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

Chapter v1

DeCisions oF ADministRAtive tRiBUnALs oF the UniteD nAtions AnD ReLAteD inteRgoveRnmentAL oRgAnizAtions

  1. Decisions of the United nations Administrative tribunal2

    1. Judgement No. 1102 (21 July 2003): Hijaz v. Commissioner-General of the United Nations Relief Works Agency for Palestine Refugees in the Near East3

      Terms of employment—Resignation—Abandonment of post—Settlement negotiations On 27 January 1998, the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) sent the Applicant a letter of appointment for the Grade 16 post of Personnel Officer (I) at the UNRWA International Personnel Section in Gaza. The offer was for a one-year appointment, but according to the letter the contract

      In view of the large number of judgements which were rendered in 2003 by administrative tribunals of the United Nations and related intergovernmental organizations, only those judgements which are of general interest and/or set out a significant point of United Nations administrative law have been summarized in the present edition of the Yearbook . For the integral text of the complete series of judgements rendered by the tribunals, namely, Judgements Nos. 1101 to 1163 of the United Nations Administrative Tribunal, Judgements Nos. 2168 to 2270 of the Administrative Tribunal of the International Labour Organization, Decisions Nos. 292 to 308 of the World Bank Administrative Tribunal, and Judgements Nos. 2003–1 to 2003–2 of the International Monetary Fund Administrative Tribunal, see, respectively, documents AT/DEC/1101 to AT/DEC/1163; Judgements of the Administrative Tribunal of the International Labour Organization: 94th and 95th Ordinary Sessions; World Bank Administrative Tribunal Reports, 2003; and International Monetary Fund Administrative Tribunal Reports, Judgements Nos . 2003–1 to 2003–2 .

      Under article 2 of its statute, the Administrative Tribunal of the United Nations is competent to hear and pass judgement upon applications alleging non-observance of contracts of employment of staff members of the Secretariat of the United Nations or of the terms of appointment of such staff members.

      The Tribunal shall be open: (a) to any staff member of the Secretariat of the United Nations even after his employment has ceased, and to any person who has succeeded to the staff member’s rights on his death; and (b) to any other person who can show that he is entitled to rights under any contract or terms of appointment, including the provisions of staff regulations and rules upon which the staff member could have relied.

      Article 14 of the statute states that the competence of the Tribunal may be extended to any specialized agency brought into relationship with the United Nations in accordance with the provisions of Articles 57 and 63 of the Charter of the United Nations upon the terms established by a special agreement to be made with each such agency by the Secretary-General of the United Nations. Such agreements have been concluded, pursuant to the above provisions, with two specialized agencies: International Civil Aviation Organization and International Maritime Organization. In addition, the Tribunal is competent to hear applications alleging non-observance of the Regulations of the United Nations Joint Staff Pension Fund, including applications brought in such respect by staff members of the International Tribunal for the Law of the Sea and the International Seabed Authority.

      Kevin Haugh, Vice-President, presiding; and Omer Yousif Bireedo and Jacqueline R. Scott, Members.

      478 United Nations Juridical Yearbook 2003

      would be extended for another year, subject to satisfactory performance. The letter advised the Applicant that his appointment was subject to the Area Staff Regulations and Rules. On 3 February, the Applicant accepted the offer and, on 1 March, he entered the service of UNRWA. On 19 March, however, the Applicant signed a fixed-term “Category X” letter of appointment, with effect from 1 March, which contained significantly different provisions. On 12 July, the Applicant was given an overall rating of “[a] very good performance” in his Performance Evaluation Report (PER).

      On 24 July 1998, the International Criminal Tribunal for Rwanda (ICTR) advised UNRWA that it would be interested in the Applicant’s services under a fixed-term appointment for an initial period of one year, on the understanding that UNRWA would release him on secondment. On 6 August, the Applicant advised ICTR that it was not UNRWA’s policy to release staff members on secondment, but that he was “willing to resign” in order to take up the appointment. On 20 October, the Applicant indicated to the Deputy Commissioner-General that although he had received an offer of employment from ICTR, he would prefer to stay with UNRWA in a professional post. The Applicant requested his assistance in this regard.

