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

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DECISIONS OF ADMINISTRATIVE TRIBUNALS OF THE

UNITED NATIONS AND RELATED INTERGOVERNMENTAL ORGANIZATIONS

1. Decisions of the United Nations Administrative Tribunal2

   1. JUDGEMENT NO. 409 (11 MAY 1988): TRENNER V. THE SECRETARY-GENERAL OF THE INTERNATIONAL CIVIL AVIATION ORGANIZATION3

      Personal upgrading is within discretion of the Secretary-General — Any faults in the procedure leading to the decision not to reclassify post are irrelevant to the refusal to grant a personal upgrading — Tribunal cannot substitute its judgement for that of the Secretary-General in the reclassification of posts

      The Applicant, who had worked with the International Civil Aviation Organization (ICAO) in the past, was offered a job at the ICAO Regional Office in Paris as a Language Officer, at the P-3, Step V, level, but did not accept it. Upon further consideration, bearing in mind the Applicant’s experience, the Secretary-General amended the initial offer changing the entry level to P-3, Step X, which the Applicant accepted, and she re-entered the service of ICAO on 26 August 1985.

      In December 1985, the P-3 post encumbered by a Russian Language officer, who worked in the European Regional Office, with responsibilities similar to the Applicant’s, was upgraded to P-4. Subsequently, on 18 December 1985, the Applicant was recommended for promotion to P-4, and on 24 January 1986, the Applicant submitted a request for reclassification of her post to the P-4 level. On 28 April 1986, the Establishment Officer confirmed to the Secretary-General that her position had been graded correctly at the P-3 level in accordance with the standards set forth by the International Civil Service Commission for the common system. The Applicant was informed verbally on 13 May 1986 of this decision.

      On 12 June 1986, the Applicant requested a personal upgrading to P-4, which was also rejected. She appealed this decision.

      The Tribunal noted that a personal upgrading was a matter wholly within the discretion of the Secretary-General, the exercise of which could not be interfered with by the Tribunal in the absence of mistake of law or fact on his part, omission to consider essential facts, or consideration of extraneous matters.

      The Tribunal observed that the Applicant had attempted to link her present claim with alleged faults in the procedure leading to the decision not to reclassify her post, but any such faults would not be relevant to the Secretary-General’s decision to refuse personal upgrading. The Tribunal, however, stated that even if the present appeal had been against refusal to reclassify the Applicant’s post, it was not the function of the Tribunal to substitute its judgement for that of the

      Secretary-General in job classification matters, even if the Tribunal had acquired expertise in that area. Instead, the function of the Tribunal would have been to determine whether the Respondent had acted within his “reasonable discretion”. (See Judgement No. 396, Waldegrave (1987), paragraph XV.) The Tribunal further noted that the Applicant’s post had been re-evaluated by two independent experts from the ICSC who confirmed the P-3 level classification. Presumably, the Applicant would bring her concerns to the attention of the appropriate review body.

      For the foregoing reasons, all pleas of the Applicant were rejected.

   2. JUDGEMENT NO. 410 (17 MAY 1988): NOLL-WAGENFELD V. THE SECRETARY-GENERAL OF THE UNITED NATIONS4

      Recovery of overpayment in respect of dependency benefits — Staff rule 104.10(d) — Rule-making authority invested in the Secretary-General — No retroactive effect of staff rules — Question of interpretation of staff rule — Incumbent on staff member to request an authoritative determination of eligibility for benefits since her interpretation of staff rule differed from the Administration’s

      — Higher standard of conduct for staff members who are attorneys — Effect of negligence on part of the Administration

      The Applicant appealed the decision to recover overpayments of dependency benefits she had received in respect of her twins. The Respondent had contended that the Applicant was not eligible for dependency benefits because her husband, who worked for the International Telecommunication Union (ITU), a United Nations specialized agency, was receiving dependency benefits in respect of their first child, and only one spouse could receive such benefits under the Staff Regulations and Rules.

