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

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

1. Decisions of the Administrative Tribunal of the United Nations1

   1. JUDGEMENT NO. 253 (22 APRIL 1980):2 KLEE V. SECRETARY-GENERAL OF THE UNITED

      NATIONS

      Compensation expressed in a currency other than the United States dollar — Rate of ex-change — Relevance to same of the method followed in determining the measure of damages

      In this judgement, the Tribunal interprets its previous Judgement No. 242 delivered on 22 May 19793 in which it had decided that the Secretary-General "pay the applicant the amount of 15 months' salary at the P-3, step VII level, Including all allowances except home-leave entitlement, which the applicant would have earned had he been maintained in UNEDO's service for 15 months from 1 April 1976".

      Pursuant to the said judgement, the Administration made an advance pending final payment, the said advance representing 80 per cent of the salary plus emoluments due to the applicant. The Administration's final calculations showed what it considered to be an over-payment and, rather than pay the applicant a balance, it claimed reimbursement of the sum of Austrian schillings 1,726 said to result from the application of the rate for conversion prevailing on the date of payment.

      The applicant requested the Tribunal to interpret its previous judgement and to rule that the compensation awarded him should be paid in Austrian currency at the rates of exchange in effect between 1 April 1976 and 30 June 1977. Applicant's major argument was that the rate of exchange should relate to the period of 15 months during which the Tribunal, for the purpose of determining the amount of compensation, ruled that he should be considered as having been in the service of UNIDO. Applicant added that otherwise the sum paid to him would not in fact correspond to the salary which he would actually have been paid during that period and which constitutes the basis for the compensation awarded by the Tribunal.

      Respondent's major argument was that in accordance with the established policy of the United Nations, the rate of exchange is that in effect as of the date of payment. Respondent added that payment was not unreasonably delayed by him.

      In interpreting its previous judgement, the Tribunal attached much importance to the method it followed in determining the measure of damages. The Tribunal emphasized that it had fixed the compensation by reference to the applicant's notionally continued service for 15 months from 1 April 1976. This method clearly shows that the Tribunal intended actually to reconstruct the applicant's career financially for the said period.

      The Tribunal distinguished the instant case from the Johnson case (Judgement No. 234)4 cited by Respondent. In that case, the method of determining the measure of damages was different in that it was fixed by reference to a definitively established amount, "equal to the amount of 2 years' net based salary". There was no notional continuation of service in the Johnson case.

      For the above reasons, the Tribunal ruled that the compensation awarded the applicant must be calculated by reference to the sums he would have earned in Austrian schillings had he been maintained in service over the period from 1 April 1976 to 30 June 1977 and that the conversion of the dollar amounts should be on the basis of the various successive exchange rates during that period.

      With regard to the sum of $ 1,000 awarded for costs, the Tribunal decided, following precedent of Judgement No. 234 (Johnson), that conversion should be at the rate prevailing on the date of Judgement ordering payment, namely 22 May 1979.

   2. JUDGEMENT NO. 254 (23 APRIL 1980):5 FERNANDEZ-LOPEZ V. SECRETARY-GENERAL OF THE

      UNITED NATIONS

      Compensability of death arising out of an accident while travelling to the normal place of work in a supervisor's private automobile — Interpretation of article 2 (b) (Hi) in fine of appendix D — Non-applicability of rules adopted in inter-organizational consultations and creating provisions beyond the existing regulations and rules unless such rules are incorporated in the individual rules of the organization concerned

      On 23 March 1975, the applicant's husband, a staff member of UNCTAD, suffered death while travelling with his supervisor in the latter's private automobile from the staff member's home in the suburbs of Geneva to the Palais des Nations. The accident occurred on a Sunday and the route followed by the staff member's supervisor, who was also fatally injured in the accident, was not a direct route from the staff member's home to the office. It is not contested that the purpose of this trip on the date of the accident was to attend to some urgent business of the United Nations. The applicant was denied compensation under appendix D on the ground that the accident resulting in her husband's death was not attributable to United Nations service. More particularly, emphasis was put on the provision contained in subsection (b) (iii) of article 2 of appendix D which excludes from compensability injury or death arising out of private motor vehicle transportation sanctioned or authorized by the United Nations on the request and for the convenience of the staff member.

