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

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DECISIONS OF ADMINISTRATIVE TRIBUNALS OF THE

UNITED NATIONS AND RELATED INTERGOVERNMENTAL ORGANIZATIONS

1. Decisions of the Administrative Tribunal of the United Nations2

   1. JUDGEMENT NO. 636 (8 JULY 1994): NOLL-WAGENFELD V. THE SECRETARYGENERAL OF THE UNITED NATIONS3

      Claim for earlier effective date for promotion to P-5 — Question of whether Respondent may consider staff member’s past conduct whether or not subject of a prior Tribunal decision for promotion purposes — Discretion of Secretary-General in such cases

      The applicant was appointed Senior Legal Officer, effective 1 April 1987, but was not promoted to the corresponding P-5 grade level, pursuant to information circular ST/IC/89/37 (dated 24 May 1989), the 1987 Senior Officer (P-5) Promotion Register. She instituted a recourse procedure against the non-inclusion of her name in the Register and argued, inter alia, that since her performance had been fully satisfactory the Appointment and Promotion Board undoubtedly had taken into account the facts of United Nations Administrative Tribunal Judgement No. 410, dated

      13 May 1988, in which the Tribunal held that she was not entitled to receive her salary at the dependency rate and a dependency allowance in respect of two of her children as her husband, who was a staff member of the International Telecommunication Union, was also receiving his salary at the dependency rate in respect of their older daughter and such payment constituted duplicate payment of dependency benefits, prohibited under the United Nations Staff Regulations and Staff Rules. In her view, taking into account this Judgment amounted to a demotion, a disciplinary measure which could only be applied as a result of disciplinary proceedings.

      Her recourse was unsuccessful and she, in April 1990, appealed to the Joint Appeals Board, in April 1990, which subsequently recommended that the applicant’s case for promotion be considered fully and fairly under the guidelines for the 1987 promotion review. In January 1992, she was informed by the Director, Office of the Under-Secretary-General for Administration and Management, that the Secretary-General shared the Board’s conclusion that her case fell within the guidelines of the 1987 promotion review, and that a full consideration did not appear to have been given in her case as one of the reasons given for rejection of her case was procedural grounds. At the same time, the Secretary-General reaffirmed to her that, in accordance with staff regulation 4.5, the paramount consideration in promotion was the necessity of securing the highest standards of efficiency, competence and integrity. Her case was remanded to the Appointment and Promotion Board for full and fair consideration of her eligibility for promotion under the 1987 review.

      In July 1992, the Under-Secretary-General informed the applicant that based on the recommendation of the Appointment and Promotion Board that her promotion to P-5 not be retroactive but be closer to the date of the Board’s deliberations on the case, her promotion was made effective 1 April 1992.

      The applicant, however, contended that her effective date should have been 1 October 1987, the earliest possible date established in ST/IC/89/37 for promotion from the 1987 register, and that the Respondent could not lawfully take into account facts surrounding the Tribunal’s Judgement No. 410 in establishing her effective date. The Tribunal noted that the information circular did not prohibit a later effective date, after 1 October 1987.

      Regarding the issue of Judgement No. 410, the Tribunal held that it was proper for the Respondent to consider the facts surrounding the case, that it was neither arbitrary nor discriminatory for the Respondent to take them into account in exercising his discretion regarding the effective date of the Applicant’s promotion. Those facts were not an extraneous factor that the Respondent was compelled to ignore in deciding whether and the extent to which the “highest” standards were met by the Applicant, or as to the manner in which the Respondent should exercise his discretion regarding the effective date of her promotion. The Tribunal further stated that it would have been an unwarranted intrusion for it to hold that the Respondent was required in such a context to disregard facts regarding a staff member’s past conduct, whether or not that conduct happened to be involved in a prior Tribunal decision. What was said about those facts in Judgement No. 410, as well as what was said by the Applicant in her recourse, comprised material relevant to the criteria for promotion and the Respondent was entitled to appraise that material freely.

      With respect to decisions involving promotions or their effective date, the Secretary-General’s discretion is necessarily judgmental. So long as it is not tainted by arbitrariness, bias, discrimination, mistake of act, or other extraneous factors, it will not be overturned by the Tribunal. In this case, the Tribunal was unable to perceive the presence of any such flaws.

