Appointment without competition (686,-666)

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Keywords: Appointment without competition
Total judgments found: 11

• Judgment 4853

  
  138th Session, 2024
  Food and Agriculture Organization of the United Nations
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the direct appointment, ad interim, of Mr F. to the position of Director, Agricultural Development Economics Division.

  Considerations 9-11

  Extract:

  It is tolerably clear that the case law establishes, in the context of the filling of a post following a competition, that a person who has not participated in the competition does not have a cause of action to challenge the competition (see, for example, in recent Judgment 4702, consideration 3). Indeed, if a person participates in the competition but was admitted to it erroneously, they have no cause of action if they were not eligible for the position (see Judgment 4087, considerations 6 and 7). One obvious rationale for this approach is that participation in the competition is a manifestation of interest in the position on the part of the complainant, with corresponding injury to that person if not appointed, who can then challenge the lawfulness of the competition and appointment. It would be an extremely curious result that a complainant who did not have an interest in a position (either immediate or longer term and thus risk of immediate or future injury) filled by appointment without competition, rather than by competition, had a significantly broader basis for challenging the appointment. The obvious question which arises is what is the credible basis for confining standing to challenge an appointment following a competition to those who participated in the competition, but not confining standing in a similar or analogous situation concerning an appointment without competition. If the latter is confined only by eligibility for appointment, the obvious question which arises is why would that not also be so of an appointment following a competition. The coherent answer lies in whether the complainant had an interest in the lawfulness of the filling of the position. That would derive from having an interest, either immediate or longer term, in the filling of the position.
  The touchstone of the Tribunal’s jurisdiction is its Statute. Having regard to Article II, it concerns non-observance, in substance or in form, of the terms of appointment of officials and other provisions of the Staff Regulations. The relevant impugned decision must adversely affect the complainant’s rights or interests, or cause her or him injury, or be likely to cause injury (see, for example, Judgment 2670, consideration 5). This concerns legal rights or interests. As the Tribunal said in Judgment 4672, consideration 4:
  “The Tribunal’s jurisdiction centres on whether there has been a reviewable administrative decision which, in turn, implies any act by an officer of an organisation which has a legal effect (see Judgments 4499, consideration 8, 3141, consideration 21, and 532, consideration 3).”
  Plainly, if there is evidence that a staff member has manifested an interest in a position, then she or he has an interest in the preservation of the position for possible future appointment to it. That interest may be expressed, for example, by the staff member applying for the position in a competition. An interest might be inferred from all the circumstances, which might include that occupying the position would be a logical career progression or development for the staff member concerned. But, in the absence of evidence of interest, it is very difficult to discern what legal interest the staff member has in ensuring that the position, if filled, has been filled lawfully. Put slightly differently, it is difficult to discern what legal effect the appointment of another person to a position has on a staff member who has no interest in that position, even if she or he is qualified to be appointed to it.

  Reference(s)

  ILOAT Judgment(s): 4087, 4672, 4702
  

  Keywords:

  appointment; appointment without competition; cause of action; competition;
  

  Consideration 12

  Extract:

  [T]he complainant clearly did not aspire to occupy the post of Director, ESA, in April 2017, when the vacancy notice was published. He did not apply for the position. He then had no legally enforceable interest in the steps which were, or were not taken, to fill the position. That is to say, any legal flaws in the selection process did not affect his rights or interests nor cause him injury. These facts would sustain an inference that in spring 2018, when the post was filled, his lack of interest in the position continued. It is true, and the Tribunal must recognise, that this was one year later. However, the complainant does not contend in his pleas that by spring 2018 he then had an interest in the position. Nor did the objective circumstances sustain an inference that he had. Accordingly, any procedural or other defects in the appointment of Mr F. in spring 2018 did not adversely affect his legal rights, or interests, or cause him injury.

  Keywords:

  appointment; appointment without competition; competition; no cause of action;
  

  Judgment keywords

  Keywords:

  appointment without competition; competition cancelled; complaint dismissed; no cause of action;
  

  Consideration 6

  Extract:

  [T]he case law concerning a complainant challenging an appointment following a competition in which they did not compete and, accordingly, have no cause of action, informs the scope of the applicable principles, both when considering appointments following a competition and appointments which do not. Those principles should be coherent and consistent.

  Keywords:

  appointment; appointment without competition; cause of action; competition;
  

  
  
  

• Judgment 4852

  
  138th Session, 2024
  Food and Agriculture Organization of the United Nations
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the appointment, by lateral transfer, of another official to the position of Director, FAO Liaison Office in Geneva.

  Consideration 6

  Extract:

  [I]t cannot be assumed that one member of staff has an unfettered right to challenge the transfer of another member of staff (see Judgment 2670, consideration 5).

  Reference(s)

  ILOAT Judgment(s): 2670
  

  Keywords:

  appointment without competition; cause of action; transfer;
  

  Judgment keywords

  Keywords:

  appointment without competition; complaint dismissed;
  

  Considerations 12, 14-15

  Extract:

  What the complainant is arguing is, in substance, that in appointing Ms R.B. the Director-General was making a choice between her and the complainant (and perhaps others), and the failure to choose him was infected by, amongst other things, bias and prejudice towards him. The difficulty with this argument is that there is no direct evidence that such a choice was being made nor can an inference reasonably be drawn that it was.
  […]
  As the Tribunal observed in Judgment 4690, consideration 13, when addressing the statement made by the Tribunal in Judgment 3669, consideration 12, and similar cases regarding the reliance on earlier evidence of bias and prejudice to prove the true character of alleged bias and prejudice in later conduct:
  “There is probably no overarching principle which will determine the admissibility of evidence concerning earlier events in every case. At least in a case such as the present, the question of admissibility should be determined by reference to the specific facts of the case.”
  In this case, the evidence of the complainant and the arguments based on it about prior bias and prejudice is not, in the circumstances, relevant to the legality of the decision to transfer Ms R.B. There was no choice being made of the type on which the complainant’s arguments rely. Accordingly, much of the argument of the complainant is not founded and lacks any admissible evidentiary underpinning.

  Reference(s)

  ILOAT Judgment(s): 3669, 4690
  

  Keywords:

  appointment without competition; bias; burden of proof; evidence; prejudice;
  

  
  
  

• Judgment 4774

  
  137th Session, 2024
  Food and Agriculture Organization of the United Nations
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to appoint another official to a post at grade D-2.

  Judgment keywords

  Keywords:

  appointment without competition; complaint dismissed; roster;
  

  
  
  

• Judgment 4773

  
  137th Session, 2024
  Food and Agriculture Organization of the United Nations
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the appointment of another official by lateral transfer.

  Consideration 6

  Extract:

  The defendant organisation does not raise as an issue the question of whether the complainant has a cause of action concerning the appointment of Ms Y.S. or otherwise put in issue the receivability of the complaint insofar as it directly challenges that appointment. However, it cannot be assumed that one member of staff has an unfettered right to challenge the transfer of another member of staff (see Judgment 2670, consideration 5).

  Reference(s)

  ILOAT Judgment(s): 2670
  

  Keywords:

  appointment without competition; cause of action;
  

  Judgment keywords

  Keywords:

  appointment without competition; complaint dismissed; transfer;
  

  
  
  

• Judgment 4771

  
  137th Session, 2024
  Food and Agriculture Organization of the United Nations
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the appointment of another official by lateral transfer.

  Judgment keywords

  Keywords:

  appointment without competition; complaint dismissed; transfer;
  

  Consideration 5

  Extract:

  The defendant organisation does not raise as an issue the question of whether the complainant has a cause of action concerning the appointment of Mr D. or otherwise put in issue the receivability of the complaint insofar as it directly challenges that appointment. However, it cannot be assumed that one member of staff has an unfettered right to challenge the transfer of another member of staff (see Judgment 2670, consideration 5).

  Reference(s)

  ILOAT Judgment(s): 2670
  

  Keywords:

  appointment without competition; cause of action;
  

  
  
  

• Judgment 4687

  
  136th Session, 2023
  World Health Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to terminate her appointment after she refused two reassignments.

  Consideration 8

  Extract:

  One legal issue presented for consideration by the pleas is whether the power to reassign an official to such a position is in any way conditioned or qualified in circumstances where a competition is on foot to fill the position. While it is not explicitly put this way by the complainant, it is the import of one of her pleas. There are a number of cases where the Tribunal has considered the direct appointment of a person to a position in circumstances where it denied the complainant “a right to compete” (see generally Judgments 4069, 3742, 3288 and 2959). By parity of reasoning, and notwithstanding the unequivocal bias just referred to, the decision to appoint the complainant, by way of reassignment, to the position in Cameroon deprived those who had entered the competition following the 27 December 2017 vacancy announcement of their right to compete and for each to have their candidature assessed on its merits. Deprivation of that right would involve a breach of WHO’s duty to act in good faith (see Judgments 4619, consideration 8, and 4618, consideration 8) to those who entered the competition. Consistent with the existence of this duty to act in good faith, the power to fill a position by reassignment, should not be interpreted as authorising reassignment
  to a position when a competition is on foot to fill the very same position. There is an implied limitation on the exercise of the power to reassign. Thus, the decision of 12 January 2018 to reassign the complainant to the position in Cameroon was not lawful. Accordingly, the decision of 16 March 2018 to terminate her employment because she had refused the reassignment, was tainted by the unlawfulness of the reassignment decision and the decision to terminate should be set aside.

  Reference(s)

  ILOAT Judgment(s): 2959, 3288, 3742, 4069, 4618, 4619
  

  Keywords:

  appointment; appointment without competition; reassignment; selection procedure; termination of employment; transfer;
  

  
  
  

• Judgment 4521

  
  134th Session, 2022
  International Atomic Energy Agency
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the short-term appointment of a staff member.

  Judgment keywords

  Keywords:

  appointment without competition; complaint dismissed; selection procedure;
  

  
  
  

• Judgment 4507

  
  134th Session, 2022
  Organisation for the Prohibition of Chemical Weapons
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant impugns the decision not to renew his fixed-term appointment.

  Consideration 6

  Extract:

  The complainant alleges that the non-extension decision was tainted by an error of fact since it was taken on the assumption that his employment was the result of a “direct political appointment” by the former Director-General whereas, in reality, he was selected for the position of Director, ICA, by means of a competitive process following the publication of the open vacancy for said position to all African delegations.
  The Tribunal finds, on the basis of the relevant evidence provided by the Organisation, that the appointment of the complainant in 2016 was a direct political appointment.
  Contrary to the complainant’s assertion, the selection process was not preceded by the publication of a vacancy notice open to any potential candidates. The process was initiated by a letter of 9 September 2015, addressed by the then OPCW Director-General to the Permanent Representative of the Republic of South Africa to the OPCW, in which the Director-General stated that:
  – the position of the Director, ICA, which was then occupied by a staff member from South Africa, would soon become vacant;
  – he intended to appoint a suitable candidate from the African region to this position;
  – he therefore requested the Permanent Representative of the Republic of South Africa to “inform [his] regional group to seek names of suitable candidates”;
  – “[t]he candidacies [could] be submitted directly to [him] with their CVs by 15 October 2015.
  Following interviews that [he would] conduct, [he would] appoint the new Director ICA”.
  The process, as described in this letter, was not a competitive process since there was no vacancy notice open to public competition, but only one which would enable the OPCW Director-General to select directly the suitable candidate.
  Moreover, this process did not comply with either Staff Regulation 4.3, which required that selection of staff be made on a competitive basis, or Administrative Directive AD/PER/29/Rev.3, in force at the material time, whose paragraph 7 required, even for appointments to posts at the D-2 level and above, that they be based on “recruitment and selection procedures”. The Tribunal’s case law holds that the consultation with “relevant delegation and regional groups” – as made in the instant case – did not satisfy paragraph 7 of the Directive (see Judgment 4069, consideration 6).
  In conclusion, the non-extension decision was not tainted by an error of fact.

  Reference(s)

  ILOAT Judgment(s): 4069
  

  Keywords:

  appointment without competition;
  

  
  
  

• Judgment 4084

  
  127th Session, 2019
  World Intellectual Property Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to transfer her and the appointment of another staff member without a competitive recruitment process.

  Judgment keywords

  Keywords:

  appointment without competition; complaint allowed; decision quashed; transfer;
  

  
  
  

• Judgment 4069

  
  127th Session, 2019
  Organisation for the Prohibition of Chemical Weapons
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the direct appointment of Mr D. and Mr A. to two D-2 level posts.

  Judgment keywords

  Keywords:

  appointment without competition; complaint allowed; decision quashed;
  

  
  
  

• Judgment 3993

  
  126th Session, 2018
  Organisation for the Prohibition of Chemical Weapons
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the direct appointment of Mr E. to the position of Legal Adviser.

  Judgment keywords

  Keywords:

  appointment without competition; complaint allowed; decision quashed;