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

1

DECISIONS OF ADMINISTRATIVE TRIBUNALS OF THE UNITED

NATIONS AND RELATED INTERGOVERNMENTAL ORGANIZATIONS

1. Decisions of the United Nations Administrative Tribunal2

   1. JUDGEMENT NO. 690 (21 JULY 1995): CHILESHE V. THE SECRETARYGENERAL OF THE UNITED NATIONS3

      Non-promotion to D-1 post—Review of a discretionary decision Question of end-of-career promotion—Delay in selection process was unfair

      The Applicant, who was at the P-5 level, applied for the D-1 post of Director, Trade and Development, Finance Division, at the Economic Commission for Africa, a post he had occupied as Officer-in-Charge with effect from 21 December 1990. The Applicant also requested a special post allowance (SPA) at the D-1 level with effect from that date. After a second round of advertising the post, on 5 December 1991 the names of eight candidates including the Applicant’s were forwarded to the Acting Executive Secretary. However, discussions as to the restructuring of ECA commenced in December 1991, resulting in the postponement of a decision on the selection of a candidate for the post. Although the Applicant was eventually recommended for the promotion by the Ad Hoc Committee on Professional Staff Careers, on 6 May 1992 the Acting Executive Secretary informed the Applicant that he would not be promoted because he was approaching retirement age—at the end of October 1992, which was extended three months to 31 January 1993.

      The Applicant appealed the decision of the 16 July 1993 not to promote him retroactively to the D-1 level post. Instead, in accordance with the recommendation of the Joint Appeals Board, the Secretary-General decided that the Applicant following his retirement should be paid an indemnity equal to a special post allowance to the D-1 level for the period from 1 April 1991 until the date of the Applicant’s separation from service. The Applicant appealed the decision to the Tribunal.

      The Tribunal, relying on consistent jurisprudence holding that its review of discretionary decisions with respect to promotion was extremely limited, concluded, however that the Respondent’s decision not to promote the Applicant retroactively was flawed. There was no wrongful motivation or mistake involved. In the view of the Tribunal, the decision not to make an end-of-career promotion was premised on a rational policy expressed in the Manual for Appointment and Promotion Committees. The Tribunal also observed that in a similar situation the International Labour Organization had stated:

      “…promotion is at the discretion of the Organization, which must be free to grant or withhold it in accordance with objective working requirements. It follows that any grants of promotions at the time of retirement is inher-

      ently contrary to the Organization’s interests because by then there can no longer be any question of taking on the higher level of responsibility that promotion entails. The Tribunal therefore holds that the Organization is right to follow the policy of refusing its staff promotion, which would have the sole effect of laying a burden of social costs on the institution as a whole without conferring on it any benefit in return.” In re Heritier, ILOAT Judgement No. 1388 (1995).

      At the same time, the Tribunal was of the opinion that there was an element of unfairness present in the treatment of the Applicant that was not adequately remedied by the grant of an SPA to him. The unfairness consisted of allowing nine months to elapse after readvertisement of the D-1 vacancy without selecting the best qualified candidate, who evidently was the Applicant. This was quite harmful to the Applicant as the Tribunal pointed out, because by the time the potential restructuring had been considered the Applicant was close enough to retirement to cause his likely promotion to fall by the wayside.

      In view of the foregoing, the Tribunal awarded the Applicant $7,000 and rejected all other pleas.

   2. JUDGEMENT NO. 692 (21 JULY 1995): WHITE, LE STER, MAROUF, BEN

      FADHEL, DODINO AND ATAR V. THE SECRETARY-GENERAL OF THE INTER-NATIONAL MARITIME ORGANIZATION4

      Salary deduction for participation in a work stoppage—Staff rule provision must be interpreted in the context of the entire staff rule and not looked at in isolation—No entitlement to pay for a period a staff member does not work— Leave must be authorized

      Upon recommendation of the Federation of International Civil Servants’ Associations (FICSA), of which the International Maritime Organization Staff Association was an affiliate, the IMO Staff Assembly scheduled a one-half day work stoppage for Friday morning, 6 November 1992. The Applicants had half a day’s pay deducted from their salaries as a result of their absenting themselves without leave for the period in question. Subsequently, they appealed this measure, contending that staff rule 105.1(d) applied in this case, and annual leave should have been deducted for the absence, rather than pay. The further ground put forward by the Applicants was that the deduction of salary was not only contrary to the staff rule, but also a disguised disciplinary sanction and so constituted an infringement of the Applicant’s terms of appointment. The Applicants had contended that strikes could not be considered to be illegal and could not, in principle, result in disciplinary action; that the Administration could have properly deducted annual leave for the period of the strike under staff rule 2105.1(d), and only if the staff member concerned had no accrued annual leave could pay be withheld for the period of “unauthorized absence”.

