Chapter V. Decisions of Administrative Tribunals of the United Nations and related intergovernmental organizations

DECISIONS OF THE ADMINISTRATIVE TRIBUNALS OF THE UNITED NATIONS AND RELATED INTERGOVERNMENTAL ORGANIZATIONS1

1. United Nations Dispute Tribunal

   By resolution 66/237 of 24 December 2011, entitled “Administration of justice at the United Nations”, the General Assembly took note of the report of the Advisory Committee on Administrative and Budgetary Questions, decided to extend the mandate for the three ad litem judges of the Dispute Tribunal for one year, subject to review and possible extension for a further year.

   In 2011, the United Nations Dispute Tribunal in New York, Geneva and Nairobi issued a total of 219 judgments. Summaries of 13 selected judgments are reproduced below.

   1. Judgment No. UNDT/2011/005 (10 January 2011): Comerford-Verzuu v. Secretary-General of the United Nations2

      Admissibility ratione materiae and ratione temporis—Tribunal has a duty to raise on its own motion issues relating to jurisdiction and admissibility—Decision of the Office of Internal Oversight Services refusing to carry out an investigation is an administrative decision appealable to the Tribunal—Right of Staff member to access to justice—Confirmative decision—Renewed request does not constitute a new administrative decision for the purposes of calculating time limits

      On 30 November 2007, the Applicant filed an appeal with the former United Nations Administrative Tribunal against the decision of the Office of Internal Oversight Services (“OIOS”) not to open an investigation following her complaint against the Administra-1 In view of the large number of judgments which were rendered in 2011 by the administrative tribunals of the United Nations and related intergovernmental organizations, only those judgments which address significant issues of United Nations administrative law or are otherwise of general interest have been summarized in the present edition of the Yearbook. For the full text of the complete series of judgments rendered by the tribunals, namely, Judgments Nos. UNDT/2011/001 to UNDT/2011/219 of the United Nations Dispute Tribunal, Judgments Nos. 2011-UNAT-101 to 2011-UNAT-188 of the United Nations Appeals Tribunal, Judgments Nos. 2954 to 3050 of the Administrative Tribunal of the International Labour Organization, Decisions Nos. 447 to 460 of the World Bank Administrative Tribunal, and Judgment Nos. 2011–1 to 2011–2 of the International Monetary Fund Administrative Tribunal, see, respectively, documents UNDT/2011/001 to UNDT/2011/219; 2011-UNAT-101 to 2011-UNAT-188; Judgments of the Administrative Tribunal of the International Labour Organization: 110th and 111th Sessions; World Bank Administrative Tribunal Reports, 2011; and International Monetary Fund Administrative Tribunal Reports, Judgment No. 2011–1 to 2011–2.

      2 Judge Jean-François Cousin (Geneva).

      428 UNITED NATIONS JURIDICAL YEARBOOK 2011

      tor of the United Nations Development Programme (“UNDP”) and the Director, Office of Legal and Procurement Support, UNDP, in relation to the death of her husband in the Democratic Republic of the Congo, while on mission as a UNDP staff member. On 11 July 2007, the Joint Appeals Board (“JAB”) had issued a report in which, while declaring the appeal admissible ratione temporis and ratione materiae, it made no recommendation in favour of the Applicant. As the case could not be decided by the Administrative Tribunal before its abolition on 31 December 2009, it was transferred to the Dispute Tribunal on 1 January 2010.

      In its Judgment, the Dispute Tribunal clarified that it was not bound by the conclusions of the JAB with regard to the admissibility of the application, and that it was on the contrary bound in all cases, including those where the issue is not raised by the parties, to verify whether its Statute, or the Statute of the former Administrative Tribunal, grants it jurisdiction to rule on the lawfulness of an administrative decision.

      On the question whether the decision contested was an appealable administrative decision, the Tribunal considered that, while the General Assembly intended to confer “operational independence” to OIOS, it must, in stating that the Office acts under the authority of the Secretary-General, have intended to acknowledge that the Secretary-General was administratively responsible for any breaches or illegalities OIOS might commit. The Tribunal therefore found itself confronted with two principles which were difficult to reconcile: on the one hand, the “operational independence” of OIOS and, on the other, the binding nature of the request to the Secretary-General for review of management evaluation of the decision taken by OIOS in the exercise of its investigative functions. The Tribunal declared that, when faced with apparently contradictory instruments of equal value, it must necessarily give precedence to the staff member’s right of access to justice. It concluded therefore that the fact that the Secretary-General may not modify the OIOS decision cannot operate to prevent the staff member from contesting it before the Tribunal, and that the decision of OIOS refusing to carry out the investigation requested by the Applicant was an administrative decision appealable to the Tribunal.

