grnur\~opsg@

rnD Staff Counci

Secretariat

8 June 2006

Dear Mr. Dervis

We the UNDPIUNFPAIUNOPS Staff Council appro&h you as head of the United Nations
Development Programme who has been entrusted by the Secretary General with the
implementation and compliance with the UN Staff Regulations and Rules. In our opinion, the
United Nations Development Programme, to a lesser extent the United Nations Population Fund
and the United Nations Office for Project Services, have significantly departed from the legal
framework as promulgated by the Secretary General and fbrther elaborated through
jurisprudence of the United Nations Administrative Tribunal. Our particular concern rests with
the impleinentation of staff rule 109.1 c) i.e. the practice of "displacing" staff. In this context, at
the request of our constit~ients(Field and Heaclqua~tcrs),we have coinmissioned one of the pre-
eminent lawyers in UN adniinistrative law to review the compatibility of the corresponding
UNDP procedures (due process guidelines), or best practice as it is commonly referred within
UNDP, with thc jurisprudence of the United Nations Tribunal.

As you can see from the attached brief, the practice of floating ("displacing") staff or providing
non-specific liens during absences, essentially places them at an immediate disadvantage vis-h-
vis their colleagues regardless of contractual status and the right for a classified job in
accordance with replation 2.1 is violated. This disadvantage is compounded by the absence of
a review board ensuring that due rights of "displaced" staff are respected. The practice of
"displacing" staff (job fairs) has de jizcfo become a managerial tool for replacing existing staff
with new staff. Thc Tribunal has consistently interpreted the Staff Regulations and Rules as
prohibiting the manipulative use of mailagerial discretion over administrative matters for thc
purpose of elimination staff. The concept of re-profiling was originally intended to mitigate
~tnntzticipaterlexternal (exogenous) changes. In the absence of an organization wide strategy for
change or external developments warranting such a change, this extra-ordinary tool has become
the prerogativc of managers to re-profile organizational units to their personal preference.

304 E. 45Ih SI.. Room 812. New York. NY 10017, USA Tei: (212) 906-5097 Fax (212) 906-6987 reciistrv.sIaff-
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Secretariat

Mr. Dervis, the current practice of displacing staff is not in conformity with the staff rules nor is
it in the interest of the United Nations system. Continued litigation is costly in tenns of financial
resources and detrimental to the staff morale. We have raised this issue at all levels within
UNDP. Since we have not been given any indication that our concerns have been taken
seriously, our constituents have requested us to urgently meet with you on this matter.

Chair,
UNDP/UNFPA/UNOPS
33"' Staff Council

Mr. Icema1 Dervis

Administrator
UNDP

Cc: ICofi Annan - UN Secretary General

Thoraya Obaid - UNFPA, Exccutive Director
Gilberto Flores - UNOPS, Executive Director a.i.
Christopher Burnham - UNlDepartment of Management, Under Secretary General
Alicia Barcena - UN Chef de Cabinet
Ad Mellcert - UNDP, Associate Administrator
Jan Mattsson - UNDPIBureau of Management, Assistant Administrator and Director

304 E. 45'"t.. Room 812. New York. NY 10017. USA Tel: (212) 906-5097 Fax (212) 906-6987 reqistw.staff-
council~undp.orq
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C X L L U L . ~ ? ,soat s.i3.3540 'r0c.t. FTLEE: L . ~ U O . ~ I B . ~ ~ O U

3 1 Miiy 2006
hLr. Dimitri Samaras
Chairman, W D P I U N F P N U N O P S Staff Council
304 East 45'St.
Room FI: 810
New York, N Y 10017

Re Comments on Due Process Guidelines for Displaced StaFfiLlembers

Dear iLLr Samaras,

Iam forwarding herewith a legal opinion prepared at the request o f the Stat?
Council. I hope this opinion will assist you in your disci~ssions.

