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
UnitedNations”, the General Assembly took note of the reports of t he Secretary-General
on the activities of t he UnitedNations 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 UnitedNations Dispute Tribunal in NewYork, 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 UnitedNation s and related intergovern mental organi zations, only t hose judgments
which address sig nicant issues of UnitedNations 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 UnitedNat ions Dispute Tribunal, Judg ments Nos. 2013-UNAT-280 to 2013-UNAT-367 of the
UnitedNat 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 UnitedNations2
L     —P   -
    —S        
        
  T—V  —A —A-
   —W   —L  
e Applicant, a General Ser vice level sta member in the Dep artment of Management
of the UnitedNations 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 UnitedNations Headquarters Complex
in NewYork. 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, aecting his contract ual
right to a full salary. e Applicant submitted that the benet 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
legitimateexpectat 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 theTribunal, a sta member
must show that the contested administrative decision aects 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 acontractu al relationship that exists between other s ta members and
theOrganiz 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 (article2.1 of the Statute). e Tribunal found that the Applicant’s claim satised
therequirements 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 aer re-
location to the new building . e Tribunal found that, for t hepurpose 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 anissue that wou ld arise in the determination of appropriate
relief in theevent he prevails on t he merits.
2 Judge Memooda Ebra him-Carstens (NewYork).
  
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 theApplicant 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 UnitedNations Administr ative Tribunal Judgment, the World Bank Admini strative
Tribunal, and the Admin istrative Tribunal of theInternational 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 modication 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 heformula 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 acomponent 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 UnitedNations ca feteria facilities,
the Applicant acquiesced to t hearrangements 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 anemployee 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 theenforcement 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 sucient
measures to compensate theApplicant for theloss 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 aregular practice or through a n express promise. Legitimate expectations

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