      For the foregoing reasons, the application was rejected.

   2. JUDGEMENT NO. 638 (13 JULY 1994): TREGGI V. THE SECRETARY-GENERAL OF THE UNITED NATIONS4

      Claim for reimbursement of travel expenses — Question of obtaining authorization to travel on behalf of the Organization — Question of unjust enrichment on part of the Administration

      The Applicant had obtained, in the absence of the Director, Programme Support Division, Department of Technical Cooperation and Development, endorsement of his travel to Moscow in conjunction with his home leave from the new Chief of Technical Assistance Recruitment and Administration Service, and a travel authorization was issued on 1 June 1991. When the Director learned of the Applicant’s travel plans, he indicated in a note dated 21 June to the Chief of the Service that he would not approve the additional funds required for the Applicant’s three-day stay in Moscow. On 25 June, in a memorandum purportedly copied to the Applicant the Director requested the amendment of the travel authorization, which was duly amended. The Applicant contended that when he picked up his ticket on 25 June he was informed by the United Nations Travel Agency that the Executive Office had amended his Travel Authorization and canceled the portion of his trip to Moscow. The Applicant, nevertheless, on 27 June departed Headquarters on authorized home leave to Rome, traveling to Moscow, that portion of the trip having been paid for out of his own pocket. On his three-day stopover in Moscow, he met with government officials to discuss the participation of Soviet national experts in the United Nations programme of technical assistance. On 19 August, the Applicant submitted a report

      of his mission to the Under-Secretary-General, and on 11 September, he filed a claim for reimbursement for the portion of the ticket for which he paid (US$ 575.00) and daily subsistence allowance for three days in Moscow and Leningrad ($615.00), which was denied.

      The Applicant appealed this decision, claiming that he had acted in good faith. He was ultimately informed by the Assistant Secretary-General for Human Resources Management that his case had been re-examined in the light of the Joint Appeals Board report, but although it was regretted that the Applicant was not informed of the decision to cancel the official travel to Moscow as soon as that decision had been taken, the Secretary-General agreed with the conclusion reached by the majority of the Panel that the Applicant was on notice that the travel authorization to Moscow had been canceled.

      Upon consideration by the Tribunal, it noted staff rule 107.6 which states:

      “Before travel is undertaken it shall be authorized in writing. In exceptional cases, staff members may be authorized to travel on oral orders, but such oral authorization shall require written confirmation. A staff member shall be personally responsible for ascertaining that he or she has the proper authorization before commencing travel.”

      In the Tribunal’s view, this rule clearly established that the onus was on the Applicant to determine whether he was authorized to travel, even thought the Tribunal was also of the view that the Respondent used poor judgment when it left it to the Travel Agency to convey to the Applicant that his travel authorization had been changed. The Applicant had alleged that he never received a copy of the memorandum of 25 June amending the travel authorization, an allegation that was not disputed by the Respondent.

      The Tribunal was of the opinion that the Applicant had acted in good faith. He was acutely aware that this mission to the Soviet Union had been planned and canceled twice in the past at the last minute, and believing some administrative misunderstanding had occurred, he paid the travel costs in order to avoid another embarrassing cancellation. Nevertheless, the Applicant did have two days to verify with his supervisors whether the trip was indeed authorized; however, this omission in the Tribunal’s view did not detract from the Applicant’s good faith.

      As regards the Applicant’s claim for reimbursement of his travel expenses, on the basis of the general legal principle of the prohibition of unjust enrichment, the Tribunal was of the view that since the Administration benefited from the fruit of the Applicant’s work the Applicant was therefore entitled to be reimbursed for his expenses. The Tribunal noted that had the Respondent been steadfast in his assertion that the Applicant misrepresented his presence as being on official business and rejected the product of the Applicant’s undertaking in the Soviet Union, then it could have been argued that the Respondent did not gain from it.

      The Respondent was, therefore, ordered to pay to the Applicant the amount of $1,190.00, corresponding to his travel expenses.

   3. JUDGEMENT NO. 656 (21 JULY 1994): KREMER & GOURDON V. THE SECRETARY-GENERAL OF THE UNITED NATIONS5

      Claim...