Ln addition I have a few specific comments on the guidelines

The starting point for disci~ssingthe due process rights o f displaced staff i s in
examining how they are displaced. Budgetary posts are established and abolished in
principle by legislative organs on the basis o f a prograrnme budget. However, given the
nature o f funding i t has become more and more common tbr the administration to
allocate resources unilaterally. This involves, irrrrr crlicr, the elimination o f permanent
posts in favor o f ~ i s i n gtincis for short term hiring, The increased use o f j o b fairs to
declare posts vacant and replace existing staff with new candidates also results in more
clisplacecl staff There i s little or no review o f these processes and no due process For
those aRected.

The due process ~uidelinesas proposed apply onLy to LOO series staff. I t is not
clear why 200 ancl even 300 series statTmembers have been L~~mped together with non-
staff members on SSA's or Service Contracts. I t i s also not clear what meusures are
intended for UNFPA and UNOPS statT. While there may be differences in treatment
between 100 series staff and others, serving staff o f all categolies and in all agencies
should be afforded due process and giver] consideratioil for reassignment.

A litec-a1 [reading o f StaffRule 109. I ( c) implies that statTon tixed term or short
terrn appointments should be replacecl by those ~ v i t hpermanent appointments in the event
that staff must be recl~iced.A q~hestiontherefore arises as to the meaning o f "vacancy".
A post filed by a short term contract holder should be considered vacant at the moment
the contract expires, requiring a competitive selectiorl procedure in which the rules o f
preference apply.
 Regarding the search period, 1 see no reason why the search period need be
limiteil to three months, given the limited opportunities for reassignment that this
represents. It seems s in duly short for a good hith etfort to place statfand seems only to
serve as an advance notice of termination. The implications are clear.
Given the fact that proposals for redeploying staff are made well in advance, there is no
reason to wait to provide notice to those affected. I am attaching a copy of an excerpt
From the UNtCEF Human Resources i\ilaniial developed several years ago (I don't know
if it has since been amended) to give an idea of better alternatives.

The same principle holds true for notice to fixed term staffwith less than five
years of service. The one month notice of non-renewal is a minimum and should not
prevent a longer notice period ifpossible where there is a reorganization, job fair, etc.

One of the most critical elements of due process involves the interpretation OF the
term "preference" as it applies to competition for posts. The eFfort to reassign staff
reqiiires a written record of placement efforts including a demonstration OF what
preference was given to displaced staff in considering them €or vacancies. A written
jiistificatiori s h o ~ ~ be
l d provided for rejectins any preferred candidacy in favor of another
candidate who does not have preference. The written records sho~ildbe made available
to staFfupon request. They should also be provided to ajoint body set up to review
selections before they are tinal in order to jiistify the rejection of a preferred candidate
and to ensure that preferrecl candidates are considerecl for ail available vacancies, rinother
option is to corisider displaced statfa~itomaticallyfor any post within their occupational
group before it is p ~ i up t For circ~ilationas a vacancy (this approach was iised in the UN).

In the event stat'fare reassigned, they have a right to keep the protections oftheir
contractual status regardless of the nature of the post they encumber. This includes the
right to a properly classif~edjob in accordance with S t a r Reg~liation2 . 1

[ h e provisions in Section L[I governing secondment are ind duly restrictive and
7 .

nlay be in conflict with the Inter-Organizational Agreement on transfer, secondment and

loan of s t a K The restrictions placed on the use oFliens will disco~iragemobility and
inhibit career developtnent ant1 sho~lldbe re-thought. ..

Plcasz also n u t t that tile instructions do not mention the important issue of visa
status For those C-4 visa holders who opt t'or one of the alternatives provided. It should be
made clear to thern i n advarice that this confers no right to remain in the host country.

Sincerely yours,
 LEGAL OPLNlON

Submitted to tile UINDOIUNFP,-VUNOPS StnlTCouncil

iC.lay, 2006

Law OlKces of George G. I~vilrg

 The issue presented and disciissed hereafter concerns the rights of staff members who are

atrected by reorganizations and restructilring, primarily through the abolition of enc~lmbered

posts. T h e essential question posed is what legal protections and guarantees ofjob seciirity are

offered career international civil servants iri the event oFbudgetary or programmatic changes

within the Organization aEFecting the posts they occupy.

