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 INTERGOVERN-MENTAL ORGANIZATIONS

1. Decisions of the United Nations Administrative Tribunal2

   1. JUDGEMENT NO. 440 (17 MAY 1989): SHANKAR V.

      THE SECRETARY-GENERAL OF THE UNITED NATIONS3

      Rescission of the decision compensating, rather than reinstating, the staff member for his separation vitiated by lack of good faith and of due process — Commitment to renew appointment must be based on conclusive proof — Article 9 of Administrative Tribunal statute — Question of compensation — Confidential, adverse documents not shown to staff member must be removed from his official status file

      The Applicant had been employed as a File Clerk with the Asian and Pacific Centre for Transfer of Technology (APCTT) at Bangalore, India, an organ of the Economic and Social Commission for Asia and the Pacific (ESCAP), under a series of fixed-term contracts since 1 January 1983, receiving periodic within-grade salary increments until his separation on 31 December 1985.

      The Applicant appealed the non-renewal of his fixed-term contract and the Joint Appeals Board (JAB) found that the Applicant’s separation was vitiated by lack of good faith and lack of due process and recommended that he be reinstated in his post or in a position commensurate with his qualifications and experience, or in the event this could not be done he be granted compensation equivalent to one year net salary at the time of his separation. When the decision was taken to compensate the Applicant instead of reinstating him, he appealed to the Administrative Tribunal.

      As to the Applicant’s argument that all staff members had been told that the renewal of their fixed-term appointments depended on their performance and the financial situation of the Centre and that his performance had been good, the Tribunal noted that the Applicant had signed his fixed-term letter of appointment, wherein it was clearly spelled out that such an appointment carried no expectancy of renewal, and that the Tribunal had previously held that a legal expectancy of renewal would not be created by efficient or even by outstanding performance. Therefore, a valid claim to renewal must be based not on mere verbal assertions unsubstantiated by conclusive proof, but by a firm commitment to renewal.

      The Applicant had also argued that the decision not to renew his appointment was attributable to the faults of ESCAP and the Director of APCTT who had made false and malicious allegations about the Applicant’s performance. In this regard, the Tribunal agreed with the JAB finding that the non-renewal of the Applicant’s fixed-term appointment was vitiated by lack of due process,

      lack of good faith and procedural irregularities. As to the issue of reinstatement in such circumstances, the Tribunal, recalling paragraph 1 of article 9 of its statute, wherein the Secretary-General had expressly recognized the right of the Secretary-General to compensate the Applicant without further action being taken, concluded that the Secretary-General had exercised his valid discretionary power in this case.

      The Applicant had further contended that, if the Secretary-General wished to exercise the option given to him under article 9 of the Tribunal’s statute to order payment of compensation instead of reinstatement, he be compensated equivalent to his salary with all benefits from 1 January 1986 until the date on which he would retire, and to order payment of damages of $10,000 from ESCAP or APCTT to him.

      The Administrative Tribunal considered that the Applicant in his last three years of employment was offered a fixed-term appointment for three months which was successively extended for nine months and twice for one year. On that basis, if his contract had been renewed, it would in all likelihood have been renewed by a further one year. To presume, in the view of the Tribunal, an extension beyond that point would be a matter of mere speculation. Therefore, the Tribunal found that the amount of compensation paid by the Respondent was adequate, and, accordingly, the Tribunal made no additional award in that respect.

      The Applicant also had requested the removal of all those documents which were “fabricated and confidential” from his personal file. In this regard, the Tribunal concurred with the JAB finding that adverse material had been included in the Applicant’s official status file which had not been shown to him for comment or rebuttal in disregard of the decision of the Secretary-General and administrative instruction ST/AI/292 of 15 July 1982, and therefore should be removed from the official status files of the Applicant. All other pleas were rejected.

