Chapter V. Decisions of the administrative tribunals of the United Nations and related intergovernmental organizations
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Chapter V
DECISIONS OF THE ADMINISTRATIVE TRIBUNALS
OF THE UNITED NATIONS AND RELATED
INTERGOVERN MENTAL ORG ANIZATIONS1
A. United Nations Dispute Tribunal
By resolution 68/254 of 27 December 2013, entitled “Administration of justice at the
UnitedNations”, the General Assembly took note of the reports of t he Secretary-General
on the activities of t he UnitedNations Ombudsman and Mediation Services, a nd endorsed
the conclusions and recommendations contained i n the report of the Advisory Com mittee
on Administrative and Budgetary Questions. In this regard , the Assembly recalled para-
graph 20 of the report of the Advisory Committee and requested the Secreta ry-General
to submit for consideration at its sixty-ninth ses sion a revised proposal for conducting an
interim independent assessment of the sy stem of administration of justice. e Assembly
also requested the Interna l Justice Council to report on the impact of t he request contained
in paragraph 22 of resolution 67/241, taking into account t he view of all releva nt stake-
holders, and the Secretar y General to propose amendments to the statute of the Appeals
Tribunal, taki ng into account the recommendation of the Internal Justice Counci l.
In 2013, the UnitedNations Dispute Tribunal in NewYork, Geneva and Nairobi is-
sued a total of 181 judgments. Summaries of ve selected judgments are reproduced below.
1 In view of the large number of judg ments which were rendered in 2013 by the administ rative
tribunals of t he UnitedNation s and related intergovern mental organi zations, only t hose judgments
which address sig nicant issues of UnitedNations a dministrati ve law or are otherwise of genera l inter-
est have been summa rized in the prese nt edition of the Yearbook. For the f ull text of the complete se ries
of judgments rendered by the t ribunals, namely, Judgments Nos. UN DT/2013/001 to UNDT/2013/181
of the UnitedNat ions Dispute Tribunal, Judg ments Nos. 2013-UNAT-280 to 2013-UNAT-367 of the
UnitedNat ions Appeals Tribuna l, Judgments Nos. 3152 to 3244 of the Adm inistrat ive Tribunal of
the Internationa l Labour Organization, Dec isions Nos. 470 to 485 of the World Bank Administ rative
Tribunal, and Judgment Nos . 2013–1 to 2013–4 of the Internationa l Monetary Fund Administ rative
Tribunal, see, resp ectively, documents U NDT/2013/001 to UNDT/2013/181; 2013-UNAT-280 to
2013-UNAT-367; Judgments of the Adm inistrative Tribunal of t he International Labour Or ganization:
114th and 115th sessions; World Bank Ad ministrati ve Tribunal Report, 2013; and Inter national Monetar y
Fund Adminis trative Tribunal Report s, Judgment No. 2013–1 to 2013–4.
1. Judgment No. UNDT/2013/090 (26 June 2013): Candusso v. Secretary-General
of the UnitedNations2
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e Applicant, a General Ser vice level sta member in the Dep artment of Management
of the UnitedNations Secretariat, contested the de cision of the Secretary-General rejec ting
his request for compensation for lack of cafeteria faci lities in the building to which he wa s
relocated in connection wit h the renovation of the UnitedNations Headquarters Complex
in NewYork. e Applicant submitted that the cost of a cafeteria meal was a factor in
determining t he salary scale of General Ser vice level sta members and was thus part of
his contract of employment. He claimed t hat the lack of cafeteria services amounted to a
unilateral ch ange in the terms and conditions of his appoint ment, aecting his contract ual
right to a full salary. e Applicant submitted that the benet attributable to the provi-
sion of cafeteria services, although not necessa rily an express statutory or contractua l
right, constituted an essential component in assessing the level of his salary, thus giving
him an “implied or acquired right” over time, or at t he very least, a factual basis for a
legitimateexpectat ion.
e Tribunal rst considered the issue of the Applica nts’ standing, as it appeared that
he led his claim bot h in relation to his own rights as well as in hi s capacity as a sta rep-
resentative. e Tribunal stated that, to have st anding before theTribunal, a sta member
must show that the contested administrative decision aects her or his legal rig hts. e
Tribunal found that, under article 2.1(a) of its Statute, the Applicant did not have stand-
ing to intercede in acontractu al relationship that exists between other s ta members and
theOrganiz ation by ling applications on their behalf. However, the Tribunal found that
the Applicant had standi ng to contest the alleged breach of his own rights.