While both the UN and [LO Administrative Tribunals have a well established bocly of

jurisprudence recognizing the rights of permanent and long serving staFf to protection of their job

security in the event O F retrenchment, the enforcement of these principles has proven increasingly

dificult as it has become easier to circumvent the original intent behind the staff reg~llationsand

niles. Furthermore, the appeals machinery and tribunal procedures can only deal with individual

cases rather than policy matters. Therefore the critical questions O F good faith and fair dealing

that are inherent in the regulations and rules are left €or matters of individual interpretation in a

case by case analysis

Nevertheless, there are a number of legal precedents o f a binding nature that apply in such

cases. Although what is provided hereafter reflects a general body O F applicable law, it should be
,

noted that without an impartial mechanism to review the decisions that are taken, legal principles

can easily be circumvented. Specitically, posts are not always abolished; they [nay be redesigned
and advertised as new vacancies without any safeguards for the incumbents. Whereas posts are

technically established and abolished by the legislative organ, this has become increasing a

h n c t i o n o f management w i i h little o r no oversight. Similarly, the practice o f floating staff o r

providing non-specific Liens during absences, essentially places them at an immediate disadvantage

vis-a-vis their colleagues, regardless o f contractual status. Thus the starting point for discussion

s h o ~ ~ not
l d be what happens to displaced staffmembers b ~ rather
~ t what are the modalities

whereby statTbecome displaced. Most importantly, the notion of"preferenceU in the filling o f

vacancies i s meaningless unless i t is clearly defined, documented and subject to review In the past.

specitic redeployment proced~treswere put into place which provided for a comparative analysis

o f those atfected by displacement and ensured that the due process rights o f displaced staffwere

respected. I t i s not clear whether those procedures continue to be applicable or not. I t i s

therefore strongly urged that priority be given to settiny u p a joint review body that can hear and

consider claims, review cases prior to termination and oversee the tilling a vacancies.

TI. T h e S t ; ~ H ' a t ~liegul:~tiorls

d and liules

Article 1X o f ihe Staff Regulations governs separation k o m service. Regulatiori 9.[(a)

provides the Secretary-General with broad discretion in terminating the appointment ot'staR

~nernberswith permanent appointments, due, itrler trlitr, to the necessities o f the service recli~iring

aboliiiorl o f post or reduction o f statY. ~insatisi'actoryperformance 01. reasons o f health

 Regulation 9. 1(b) providzs the same with regard to statf on b e d term appointments

Regulation 9 I( c ) provides ibr termination of appointment for all other staff, including those on

probationary contracts, i F s ~ ~ caction

h w o ~ ~ lbe
c l in the best interest of the United Nations.

In furtherance of these Regulations, which ~intilnow have never been modified or

cancelled by the General Assembly, Staff Rule 109 1( c ) goes on to describe the order of

preference to be applied in cases where the necessities of service require the abolition of post o r

reduction in staff, Lt provides that staff on permanent appointments will be retained in preference

to those on all other types of appointment and those on probationary appointments will be

retained in prekrence to those on fixed term, subject to the availability of suitable posts. It

provides fi~rther that due regard shall be had in all cases to relative competence, to integrity and to

length of service:

"Except as othenvise expressly provided in paragraph (b) below, if the necessities ot'the
service require abolition o f a post or reduction of the statf, and s~tbjectto the availability
of s ~ ~ i t a bposts
l e in which their services can be etfectively utitized, statfmembers with
permanent or regular appointments shall be retained in preFerence to those on all other
types of appointments, and staEFmembers with probationary appointments shall be
retained in pre&rence to those on fixed term or indefinite appointments, provided that due
regard shall be had in all cases to relative competence, to integity and to length of service.
Due regard shall also be had to nationality in the c a s e o f statfmembers with not more
than five years of service and in the case of statfmembers who have changed their
nationality within the preczding five years when the suitable posts available are silbject to
the principle of geograpl~icaldistribution."

