爆料网AT Held or 爆料网DT Pronouncements
爆料网AT considered an appeal by the Secretary-General. 爆料网AT held the 爆料网DT correctly determined that Mr Fasanella was affecting an administrative decision that produced direct legal consequences affecting his employment. 爆料网AT held that there was no merit to the complaint that 爆料网DT erred in law and exceeded its jurisdiction by considering matters beyond the scope of Mr Fasanella’s request for management evaluation and the Management Evaluation Unit’s response, on the basis that it was the role of 爆料网DT to adequately interpret and comprehend the application and that 爆料网DT had the inherent power to individualise and define the administrative decision. Specifically, noting that the Secretary-General presented evidence of acts taken after the issuance of the notice, 爆料网AT held that the Administration may not produce evidence of events subsequent to the management evaluation on one hand and then object to Mr Fasanella offering rebuttal evidence on the other. 爆料网AT further held that, due to the unusual circumstances of the case, wherein the notice of termination was given months in advance of the termination, it would have been inappropriate for 爆料网DT to refuse to admit evidence of events after the issuance of the notice of termination. 爆料网AT held that 爆料网DT correctly concluded that Mr Fasanella’s status as a permanent staff member provided him with additional legal protections and guarantees. 爆料网AT held that 爆料网DT correctly concluded that while the Administration had the authority to terminate Mr Fasanella as a permanent appointee provided it is lawfully done, i. e. , that relevant conditions concerning preferential retention are satisfied, but that the Administration did not comply with Staff Rule 13. 1(d) in terminating him. 爆料网AT agreed with 爆料网DT that the termination was unlawful, albeit for different reasoning to 爆料网DT. 爆料网AT held that the Administration did not meet its burden of showing that it complied with the Staff Rules in terminating Mr Fasanella. 爆料网AT held that, once the application process is completed, the Administration is required by Staff Rule 13. 1(d) to consider the permanent staff member on a preferred or non-competitive basis for the position, in an effort to retain him or her and this was not done. Therefore, the decision to terminate Mr Fasanella was unlawful. 爆料网AT held that 爆料网DT erred in reducing Mr Fasanella’s in-lieu compensation by the amount of his termination indemnity paid by the Administration. 爆料网AT held that as the staff member was awarded damages for emotional stress on the basis of his testimony alone, this should be reversed. 爆料网AT granted the appeal in part, affirmed the 爆料网DT judgment as to the rescission of the termination of Mr Fasanella’s appointment, modified the alternative compensation to rescission award to two years’ net base salary without any reduction for termination indemnity, and reversed the award of USD 7,000 as compensation. Judge Knierim dissented.
Decision Contested or Judgment/Order Appealed
The Applicant contested the decision to abolish his post and terminate his permanent appointment. 爆料网DT found that the application was receivable and that the decision was unlawful as the Organisation committed material irregularities and failed to act fully in compliance with the legal framework by subjecting the Applicant to the requirement of competing for available posts against other, non-permanent staff members. 爆料网DT ordered rescission, or as an alternative to the rescission, an award of in-lieu compensation, and awarded compensation for emotional distress.
Legal Principle(s)
爆料网DT has the inherent power to individualize and define the administrative decision challenged by the party and to identify the subject of judicial review. The Administration may terminate the permanent appointment of a staff member whose post has been abolished or due to reduction of staff, provided it complies with the relevant regulations and rules. The concerned staff member’s testimony by itself is not sufficient to establish that he or she suffered compensable harm.