   2. JUDGEMENT NO. 441 (18 MAY 1989): SHAABAN V. THE SECRETARYGENERAL OF THE INTERNATIONAL CIVIL AVIATION ORGANIZATION4

      Denial by ICAO of reimbursement of income tax imposed by United States authorities — Entitlement governed by letter of appointment, ICAO Service Code and established administrative practice — Special circumstances do not establish an administrative practice or reflect unlawful discrimination — Effect of incorrect informal advice — Human rights complaints versus conditions of service governing contracts of employment

      The Applicant, a Lebanese national, worked at the International Civil Aviation Organization at its headquarters as a Projects Implementation Officer when, in order to obtain United States citizenship, he relocated his residence from Montreal, Canada, his duty station, where he was subject to Canadian taxation on his ICAO income, to Plattsburgh, New York, just below the Canadian border, where he became subject to United States and New York State income taxes on his ICAO income. On 2 January 1987, the Applicant requested reimbursement of income taxes imposed by United States authorities upon his relocation to the United States and subsequently was turned down. He challenged the decision of

      4 November 1987 of the Secretary-General of ICAO to accept the unanimous recommendation of the Advisory Joint Appeals Board (AJAB) that the Applicant’s appeal be rejected.

      In consideration of the question, the Tribunal noted that prior to 1983, ICAO staff members who were subject to United States income taxes were eligible for reimbursement under the employment conditions then in effect at ICAO. However, because of changes in United States tax laws, the United States had discontinued its reimbursement arrangement with ICAO and, on 26 September 1983, ICAO by a circular memorandum announced a policy with respect to reimbursement of United States income taxes paid by United States citizens employed by ICAO as technical assistance field staff. The Tribunal further noted that the Applicant had made inquiries about his eligibility for reimbursement of United States income taxes, and was told unofficially that the circular memorandum was applicable to him and that there was an established administrative practice at ICAO to reimburse the payment of United States income taxes regardless of whether the staff member was part of the technical assistance field staff or of the regular programme staff. Indeed, his initial request was approved and he received $3,000; however, shortly thereafter he was informed that the payment was made in error and that he would have to return the money.

      The Tribunal was of the view that the question of whether the Applicant was entitled to the tax reimbursement he sought from ICAO depended entirely on whether his employment contract or the ICAO Service Code provided for such reimbursement, or whether ICAO’s refusal represented an unjustified discriminatory departure from an established administrative practice. In agreement with the findings reached by the AJAB, the Tribunal concluded that the Applicant was not entitled to reimbursement of United States income taxes from ICAO.

      In this regard, the Administrative Tribunal observed that the Applicant’s entitlements were governed by his letter of appointment dated 11 April 1984, which made no reference to any reimbursement of national income taxes. Furthermore, although his appointment was subject to the provisions of the ICAO Service Code, the ICAO Staff Regulations and Rules, as amended, did not provide for reimbursement of the Applicant’s United States income taxes.

      The Applicant had argued that there was an established administrative practice of ICAO reimbursing staff United States income taxes, pointing to the 26 September circular memorandum and ICAO Field Service staff rule 3.14. However, the Tribunal considered that neither the circular memorandum nor the staff rule supported the Applicant’s position. The circular memorandum had applied to United States citizens who were members of the technical assistance field staff, whereas the Applicant was a Lebanese national who was a member of the ICAO regular programme staff. Similarly, staff rule 3.14 did not apply to the Applicant’s situation.

      The Administrative Tribunal observed that the only evidence of reimbursement of United States income taxes paid by regular programme staff members subsequent to 1982 failed to establish an administrative practice which would have supported a finding of unlawful discrimination in the Secretary-General’s refusal to reimburse the Applicant and had no application to the Applicant’s situation. Those instances involved three United States citizens who were employed on short-term appointments outside the United States, but not long enough to entitle them to a tax exemption under United States law, and the Secretary-General had determined that it was in the interest of the Organization to employ them on those terms. In the conclusion of the Tribunal, that the Secretary-General offered those individuals, because of special circumstances, conditions which

      would not normally have been available to permanent regular programme staff members did not show either an established administrative practice or unlawful discrimination...