Stal'iRuie 109. I ( c ) is at the heart o f t h e protections afforded to stifiwith permanent

appointments and those on fixed term appointments with long service to the Organization, i.e.

c~rrrentlydefined as five years or more of continiling satisfactory sewice. Literally, this provision
requires that contractual status and seniority take preference over other considerations in

allocating Limited resources. In the explicit words of the Tribunal, "According to staff rule 109.1

(c), staffon permanent appointments must be retained in preference to statfon fixed term

appointments." (Judgement N o . 1072, Chuteaux (2002) This rule has been consistently

interpreted to mean that, at a minimum, a good Faith effort must be made to tincl alternative posts

for those long serving staRwhose posts are abolished or whose programmes are curtailed. Such

a review is not limited by the rules to a particular office, department or duty station, nor by a

parlicular time kame. Furthermore, once the administration's efforts to comply with these

requirements are seriously called into question, it is incumbent on the administration to

demonstrate that those rerl~~irements

have been met. (Judgement 910, (1998) para. [V,

citing Judgement No. 447, Xbbas (1989))

TLI. Liriiits on Discretiooiily Authority

The discretionary authority of the Secretary-General to terminate appointinents is far korn

absolute. This concli~sionhas been underlined numerous times in the jurisprudence of the United

Nations Administrative Tribunal. tn one of its earliest clecisions, the Tribilnal stipuiatecl that the

Secretary-General's discretionary a ~ ~ t h o r i to
t y terminate statTmembers "is limited by the Charter,

the resolutions of the General Assembly, by StofYReg~~lations

anc! by StatYRules, and by other

instnlments defining the rights and obligations o f members of the Secretariat" (Judgement N o s :

I-Iowrani. ( I95 !), para. !). That same opinion went on to set out clearly what the rights of both

temporary and permanent staRin such circurnstailces are:

 "That in the case of termination of employees with service ratings of"satisfactory" o r
better, there is a presumptive right to consideration For posts elsewhere in the Secretariat
for which their qualifications are appropriate, and that an essential of due process is either
an aFfirnative showing that reasonable efforts were made to place silch employees in other
posts, or a statement ofreason why this was not done. (Ibid., para.6)

The organization's burden of proof includes an atfirnative showing that the staff member

was considered For available posts and was not found suitable tbr any of them prior to termination

(J~idgementNo, 85: CCI,:\-on (1 962) para. 8)

Another early decision of the Tribunal specitied that the a ~ ~ t h o r i of

t y the Secretary-General

tinder StatT[iegulation 9. I is not absolute:

"LVkile the measure of power here was intended to be lei3 completely within the discretion
of the Secretary-General, this wo~ildnot authorize an arbitrary or capricious exercise of
the power of termination, nor the assignment of specious or ~ i n t r u t h h lreasons For the
action taken, such as would connote a lack of good Faith or clue consideration For the
rights of the statfmember involved." (Judgemer~tN o , 54: i\/laitch, 1954, para.5)

The intn~sioclof financial constraints associated with reorganization or retrenchment cloes

not absolve the Administrat1011 o f i t r contractual obligations towards serving statt:

"While the Tribunal does not underestimate the importance of these [financial]
considerations, it is concerned that the need For economy' may come in the way of
protections that should normally be available in it timely fashion to staFFmembers, as
provided in the StatTKegulations and Rules. For, in some cases this can be tantamount to
deprivation of rights." [Judgement N o . 462: Cvfurohy, para.VI]

Furthemlore, the discretionary authority to reassign, redeploy, and terminate statrmay not

simply be justified as programmatic decisions if they are improperly motivated. While subjective

intent may be clitticuit to prove, it may he demonstrated by a pattern of conduct culminating the

6
use of redeployment as an excuse to get rid of the staff member ( Judgement N o 1069,

Madushahi (2002)

TV. Procedur:il d u e process

The Tribunal has noted that redeployment procedures must not be used as a pretext for

termination and has objected specifically to the use ofabolition of post to target an individual staff

member:

"The only post abolished in the retleployment exercise was one o c c ~ ~ p i ebyd a s t a E
member on a permanent appointment, which means that the Applicant was terminated
under the pretest of redeployment, without having been considered on a preferential basis,
as he should have been in the event of the abolition of his post, in accordance with staR
rule 109.1 (c) ." Judgement No. 1072, Chuteaux (2002) XI)

[n acldition to qilestionir~gtlie motive behind discretionary decisions, the Tribunal has

~ r m e the
d need to respect procedural safe~vardsin implementing decisions. The Trib~inalhas

held that prejudice can be adduced from a failure to follow procedural requirements (Judgement

No, 521: &t& (1991). The KO hdrninistrative Tribunal has f o ~ ~ nthat

d "proof of prejudice is

rendered unnecessary when procedural requirements have not been observed." (Jt~dgement

No.495: Olivares Silv;~(1982), para. 16) The LLO Triburial.specificiilly applied this principle

regartling respect for procedilral due process to a case involving non-renewal of contract due to

abolition of post in Judgement No. 1\91: In re de A r ~ d a(1992) and concluded that the failure to

rnakea genuine effort to carry O L I the

~ procedures for reassignment of staffi'varranted

reinstatement of the separated statt'member, proper compliance with the procedures and payment

of compensation for inoral damages on the grounds that,

 "Where a post is abolished compliance with the reduction-in-force procedure is a
condition prececlent to termination o f tile holder's appointment." [para. 121
T h e procedural req~lirementsassociated with the irriplementation o f Rule 109. I(c) have

been interpreted b y the Tribunal as necessitating that a good faith e b r t be undertaken to find

s ~ ~ i t a balternative
le posts for serving staff in the event o f a retrenchment o r abolition o f post. (c.F.

J~ldgementsN o 501 (1990) and N o 459 hloore-Vloodroffe ((1989)) The exact

requirements and definition o f a good faith effort have been applied o n a case by case basis, taking

into account such factors as type and length o f contract, availability o f posts, past performance

and evidence o f placement efforts i t clearly requires more than aproforrrr~rexercise and implies

a serious et-fort at identiQing alternative assignments over an extended periocl oFtime. The

for a bona ficle etyort at

precise g~liclelinesto be followed i n meeting tile recl~~iremerits

reassignment were set forth i n a memorandum o f law to the Chief o f Stat-f Services, OPS, dated

14 December L979:

"The propr-iety o f t h e Adrrinistration terminating the appointment o f a stat-frnember who

holds a permanent appointment is dependant upon strictly iblloiving the procedilre set out
in staiT rule 109, I (c). The United Nations Administrative 'Tribunal has consistently held
that the validity o f a ternunation under this provision depends o n clearly demonstrating
that the stat-fmeniber concerned c o ~ i l dndt be retained in accordance with staffnlle 109.1
l held that the Administration must demonstrate that the staffmemb'er
(c). The T r i b ~ l n ahas
concerned was in fact fc~irlycrml objectively considered for available posts and ivas fnirly
crncl objectively not found suitable for any o f them. T i l e Tribunal has pointzd out that this
burden is not discharged by a sin~pleassertion that the statfrnernber rvas not suitable, but
this fact must be clearly demonstrated and proved e.g, by a contemporaneous
mernoruntlum wlxich sets out the cletails o f the qilalitication recl~iiredfor all available posts
and explilins i n each case why the particular staff member to be termiiiated i s not s~litable
for each o f those posts." [UIV.Jrrritliccrl Yecrrbook, 1979. p. 1891

T h e T r i b ~ ~ nhas
a l tleld, "the bur-den o f p r o o f o f having given consideratiori i s on the

Respondent whenever a staff member c~~~estiorls

that such consicleration was given. Secontlly.
Such consideration must to some measurable degree meet the criterion o f "fullest regard' in a

reasonable manner. And linally, there must be good faith and consciousness o f all the

circ~imstancessurro~indingany claim." (Judgement 447: &(1989) VII) The Tribiirial has

noted that the efforts to place a dislocated staff member must be undertaken in good faith "in view

o f all the circ~~mstances

presented" which include proximity to retirement, family considerations,

health and availability o f o t h e r suitable assignments." (Judgment No. 943: Y ~ m g(1999) iX)

Assignments that are temporary, probationary or involve indue hardship w i l l not satis@ the rules.

The legal requirements o f staffnile 109. I (c) have beer1 stipulated by the Tribunal as follows:

"This rule i s interpreted to mean that a good faith ertbrt must be made by the Organization
to find alteniative posts for permanent staff members whose posts are abolished. The
'Respondent must show that the staff member was considered for available posts and was
not found silitable for any o f them prior to termination (cf Judgement N o . 85: Carson
(1962)). The Trih~cnaihas held in the past that where there is a doubt that a staff member
has been afforded reasonable consideration, i t is inc~imbenton the iidministration to prove
that such consideration was given ( c f Judgement N o , 447, i\i-rbas (l989)."
(Judgement N o . 910 Soares (1998) I1T)

i n applyiriy this principle, the Tribunal required the administration to produce evidence that it

exercised " d ~ i ediligence and necessary good faith eRortsU to place the statt'mernber in a suitable

positiocl prior to termination. (Judgement No. I 17-8, Bane~jee(2003) This implies more than a p r o

jorrnrr search period o f limited duration diiring which tlie statt'mernber is allowed ro present himseli

as it canclidate for ine encumbered posts. i t implies, as set forth specifically in tlie Barieqee case>that

the Adnlinistration makes sure "there i s no other staff member with less seniority o r ~vithoiit

permanent contract or with less disting~iishedservice to the United Nations" ivho can be clisplaced,

that the statt'mernber h i ~ spriority over external conipetitors artd there be more than a perfunctory

ackno~vledyemento f applications to posts. (lbid.)

 In Judyement No 679 (1994) the Tnbunal ordered reinstatement on the grounds

that the etTorts to place a permanent coiltract holder who had been terminated for abolition of

post were tainted by irregularities and prej~~dice

arising from a dispute over her previous

performance evaluation, which had not been resolved. It further found that a search Fol

alternative posts over a period of nearly a year, involving numerous reviews for vacancies by the

appointment and promotion bodies, shoi~ldnot be considered exceptional It noted further that,

' T h e Tribunal has referred repeatedly to the application O F this provision, which is vital to
the security o f s t a f f ~ v h q having
, acquired permanent status, must be presumed to meet the
Organization's requirements regarding q~~alifications. in this connection, while ettbrts to
find alternative employment cannot be unduly prolonged and the person concerned is
required to cooperate hlly in these efforts, stdTrule 109.1 ( c ) requires that such efforts
be conducted in good faith and with a view to avoiding, to the greatest extent possible, a
situation in which the statTmember who has made a career within the Organization tbr a
s~~bstantial period of his or her professional life is disnlissed and forced to ~lndergobelated
and uncertain professional relocation." [para. XCCT]

One o f t h e critical elements in ensuring that a staff member is accorded fair consideration

for other assigrunents is ilp-to-date performance evaluations. judgement No, 501: (1990)

is indicative of this concern. ..\lthough the Trib~inalfound that follo~vingthe abolition of his post,

efforts were made to find a suitable alternative post, those efforts were compromised by the lack

of ciirrent ktncl accurate performance evaluation reports which constituted a denial of due process

V Fixed term appointments

clear preference over others for being retained in service, the obligation to atTorcl due diligence to

10
those on fixed term appointments who are displaced i s no less clear, particularly those who have .

five years or more o f continuing service I n fact, the Tribunal has in certain cases afforded these

staff members a heightened scn~tinyin view o f the Fact that they are rpso fnclo in a more

precarious situation. In particular, a reorganization or redeployment cannot be used simply to

disgilise a non-renewal ofcontract based on other considerations. I n J~ldgementN o . 466:

iL.Lonteiro-Aiavon (1989) involving the non-renewal o f a 6xed term appointment on the grounds

o f abolition o f post, the Tribunal held,

"The fact that fixed term appointments - even for a staffmember who held such
appointments tbr a long time - do not ordinarily carry any legal expectation o f extension,
did not justify, in the opinion o f the Tribunal, the termination o f the Applicant's
ernployment in the way i t was clone in this case...the Tribunal is leR with the impression
that the decision was already taken to get rid o f the Applicant and reasons for doing so
were found later" [paras. V-VIT].

