UNDT/2020/084, Bissell
The Administration informed the Applicant that “it will issue an administrative reprimand”. The request for management evaluation was made within 60 days of that communication and the application is therefore receivable even if the actual reprimand was issued months later. The Administration decided that the Applicant did not exercise her discretion and regulated her conduct “with the interests of the United Nations only in view” and the expression of her personal views. While there is no specific rule requiring the Applicant to consult with UNICEF before expressing her personal views, that was the bare minimum she should have done to protect the interest of the United Nations as an international civil servant. Therefore, the Tribunal does not find any fault with the Administration’s conclusion that the Applicant’s conduct fell short of that expected of an international civil servant. The decision not to renew the Applicant’s fixed-term appointment because of her conduct was lawful as it would not serve the best interests of the Organization.
Decisions to issue a written reprimand against the Applicant and not to renew her fixed-term appointment
The date of an administrative decision is based on objective elements that both parties (Administration and staff member) can accurately determine. A written reprimand imposed following a preliminary investigation without the disciplinary process is different from a disciplinary action, and it is a matter of the exercise of the Administration’s discretion. The Administration’s discretion is not unfettered. The Dispute Tribunal determines if the decision is legal, rational, procedurally correct, and proportionate. The Tribunal can consider whether relevant matters have been ignored and irrelevant matters considered, and also examine whether the decision is absurd or perverse. But it is not the role of the Dispute Tribunal to consider the correctness of the choice made by the Secretary-General amongst the various courses of action open to him. Nor is it the role of the Tribunal to substitute its own decision for that of the Secretary-General. There can be no exhaustive list of the applicable legal principles in administrative law, but unfairness, unreasonableness, illegality, irrationality, procedural irregularity, bias, capriciousness, arbitrariness and lack of proportionality are some of the grounds on which tribunals may for good reason interfere with the exercise of administrative discretion. The Dispute Tribunal is not conducting a merit-based review, but a judicial review explaining that a judicial review is more concerned with examining how the decision- maker reached the impugned decision and not the merits of the decision-maker’s decision. When a justification is given by the Administration for the exercise of its discretion it must be supported by the facts. The Administration has the duty to act fairly, justly and transparently in dealing with staff members. UNAT upheld a decision not to renew a senior official’s appointment based on the negative impact that allegations then made against the Applicant could have on the Organization.