e Tribunal dismissed t he Respondent’s claim that the application was not receiv-
able because the contested decision applied generally and not only to the Applicant. e
Tribunal found that, for the purpos es of legal standing, it was irrelev ant whether the deci-
sion applied to other sta members and not just the Applica nt. e only relevant ques-
tion was whether the application concerned an administrative decision “alleged to be i n
non-compliance with the terms of appointment or the contract of employment” of the
Applicant (article2.1 of the Statute). e Tribunal found that the Applicant’s claim satised
therequirements of article 2 .1 of the Statute.
e Tribunal also dismi ssed the Respondent’s claim that the decision was t ime-barred
as the Applicant’s request for management evaluation wa s led almost two years aer re-
location to the new building . e Tribunal found that, for t hepurpose of claims regarding
incorrect calcu lation of salary, pay slips constituted administ rative decisions that may be
appealed. e question of how far back in t ime the Applicant would be able to go in seeking
recovery payments would be anissue that wou ld arise in the determination of appropriate
relief in theevent he prevails on t he merits.
2 Judge Memooda Ebra him-Carstens (NewYork).
e Tribunal further dismissed the Respondent’s claim that the Applicant should
have rst exhausted consult ation and negotiation mechanisms available throug h the sta
association machiner y. e Tribunal found that the issue raised by theApplicant was a
legal issue that concerned hi s contractual rights, and he wa s not required to rst engage in
consultative or review mecha nisms through the sta assoc iation.
Having found the application receivable, t he Tribunal turned to the merits of the
Applicant’s claims. Dealing with the cla im that the contested decision was in breach of
the Applicant’s acquired rights, t he Tribunal took note that the general principle of ac-
quired rights was incorporated into sta regu lation 12.1, which states that “[t]he present
Regulations may be supplemented or amended by the General Assembly, without preju-
dice to the acquired rig hts of sta members”. e Tribunal noted that the concept of ac-
quired rights had been dea lt with by various international tribunals, including the for-
mer UnitedNations Administr ative Tribunal Judgment, the World Bank Admini strative
Tribunal, and the Admin istrative Tribunal of theInternational Labour O rganization. e
Tribunal stated that it was unclea r whether the Applicant used the term “acquired rig ht”
in his application in the sa me sense given to it by various tribunals.
e Tribunal indicated that the concept of acquired rights pert ained to funda men-
tal and essentia l terms of employment without which the sta member would not have
accepted his job with t he Organization and t he modication of which would entai l “ex-
tremely grave consequences for [him], more serious than mere prejudice to hi s … nancial
interests”. Based on the aforementioned test, the Tribunal was u nconvinced that the access
to a subsidized cafeteria cons tituted such a fundamental and ess ential term of employment
that would have given rise to an acqu ired right. erefore, the Tribunal was not persuaded
that the concept of acquired rig hts was applicable in this case.
e Tribunal was also not persuaded t hat the variables associated with c afeteria ser-
vices were indeed part of t heformula used for the calculation of the salary of Genera l
Service sta . However, the Tribunal found that, even taking the Applicant’s case at its
highest—that is, accepting that a certa in nancial value relating to cafeteria s ervices was
indeed presently included as acomponent in his salary—the Applicant’s claim could not
succeed for the following reasons.
e Tribunal found that, having wa ited for approximately one year and a half to
raise claims rega rding the alleged lack of access to the UnitedNations ca feteria facilities,
the Applicant acquiesced to t hearrangements put in place by the Respondent in view of
the renovation-related requirements. With respect to the doc trine of acquiescence, the
Tribunal stated that, general ly, once the parties to a contract of employment have agreed to
its terms, neither part y may unilaterally a mend them unless the origina l contract provides
for agreed variations. However, there may be situations where anemployee consents to the
variation, including t hrough a waiver of a right. If not expressly waived, a right may be
impliedly waived by acquies cence or conduct that is inconsistent with theenforcement of
the right. A par ty to a contract may also be deemed to have waived his rig hts if it does not
act within a rea sonable time.
e Tribunal has also considered whet her the Respondent put in place sucient
measures to compensate theApplicant for theloss t hat resulted from the move to the new
building. e Tribunal stated t hat legitimate expectation ca n be created either through the
application of aregular practice or through a n express promise. Legitimate expectations
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