      With regard to the admissibility ratione temporis of the application, the Tribunal noted that where the Administration fails to raise the lateness of a staff member’s request for review of the decision, the Tribunal must do so on its own motion, because neither it nor the Administration has any right to waive an instrument setting time limits for appeals, unless in exceptional circumstances or in cases where the staff member has, before the expiration of the time limit, expressly requested an extension. Referring to its own case law (Ryan UNDT/2010/174 and Bernadel UNDT/2010/210), as well as that of the Appeals Tribunal (Sethia 2010-UNAT-079), according to which confirmative decisions subsequent to the contested administrative decision cannot be appealed, the Tribunal observed that the Applicant did not raise any new circumstances of fact or law dating from after the original administrative decision that might have obliged OIOS to take a new decision. Therefore, the Tribunal found that, by submitting her request for review to the Secretary-General more than six months after receiving notification of the contested decision, the Applicant was out of time and, therefore, it rejected the application as having been filed too late.

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   2. Judgment No. UNDT/2011/012 (13 January 2011): Tolstopiatov v. Secretary-General of the United Nations3

      Compensation—Determination of compensable period—Heads of compensation— Loss of income—Medical and dental insurance—Entitlements such as repatriation grants, travel costs—Pension benefits—Offset—Duty to mitigate loss

      In its Judgment UNDT/2010/147, the Dispute Tribunal held that the United Nations Children’s Fund (UNICEF) had breached its obligations to the Applicant under his terms of employment. Since the Applicant was a UNICEF staff member on an abolished post, it was found that during his noticed period (from the time he was notified of his separation until it was implemented) UNICEF did not follow its own mandatory procedures for granting preferential treatment when the Applicant applied for some positions, and UNICEF did not comply with its obligation to offer meaningful recruitment assistance to the Applicant.

      The issue to be determined by the Tribunal in the present Judgment was the compensation owing to the Applicant for the breach by UNICEF of its obligations under his terms of employment. The Tribunal preliminarily recalled that the very purpose of compensation is to place the staff member in the same position he or she would have been in, had the Organization complied with its contractual obligations. The Tribunal first examined the likelihood that the Applicant would have been offered a hypothetical new contract with UNICEF, and thereafter, where relevant, the characteristics of this new contract and any applicable offsets in the award of damages.

      In the Tribunal’s view, it was reasonable to assume that the Applicant would have been offered a new contract, had UNICEF properly complied with its own rules. The Tribunal found that, if UNICEF had fulfilled its obligations, this new contract would have been a two-year fixed-term appointment with a possibility of renewal. The Tribunal, however, considered that it could not be assumed that this contract would automatically have been renewed indefinitely and therefore limited the compensable period of time for lost compensation to a two-year term.

      The Tribunal found that the Applicant was entitled to compensation for income loss under the hypothetical new contract, which included health and dental insurance subsidies. It further found that the Applicant was entitled to compensation for repatriation grant, travel, shipment, accrued annual leave and termination indemnity, in accordance with his rights under the hypothetical new contract.

      In assessing the loss of earning capacity, the Tribunal recalled the principle in the case of Anaki 2010-UNAT-095, in which the Appeals Tribunal found that “compensation may only be awarded if it has been established that the staff member actually suffered damages”. The Tribunal found that there was no basis for awarding compensation on the grounds that the Applicant had failed to substantiate the allegations on which he supported his claim, for instance, how the early retirement influenced his employment marketability, what job opportunities he had lost as a result and how the so-called proportional calculation was warranted. The Tribunal also rejected the claims for compensation for loss of pension and for non-economic compensation.

      3 Judge Marilyn J. Kaman (New York).

      The Tribunal then determined that it was necessary to deduct, as an offset from compensation owing to the Applicant, any amounts received by him following his actual separation from UNICEF. The Tribunal observed...