2024-UNAT-1434, Hawa Haydar
The Appeals Tribunal found that the paucity of positive comments, compared with the overwhelmingly negative comments rendered Ms. Haydar’s performance evaluation an “administrative decision” with a direct adverse impact on her employment. The Appeals Tribunal thus found that the UNDT did not err in finding her application receivable.
Turning to the merits of the application, the Appeals Tribunal found that by characterizing Ms. Haydar’s performance as “successfully meets performance expectations”, the Administration precluded her from contesting the appraisal through the rebuttal process. The combination of the overwhelmingly negative comments regarding Ms. Haydar with the final assessment of “successfully meets performance expectations” produced a substantively negative performance evaluation.
While the Appeals Tribunal agreed with the UNDT’s resolution of the receivability issues as well as its determination of a substantive illegality, it found that the UNDT exceeded its jurisdiction by ordering that Ms. Haydar be heard by an “independent, impartial and objective panel”. The Appeals Tribunal affirmed the remedy ordered with respect to the rescission of the performance appraisal, but ordered that the Administration revise that evaluation, including the ultimate conclusion as to Ms. Haydar’s performance, or underlying comments regarding that conclusion, or both.
The Appeals Tribunal granted the Secretary-General’s appeal in part and reversed Judgment No. UNDT/2023/022 as to remedy only.
Ms. Haydar, at the time a P-3 Supply Officer with MINUSCA, challenged before the UNDT the decision of her Reporting Officers to prepare her 2020-2021 performance appraisal offline rather than via the electronic performance appraisal system (ePAS) in Inspira, and to include negative comments and elements into her appraisal while rating her “successfully meets performance expectations”.
In Judgment No. UNDT/2023/022, the UNDT granted the application in part holding that it was receivable insofar as it related to the negative comments in Ms. Haydar’s appraisal. The UNDT rescinded the filing of Ms. Haydar’s 2020-2021 performance appraisal to allow the Administration to give her an opportunity to be heard on the negative comments before an independent, impartial and objective panel to ensure that the performance rating of successfully meets expectations is consistent with the comments.
The Secretary-General filed an appeal.
A staff member wishing to contest an administrative decision must first make a timely request for a management evaluation of the administrative decision. A claim which has not first been raised in a request for management evaluation is not receivable ratione materiae.
The Tribunals’ determination of whether an action is an “administrative decision” does not turn on the label applied by the Organization. The analysis turns on whether an action has the capacity to produce direct legal consequences. Accordingly, the Tribunals must examine the underlying circumstances and context of the challenged action.
With particular regard to a facially positive performance evaluation, the Tribunals examine whether the reasoning or narrative comments so detract from the overall favourable conclusion that they can be said to have a direct adverse impact on the terms and conditions of the staff member’s employment rendering a performance appraisal an appealable “administrative decision”.
The Appeals Tribunal may award costs against a party, who in an extreme case, has manifestly abused the appeals process.
The Secretary-General’s appeal is dismissed, except with respect to the remedy which is modified. Judgment No. UNDT/2023/022 is affirmed with respect to the rescission of the contested decision and modified as to the remedy.