representative, supported by the Resident Representative, not to renew the appointment. Procedural irregularities Since the Applicant’s post continued to exist but its job description was modified, it had to be reclassified pursuant to sec. 74 of the UNDP Recruitment and Selection Framework rather than being abolished. In mischaracterising the process as an abolition of post, those involved ensured that the Applicant would not be given priority consideration for the new ARR(O) post, thereby depriving him of the protection under the rules in a situation of reclassification. The Tribunal finds that the abolition of the Applicant’s post was clearly motivated by ulterior motives and done in violation of sec. 74 of the UNDP Recruitment and Selection Framework. The Tribunal finds that whilst additional responsibilities in respect of the operations of the GFATM and audits have been added to the ToRs of the new ARR(O) post, these did not constitute new functions from another technical area, as the Operations Manager was already responsible for leading programmes operations and to act as audit focal point. They were merely additional tasks in respect of the same functions. They certainly did not require a new set of functional or technical competencies and qualifications, as evidenced by the fact that there has been no change in the requirements for the post. Therefore, the Tribunal finds that the re-advertisement of the Applicant’s post contravened sec. 74 of UNDP Recruitment and Selection Framework. Even if re-advertisement was required, the Applicant should have been given priority consideration for the reclassified position, pursuant to sec. 2.5 of the UNDP Rank-in-Post Policy. He would have been retained in his post upon a mere finding of his suitability, irrespective of his rank in the selection process, and any decision not to select him ought to have been justified to the CRP. The role of the Office of Human Resources is not to decide which process would be more transparent or fair but simply to apply the rules. Compliance with rules, not their avoidance, leads to transparency of process. If the application of the rules is to be taken as merely optional, then there is no rule of law or systemic certainty. The Tribunal finds that the decisions to abolish the Applicant’s post and to re-advertise it as a new post were clearly unlawful. The Tribunal stresses that given the express desire of the Deputy Resident Representative and the Resident Representative to separate the Applicant and to retain the incumbent of the GFATM OM post, no credibility whatsoever can be given to this recruitment process, which was clearly tainted by bias on the part of the two main actual decision-makers from the very beginning. The process was also vitiated by several procedural irregularities, all of which contributed to avoid an objective assessment of the candidate and proper scrutiny over the process: the Deputy Resident Representative did not have authority to take decisions on the methodology for the candidates’ assessment. This authority lay with the Resident Representative as hiring manager as hiring manager, the Resident Representative was responsible for the recruitment process and could not further delegate his authority the Deputy Resident Representative decided to forego the written test, given that both candidates were internal candidates already performing functions similar to that of the new post and that a test would delay the recruitment process, which had to be finalised urgently the reasons provided to forego the written test were not legitimate the Deputy Resident Representative participated in the interview process although he declared himself having a conflict of interest due to being the Applicant’s supervisor the Resident Representative also acted as hiring manager but had an undisclosed conflict of interest as he was part of the whole plan to ensure that the process would lead to the separation of the Applicant. He made no attempt to prevent the subversion of the processes by declaring the conflict or any of the prior actions to which he was a party the process was reviewed by the regional CRP in Bangkok, without any attempt being made to refer it to the local review panel as mandated in the applicable rules. In addition to the above, the CRP stated that some key documents to review the selection process, including the corporate interview report and the candidates’ personal history form and qualifications, were not properly signed or were missing. In view of the foregoing, the Tribunal finds that the decision not to select the Applicant for the new ARR(O) post was clearly tainted by bias on the part of the hiring manager, namely the Resident Representative, and the Deputy Resident Representative, both of whom exerted influence on the decision-making process. It was also vitiated by several significant procedural irregularities which, in themselves, render the decision not to select the Applicant for the ARR(O) post unlawful, and further confirm that the decision-makers manipulated the recruitment process to avoid an objective assessment of the candidates and proper scrutiny by the relevant CRP. Having found that the decisions to abolish the Applicant’s post, to create a new ARR(O) post and to advertise it without giving any priority consideration to the Applicant, and ultimately not to select the Applicant for the post were all unlawful, the Tribunal finds that the contested decision to separate the Applicant was equally unlawful.

Accountability referral: the Tribunal referred to the Secretary-General, the Deputy Resident Representative, the Resident Representative and a Human Resources Business Partner for their actions in the case (see paras 47 to 62, 74-83, 90-93, 99-100, 113, 121, 126, 137-141 and 146 of the judgment) and attempts to mislead the Tribunal to justify the contested decision.