Whether a staff member on a l i ~ e d

term appointment has a legal expectancy o f Further

employment is a cluestion o f h c t which the Tribunal will adduce from the totality o f circumstances

surroilnding the contract. Such an expectancy may be inferred From the circ~~mstances

surroundirig the staff member-'s employment and may create an obligatior~on the part OF the

Admirustration to provide continuing en~ployment(Judgement No, 142: Bhattachawva (1971,

paras. XI and X). Likewise, in accordarice with StaAReg~llation4.4, the Organization i s no less

obligated to ~lndertakea good faith etl'ort to find alternative assignments, in particular taking into

account the statl'rnernber's senior-ity vis-a-vis staff member-s with fewer- years ofse'rvice (m.,
para. XI).

The special consideration afforcled to those staff members serving on tixecl term

II
a.ppointments for five years or longer has been formally recognized. T h e General Assembly

addressed this issue directly when i t adopted Kesolution 371126 which provided, "staff members

on tixed term appointments upon completion of five years of continiiing good service shall be

given every reasonable consideration for a career appointment" [para. 5, Section IV]. The

follo~vingyear the General Assembly in its resolution 38/23? recommended, "that the

organizations normally dispense with the requirement For a probationary appoinrment as a

prereq~~isite
for a career appointment following a period of five years' satisfactory service on Eixed

term contracts". [para.S, Section VI].

The Tribunal applied these directives in its Judgement No. 482: @iu.Zhou and Yao (1990)

recosnizing a pres~~mptive
right of those statt'on fixed temi appointments for five years or longer

and with satisfactory service to a reasonable expectation ofcontinued service and conversion to

career appointments.

Following the issuance of Judgment No. 482, it has been the recognized practice to accord

staff with five years of contin~ioussatishctory service on fi.xed term appointments the same

reasonable consideration for reassignment as those on probationary or permanent contracts.

'The Report of the Secreta~y-Generalto the General r\ss~mblyon Human Resources ILLanagenent

[A/C.5/5 1/34 o f 2 2 Noverrlber 19961: has cogently explainetl the legal principles involved in

expectatiolls of corltin~~ed
employmerit of fixed term statf

"While reattirming that the fixed term appointment, by its terms, does not create an
expectancy o f renewal, the Tribunal examines all the s ~ i n o u n d i n gcircumstances to
cletermine whether an expectancy of renewal was created in the particular case - for
 example through a verbal or written commitment, albeit informal, made to the staff
member by the programme manager that the appointment woiild be renewed. In addition,
staff members who have served on fixecl term appointments for an extended period
(iisually five years or more) are recognized by the T r i b ~ ~ nas
a l liaving the right to receive
every reasonable consideration for hrther employment. Even though tiis does not
amount to a le$al expectancy of continued employment, which would be contrary to the
specific terms of a fixed term appointment, a finding that the Organization failed to give
every reasonable consideration €01-Further employment will result in the award of damages
that may be substantial. Finally, even in those cases where the decision not to renew was
purely discretionary, the Trib~inalalways gives carehl attention to the issiie of whether the
decision was affectecl by lack of due process, mistake of t k t , prejudice or other
extraneous motives. in s i ~ c hcilses, the Tribunal ~voillcinormally award damages to the
statTniember whose appointment was allowed to expire, on the ground that it is an implied
coriditiori of employment that all decisions, inclucling a decision not to renew an
appointment, are taken fairly and in the interests of the Organization."

VI. Conclusion

The consistent jiirispruclence of the Tribunal over many years has resulted in a body of law

that recognizes the importance of long term arid career staR by virtue of their demonstrable

contributioils to the Organization. This in turn has given rise to recognition of rights and

protectioris of those international civil servants who have macle a coinmitment to the work of the

Organization, which s~~persecles

the immediate managerial and financial decisions of the moment.

T h e Staff Regulations and Rules have been consistently interpreted as prohibiting the

maiiipulative L I S of
~ nianageriai discretion over aclmiriistrative matters €01.the purpose of

eliminating staly, Unless aricl until the Ger~eralAssembly amends its reyiilations to change the

concept of permanent appointment, these pririciples contirliie to apply.