International organizations exercise authority over staff members by making what are known as “administrative decisions”. This article helps you better understand what an administrative decision is and how to identify administrative decisions that can be challenged through an administrative review or judicial process. It also answers some frequently asked questions about administrative decisions in the workplace of the United Nations and specialized agencies.
Nothing in this article is legal advice. When in doubt review the relevant rules of your international organization, as rules vary, and seek legal advice.
What is an Administrative Decision?
The United Nations Appeals Tribunal has defined an administrative decision as a unilateral decision taken by the administration in an individual case which produces direct legal consequences.
Defined more simply, the International Labour Organization Administrative Tribunal (ILOAT) has stated that an administrative decision is any act by an officer of an organization that has a legal effect. By legal effect, this means there is a direct impact on you as an employee of an international organization (impact on your contract or the conditions of your employment).
An administrative decision may take any form, including being communicated orally. Even if the decision is not in writing, a Tribunal can infer from the facts that an administrative decision was taken.
A key component of an administrative decision is finality. Staff members normally can only legally challenge decisions that are final. The ILOAT Statute states that a complaint by an aggrieved person will not be examined unless the decision is final and the person concerned has exhausted any other means of redress available under the organization’s Staff Regulations. (ILOAT Statute, Article VII)
When do I need to challenge an administrative decision?
Final decisions must be challenged within applicable timelines set by your organization. Timelines vary from organization to organization, so you should review your organization’s staff regulations and relevant administrative procedures on challenges to administrative decisions.
After being informed of a final decision, staff members may sometimes engage in lengthy discussions with the administration to better understand the reasons for the decision or to request that a decision be reconsidered.
In doing so, staff members need to be aware that once a decision is final, subsequent discussions with the decision-maker will not usually lead to an extension of timelines to make an appeal.
An exception to this general rule is when the organization takes a new decision that supersedes the first decision. A second exception is if the organization has the authority to waive timelines and expressly agrees to do so due to subsequent discussions with the staff member.
How do I distinguish between a new decision and a decision that only confirms a previous decision?
Sometimes subsequent discussions with the administration will result in a new decision superseding a previous decision. According to ILOAT case law, a new decision must
- change the previous decision and not be identical to it,
- provide new justification and relate to different issues than the previous decision, or
- be based on new grounds.
In short, a new decision cannot simply confirm a previous decision. If the new decision merely confirms, the staff member usually must challenge the first decision within applicable timelines. Similarly, if the administration simply replies to a staff member’s request to reconsider a final decision by restating its first decision while providing its original reasons, this also will not give rise to new time limits.
Is an organization required to give reasons for administrative decisions?
The case law of the ILOAT requires every administrative decision affecting a staff member to be supported by reasons. This is because a staff member must be able to know and decide whether to challenge the decision. Therefore, you should feel confident to ask your organization to give reasons for administrative decisions that it takes against you, so that you can better understand whether to exercise your right to appeal.
Although organizations are required to provide reasons for their decisions, they will not always explain these reasons in great detail. Administrative tribunals have decided that this can be remedied at the appeal stage, so long as the staff member is given a chance to provide observations on the reasons provided.
If an organization changes its rules, can I challenge this?
When an organization changes its rules, many staff members may be impacted. However, staff members cannot challenge an organization’s rule changes unless and until it is applied to them in a way that causes an adverse impact. For example, if your organization’s executive head proposes a new staffing plan for consultation to staff and approval by the organization’s governing body, a challenge to the proposal of a new staffing plan would be premature. This means that a review body or Tribunal could dismiss the case for a failure to challenge a final administrative decision. The appropriate time to challenge would be once the plan is final and is implemented in the organization.
What is a retroactive decision? Are they legal?
Amendments and changes to the rules of service cannot have an adverse retroactive effect on a staff member. This means that the organization cannot backdate a rule that negatively impacts your rights. An organization can however take retroactive decisions that positively impact an employee.
A rule is considered retroactive if it effects some change in your status, rights, obligations or interests retrospectively. However, if the new rule only affects the procedure to be followed in the future concerning these matters, it ordinarily is not considered as retroactive. This means that amendments and rule changes can negatively impact a staff member’s future benefits. Such cases can involve an analysis of whether a condition of employment is an acquired right. To determine whether an acquired right has been impacted, tribunals generally consider whether the right is a fundamental or essential condition of employment. Fundamental or essential conditions of employment are not open to any change without the consent of the staff member impacted.
Can I challenge my organization’s payslip?
Administrative tribunals have held that payslips are administrative decisions that can be legally challenged. The time limits to make an appeal generally begin to run after the receipt of the payslip. This means that when an organization announces a plan to modify an element of a staff member’s pay, it can be challenged once a staff member is directly impacted through a change of pay.
If I believe the organization is biased against me, how do I challenge this?
Staff members cannot directly challenge an organization’s bias against them, but they can challenge individual administrative decisions that were motivated by bias. In one ILOAT tribunal case, a staff member alleged “perpetual administrative bias” by the organization. The tribunal concluded that this allegation could not be directly challenged, but the improper conduct was used to support an inference that the administrative decision was motivated by bias.
In such situations a staff member should focus on individual administrative decisions that are motivated by bias. When challenging such decisions, it is important to note that the staff member must prove any allegation of bias. Administrative tribunals have recognized that bias is often concealed and that direct evidence to support allegations of bias may not be available. Therefore, proof of bias may need to be inferred from the situation. A staff member can prove bias only with known facts and not with suspicions or unsupported allegations.
As a concrete example, when staff members believe that their posts were improperly abolished due to bias, they should challenge the decision notifying them that their post has been abolished. In their appeal, they should provide evidence of conduct that shows that the decision was motivated by bias.
When in doubt, ask for help!
If you believe that you have been negatively impacted by an administrative decision, ask for help!
Even though the rules of your organization are complex, international administrative tribunals have consistently stated that international civil servants are expected to understand and know them. In particular, this means that tribunals expect you to understand the procedure to challenge administrative decisions, including the timelines for doing so.
For this reason, Staff Lawyer recommends that you review carefully the rules of your organization and any rule changes. It is also wise for all staff members and consultants of international organizations to take out legal expenses insurance that covers employment law matters in your international organization. These policies are affordable and some are offered with no deductible and no minimum disputed sum.
If you need assistance, please contact Staff Lawyer.