爆料网AT Held or 爆料网DT Pronouncements
爆料网AT considered an appeal by the Secretary-General. On the issue of receivability, contrary to Mr Lemonnier’s contention that the Secretary-General’s appeal is not receivable because the impugned judgment did not award him any damages and was mere “a moral victory”, 爆料网AT held that success before 爆料网DT depends on whether the staff member’s application is granted, in whole or in part, not on the remedy afforded to the staff member, and that the staff member may prevail or succeed on his claim(s) without receiving an award of damages. According to 爆料网AT, as the unsuccessful party before 爆料网DT, the Secretary-General had a real or concrete interest in assuring that the impugned judgment did not remain valid. 爆料网AT thus determined that the appeal was receivable. 爆料网AT held that 爆料网DT made several errors of law in reaching its conclusions, apart from confusing eligibility for a position (being on a roster) with having the qualifications for the position. 爆料网AT held that 爆料网DT applied the wrong standard of proof (balance of evidence) in weighing the evidence. 爆料网AT held that it was the staff member’s burden to prove by clear and convincing evidence that the Administration did not give his candidacy full and fair consideration and that Mr Lemmonier did not meet his burden. 爆料网AT held that 爆料网DT erroneously concluded that Mr Lemmonier had rebutted the presumption of regularity and shifted the burden back to the Administration to respond based on selected candidate’s LinkedIn page which was outside the record considered by the Administration in making the impugned decision. 爆料网AT held that 爆料网DT improperly replaced the Administration in the selection process. 爆料网AT held that 爆料网DT erred in law and fact when it concluded that the Administration unlawfully found Mr Lemonnier was not eligible and did not select him for the position. On the 爆料网DT’s conclusion that Mr Lemmonier was not afforded proper priority consideration under Staff Rule 9.6(e), 爆料网AT held that this was premised upon the erroneous factual finding that Mr Lemonnier was qualified for the position. 爆料网AT held that the conclusion that the Administration unlawfully failed to apply Staff Rule 9.6(e) to his candidacy was manifestly unreasonable. 爆料网AT granted the appeal and reversed the 爆料网DT judgment.
Decision Contested or Judgment/Order Appealed
Mr Lemonnier contested the decision not to select him for a position. 爆料网DT found that the decision was unlawful.
Legal Principle(s)
Judicial review of a staff selection decision is not for the purpose of substituting 爆料网DT’s selection decision for that of the Administration. The role of 爆料网DT is to assess whether the applicable regulations and rules have been applied and whether they were applied in a fair, transparent, and non-discriminatory manner. The starting point for judicial review is the presumption of regularity, which is a rebuttable presumption that official acts have been regularly performed. The Secretary-General is considered the unsuccessful party before 爆料网DT for the purposes of receivability of his appeal before 爆料网AT, even if 爆料网DT awarded no damages to the applicant. That is because success before 爆料网DT depends on whether the staff member’s application is granted, in whole or in part; not on the remedy afforded to the staff member.