      The Tribunal noted that staff ruled 105.1(d) stated:

      “Any absence from duty not specifically covered by other provisions in these rules shall be charged to the staff member’s accrued annual leave, if any; if the staff member has no accrued annual leave, it shall be considered as unauthorized and pay and allowances shall cease for the period of such absence.”

      While agreeing with the Applicant’s interpretation of the staff rule—that persons who had annual leave had the right to have the absence charged against such annual leave—the Tribunal considered that the interpretation could not be taken in isolation in resolving the situation. In that regard, the Tribunal noted that staff rule 105.1(d) appeared under the heading “Annual Leave” and was preceded by the words contained in staff rule 105.1(b) “Leave may be taken only when authorized” and therefore it would be unrealistic to suggest that this stricture did not also apply to the absence from duty referred to in staff rule 105.1(d)

      Therefore, the Tribunal concluded that the Respondent could not be faulted for acting as he had even though the specific wording of the rule may have been regarded as ambiguous. For that reason, the Tribunal found that the deduction of salary could not be regarded as a disciplinary sanction.

      Moreover, the Tribunal recalled the position adopted in Smith (Judgement

      No. 249 (1975)), in which it was held:

      “… that staff regulation 1.2 provides that ‘the whole time of staff members shall be at the disposal of the Secretary-General. The Secretary-General shall establish a normal working week’… It is therefore apparent that ‘work’ is the fundamental obligation of staff members. Receipt of salary is, moreover, the essential counterpart to work performed.”

      “The unauthorized absence from work or attendance at the place of work while failing to perform duties removes the basis for payment of salary.”

      Although the staff rules were silent on the matter of work stoppages, Smith recognized that there was no general principle of law to provide any entitlement to pay for a period during which an employee did not work. Furthermore, the Tribunal found that leave could be taken only when authorized. The Tribunal concluded that the unauthorized leave of 6 November should not be compensated, and therefore rejected the Applicant’s pleas.

   3. JUDGEMENT NO. 696 (21 JULY 1995): DE BRANDT-DIOSO V. THE

      SECRETARY-GENERAL OF THE UNITED NATIONS5

      Reimbursement for theft while on mission—Question of acting within the scope of official duties—Special risks at United Nations missions—Question of negligence on the part of the staff member

      The Applicant, who had been employed with the Organization since 1975, filed a claim for her loss, which occurred while on mission in Haiti, with the United Nations Headquarters Claims Board. The loss had occurred towards the end of her assignment with the United Nations Observer Group for the Verification of Elections in Haiti (ONUVEH). On 28 January 1991, the Applicant had withdrawn, in cash, the balance of her account with a bank in Haiti and had cashed her last mission subsistence allowance (MSA) cheques. She then parked her car in a busy market area in Port-au-Prince and a local youth who had accompanied her went to fetch wrapping materials, apparently leaving the door unlocked on the passenger side when he left the vehicle. The Applicant’s handbag, containing approximately US$ 4,000 and 2,000 Haitian gourdes and an 18-carat-gold man’s signet ring (with a value of approximately $1,800), was taken off the passenger seat by an unknown individual who had quietly opened the door of the car.

      The Applicant’s claim was denied and she appealed, contending that she was on official business and was not negligent when conducting it. The Respondent had maintained that the loss was a matter of common theft.

      The Tribunal agreed with the applicant that she had been acting within the scope of her official duties when the theft occurred. The Applicant was using an official ONUVEH vehicle and was in the process of making final travel arrangements to leave the duty station after having closed her local bank account and cashed her last MSA cheques. As the Tribunal noted, staff members were required to close their bank accounts before leaving and therefore it was appropriate for the Applicant to be carrying a substantial amount of cash at the time of the theft.

      The Tribunal...