      On 14 January 1999, the Commissioner-General approved the restructuring of the Human Resources Division, which resulted in the abolition of the Applicant’s post. On 27 January, the Applicant was advised that his fixed-term appointment would not be extended beyond its expiration on 28 February. On 31 January, the Applicant requested review of this decision.

      On 4 February 1999, the Applicant advised UNRWA that ICTR had again made him an offer of employment. He requested to be released on secondment and asked for three days of annual leave. The Director of Administration and Finance, Gaza, responded on 7 February, accepting his “resignation . . . as . . . requested” but noting that secondment could not be approved because the Applicant’s post was being deleted. On 8 February, the Applicant replied that he had not submitted a resignation, and requested administrative review of the decisions to terminate his appointment and to deny his request for secondment.

      On 12 February 1999, the Applicant joined ICTR. On 15 February, the Director of Administration and Finance, Gaza, wrote to the Applicant, confirming “acceptance of [his] resignation” and noting that this was “definitively in [his] best interest as compared to abandonment of post.” On 6 April, the Applicant lodged an appeal with the Joint Appeals Board (JAB).

      On 14 July 1999, the Applicant was offered three months’ base salary in lieu of provisional redundancy and a termination indemnity, on the condition that his appeal was withdrawn. The Applicant rejected this offer.

      In its report of 23 July 2000, the JAB found that the decision to consider the Applicant’s request for secondment as a resignation was not well-founded. Further, it found that, in deleting the Applicant’s post, UNRWA had failed to follow the provisions of Personnel Directive A/9. However, the JAB was of the opinion that in arranging to travel to Tanzania while still working for UNRWA, the Applicant had acted hastily and that he should have reported back for duty after his annual leave to prove that he did not intend to abandon his post. The JAB ultimately concluded that despite its irregularities, the Administration’s decision had been taken without prejudice and recommended that the case be rejected. It noted, however, that it felt that the Applicant be compensated under staff rule 109.11. On 5 September, the Applicant was informed that the Commissioner-General had accepted


      the Board’s recommendation that the appeal should be dismissed. He was advised that, in abandoning his post, he had abandoned any entitlement to compensation he might have had, and that the settlement he had since refused had been at least equal to the amount he might have received under rule 109.11 had he not abandoned his post. UNRWA had thus determined that no compensation should be paid. On 11 April 2001, the Applicant filed his application with the Tribunal.

      In its consideration of the case, the Tribunal held that the terms of the Applicant’s appointment were indisputably those offered to him by the Agency in its letter of 27 January 1998, as those terms were the only ones in existence on 1 March when the Applicant entered into service. That letter had provided that, subject to satisfactory performance, the Applicant’s appointment would be extended for a second year. As his performance had at all times been satisfactory, “the Applicant effectively acquired the right to a two-year term of employment commencing on 1 March 1998 and expiring on 28 February 2000, unless otherwise lawfully terminated.” The Tribunal took note of the fact that the terms of the “Category X” letter of appointment were disadvantageous to the Applicant when compared with the those contained in the letter of 27 January, and registered its “significant doubts as to the legality or efficacy of what may have been a unilateral alteration of the original terms on which the Applicant was appointed,” the Tribunal being “far from satisfied that the Applicant had voluntarily and effectively renounced or surrendered the valuable rights that he had acquired when he accepted the original offer of employment.”

      With respect to the decision to treat the Applicant’s departure for ICTR as resignation of his position, the Tribunal accepted that UNRWA had categorized the departure as such in good faith and in what it believed to be the Applicant’s best interests. Whilst the Tribunal was satisfied that the use of the term resignation had not been legally justified, it held that “it did no wrong or injustice to the Applicant, nor does it give rise to grounds that would justify an award of damages or other compensation.”

      However, having determined that the Applicant had, in effect, a two-year contract, the Tribunal held that UNRWA’s letter of 27 January 1999 had not accurately addressed the Applicant’s legal situation, as it had stated erroneously that his contract was due to expire on 28 February 1999. As that letter had spurred the Applicant into seeking employment with ICTR, the Tribunal found that the Respondent could not reasonably argue that he was in...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT