Judgment No. 4293
The complaint is dismissed.
The complainant challenges the decision not to select him for a post.
selection procedure; complaint dismissed
UNIDO submits that the “claim” for the production of documents relating to the recruitment decision is irreceivable, pursuant to Article VII, paragraph 1, of the Tribunal’s Statute, for failure to exhaust the internal means of redress, because the complainant did not request the documents in the course of his internal appeal. UNIDO states that, moreover, he had not sought review of the administrative decision which rejected his request. UNIDO observes that under Staff Rule 112.02(a) a serving or former staff member who wishes to appeal an administrative decision shall request a review of the decision within 60 days from the date on which the staff member received notification of the decision in writing.
However, a request for the production of documents is not a claim. It is concerned with access to evidence. Receivability is therefore not at issue. Moreover, the Tribunal has stated the basic applicable principles concerning access to documents in consideration 5 of Judgment 4023, as follows:
“According to the case law, a staff member must, as a general rule, have access to all evidence on which the authority bases or intends to base its decision against him, and, under normal circumstances, such evidence cannot be withheld on grounds of confidentiality. It follows that a decision cannot be based on a material document that has been withheld from the concerned staff member. The Tribunal has consistently affirmed the confidentiality of the records of the discussions regarding the merits of the applicants for a post. However, this does not extend to the reports regarding the results of the selection process with appropriate redactions to ensure the confidentiality of third parties (see Judgment 3272, considerations 14 and 15, and the case law cited therein, as well as Judgment 3077, consideration 4).”
ILOAT Judgment(s): 3077, 3272, 4023
new claim; disclosure of evidence
UNIDO submits that the complainant’s challenge to the decision to advertise the P-2 post externally is irreceivable. It argues that that decision was a separate and distinct decision which the complainant should have appealed at the time that the vacancy was announced. This argument is unsustainable. The Tribunal stated, in consideration 17 of Judgment 4008, that, ordinarily, a vacancy announcement is neither a final administrative decision nor a decision which adversely affects an individual staff member. The complainant therefore properly contested the vacancy announcement at the time that he did.
ILOAT Judgment(s): 4008
new claim; vacancy notice; administrative decision
[C]onsistent principle stated in Judgment 4001, consideration 4, for example, has it that a person who challenges the selection of a candidate for a post must demonstrate that there was a serious defect in the selection process. The selection of candidates for promotion is necessarily based on merit and requires a high degree of judgement on the part of those involved in the selection process. Those who would have the Tribunal interfere must demonstrate a serious defect in it; it is not enough simply to assert that one is better qualified than the selected candidate. However, when an organization conducts a competition to fill a post the process must comply with the relevant rules and the case law, as the purpose of competition is to let everyone who wants a post compete for it equally. Precedent therefore demands scrupulous compliance with the rules announced beforehand: tu patere legem quam ipse fecisti.
ILOAT Judgment(s): 4001
patere legem; selection procedure
[T]he complainant argues that the Administration did not pay due regard to equitable geographical representation because at the time of the interview and selection, the country of the selected candidate’s nationality was over-represented. [...] [I]n Judgment 3652, consideration 25, for example, the Tribunal recalled the principle that possession of the nationality of a country which is non-represented or under-represented in the geographic distribution of staff members is only to be taken into account when candidates are equally well qualified.
ILOAT Judgment(s): 3652
nationality; geographical distribution; selection procedure
Since the complainant presents no evidence (as against conjecture) that the selected candidate did not meet the minimum experience required by the vacancy announcement, ground 3 of the complaint is unfounded.
burden of proof