      In her application, the applicant argued mainly that the above-mentioned provision of article 2 (b) (iii) concerns the case of a staff member travelling in his own vehicle to or from work on an ordinary working day. She submitted that the situation would be substantially different had the staff member been requested by his supervisor to travel to the place of work in a vehicle supplied by the supervisor.

      The respondent's position was based mainly on his contention that injury or death arising out of accidents taking place during travel to work are considered service incurred only where the travel is along a direct route between the staff member's home and his place of work. This, the respondent explained, was a new general rule adopted in consultations among the United Nations and the specialized agencies. The respondent pointed out that the direction of travel, as well as the location of the accident, did not indicate that the staff members were on a direct route to their offices at the time of the accident. Furthermore, the respondent observed that the vehicle was not furnished by or at the direction of the United Nations and that the supervisor did not have authority to approve the use of a private automobile, including his own, for official travel.

      The Tribunal ruled out the application of the "general rule" agreed to among organizations of the United Nations system. In so doing, it pointed out that if such a rule goes beyond a simple interpretation of existing regulations and rules, it cannot be considered as governing the relations between the Administration and the staff of an organization unless it is incorporated in the individual terms of appointment or in rules duly established by the international organization concerned.

      With regard to article 2 (b) (iii) in fine, the Tribunal ruled that its provision was not intended to regulate the problems arising out of accidents occurring as a result of travelling to and from the normal place of work. It related obviously to any other kind of official travel, for instance, when a staff member instead of travelling by train wishes to use his own car. This may be authorized for his own convenience and at his own risk. The travelling by car to and from the normal place of work needs no authorization and falls outside the ambit of article 2 (b) (iii). The Tribunal considered the Administration's more extensive interpretation of this provision inadmissible.

      The Tribunal found that the death of the applicant's husband was attributable to the performance of his official duties under article 2(a) of appendix D since he was travelling as instructed by his superior. With regard to the question of taking a direct or indirect route to work, the Tribunal observed that this point was not mentioned in appendix D and that, furthermore, it did not arise in the instant case because the choice of route was not that of the applicant's husband.

      For the above reasons, the Tribunal rescinded the decision denying the applicant compensation and ruled that she and her dependent children were entitled to compensation as provided in staff rule 106.4 and in appendix D to the Staff Rules.

   3. JUDGEMENT NO. 255 (24 APRIL 1980):6 TEIXEIRA V. SECRETARY-GENERAL OF THE UNITED

      NATIONS

      Revision of Tribunal judgements — Limits of the power of revision under the statute of the Tribunal

      By its Judgement No. 233, delivered on 13 October 1978,7 the Tribunal had ruled on the merits of the applicant's claim that he was in fact a staff member although he was serving as an independent contractor under a series of successive special service agreements. The Tribunal had denied the claim but, in view of the length of the period involved and of the circumstances of the case, it awarded the applicant $3,000 in damages.

      In a subsequent application, the applicant requested the Tribunal to revise its aforementioned judgement under articles 11 and 12 of its statute and to grant in substance his original pleas.

      The Tribunal first observed that article 11 of its statute is irrelevant since it refers to a procedure which is not conducted before the Tribunal. With regard to article 12, the Tribunal observed that it can revise a judgement under its provisions only if three specific circumstances mentioned therein are established. The Tribunal recalled its previous ruling in its Judgement No. 73 (Bulsardf to the effect that its powers of revision are strictly limited by its statute and that the said powers cannot be enlarged or abridged in the exercise of its jurisdiction by the Tribunal.

      In applying those principles to the instant application for revision, the Tribunal noted that no newly discovered fact was mentioned...