      The Tribunal pointed out that the central substantive question turned on the applicability and meaning of the United Nations staff rule 104.10(d) which provided that:

      “The marriage of one staff member to another shall not affect the contractual status of either spouse but their entitlements and other benefits shall be modified as provided in the relevant Staff Regulations and Rules. The same modifications shall apply in the case of a staff member whose spouse is a staff member of another organization participating in the United Nations common system …”

      The Applicant had raised the question as to whether the rule could have validly imposed anything on any other organization such as the ITU, or the latter’s staff members. However, the Tribunal considered that the ITU and the United Nations participate in the United Nations common system. Furthermore, staff rule 104.10(d) had been authorized by General Assembly legislative action as a valid exercise of the Secretary-General’s authority, and was consistent with the broad principles of personnel policy, one of which disfavoured duplication of benefits and inequality as between staff members regarding dependency benefits. Moreover, it was not for the Tribunal to impose artificial restrictions on the rule-making authority invested in the Secretary-General by the General As-

      sembly in this regard. The Tribunal, therefore, rejected the Applicant’s notion that before the Secretary-General could properly adopt staff rule 104.10(d), it was necessary for the General Assembly to have included in the Staff Regulations a specific principle relating to the effect of marriage between United Nations staff members and staff members of other organizations in the common system.

      The Tribunal also rejected the Applicant’s contention that staff rule 104.10(d) would not apply to her because her marriage occurred prior to 1 January 1980, the effective date of the provision in question. However, the Tribunal disagreed, finding no evidence of any intention by the Secretary-General to create a privileged group of staff members entitled to continuation of duplicate dependency benefits because of the happenstance that their marriage occurred before 1 January 1980. Moreover, in the Applicant’s situation, the duplicate benefits payments which she sought to perpetuate were directly occasioned, not by her marriage, but by the birth of her twins in late 1981. There was no improper retroactive application of the staff rule.

      The Applicant also raised questions of the interpretation of staff rule 104.10(d). However, the Tribunal disagreed with the Applicant’s interpretation of the words “some modifications,” preferring the plain meaning and intention of the staff rule. Moreover, the Tribunal stated that if there were even the slightest question as to how the Administration interpreted staff rule 104.10(d), it was dispelled by administrative instruction ST/AI/273, which clearly and unequivocally placed the Applicant on notice that her view regarding entitlement to dependency benefits was not shared by the Administration.

      In the Tribunal’s view, in all circumstances of this case, the Applicant could not have been unaware that she was not entitled to dependency benefits and that it was inappropriate for her to claim them before having requested from the Administration an authoritative written determination, upon which she could have appealed if unfavourable. There was no valid reason for the Applicant to have had the free use of United Nations funds prior to such a determination. Equally inappropriate was the Applicant’s apparent theory that if there were some impropriety in her seeking and obtaining benefits, it was up to the Administration to discover this and notify her. (Cf. Judgement No. 346, Chojnacka (1985).) The Organization was entitled to a higher standard of conduct from the staff, particularly attorneys.

      The Applicant also advanced a number of procedural arguments. The Tribunal noted preliminarily that when, as here, a staff member had received funds from the Organization to which the staff member was not entitled because of a staff rule such as 104.10(d), and had done so on the basis of her own interpretation of the rule, which was in conflict with an official interpretation of the Administration, the right of the Organization to recover overpayments under staff rule 103.18 would not be defeated by purely technical procedural arguments in the absence of a compelling showing of substantial prejudice resulting from the alleged procedural deficiency. The Tribunal did take note of the negligence on the part of the Administration, describing it as reaching “an astonishing level,” but stated that this negligence did not absolve the Applicant of responsibility. The Administration could recover the overpayments paid to the Applicant.

   3. JUDGEMENT NO 415 (24 MAY 1988): MIZUNO V. THE SECRETARY-GENERAL OF THE UNITED NATIONS5

      Non-renewal of fixed-term appointment because of refusal to accept a field posting — Competency of Joint Appeals Board — Question of discrimination — Due process rights of staff member must be fully protected even when he is annoying and suspected of dissimulation and lack of candour — Question of reasonable expectation of continuous employment — Requirement of a formal warning

      In 1983, the United Nations High Commissioner for Refugees (UNHCR) announced to the staff new guidelines for the reassignment of staff in the Professional category to be applied with immediate effect. Under the new policy, staff members could express...