UNAT Held or UNDT Pronouncements
The UNAT held that the UNDT erred in finding that the referral to OIOS constituted a reviewable administrative decision.It found that, contrary to the UNDT’s finding, being subject to an investigation did not, in itself, transform the referral for investigation into an administrative decision, in the absence of additional legal consequences.It further concluded that, as the staff member’s request for parental leave was eventually granted, and he had not identified any harm resulting from the delay in granting it, the referral to OIOS did not have sufficient legal effect to constitute a reviewable administrative decision.
The UNAT granted the appeal and reversed Judgment No. UNDT/2025/066, with Judge Colgan writing a separate concurring opinion.
Decision Contested or Judgment/Order Appealed
A staff member of the United Nations Mission in South Sudan (UNMISS) contested the decision of the Administration to refer his submissions relating to the establishment of dependency and possible parental leave to the Office of Internal Oversight Services (OIOS) (contested decision).
In its Judgment No. UNDT/2025/066, the UNDT found that the staff member’s application was receivable and that the contested decision was unlawful, but it rejected his claim for damages.
Secretary-General appealed.
Legal Principle(s)
The key characteristic of an administrative decision subject to judicial review is that the decision must produce direct legal consequences affecting a staff member’s terms or conditions of appointment. What constitutes an administrative decision will depend on the nature of the decision, the legal framework under which the decision was made, and the consequences of the decision.
Where a decision requires several steps to be taken by different authorities, but only the last is directed at the staff member, the earlier decisions or actions lack direct effect, and only the last decision may be brought to the Dispute Tribunal for review. Preparatory decisions are therefore normally not reviewable by administrative tribunals.Accordingly, the initiation of an investigation (or referral for an investigation) is not typically considered to be an administrative decision. Indeed, while an investigation, which is essentially a pre-decisional process, may ultimately result in direct legal consequences, the mere initiation of an investigation generally does not have such an effect.