Chapter V. Decisions of administrative tribunals of the United Nations and related inter-governmental bodies

Chapter V

DECISIONS OF ADMINISTRATIVE TRIBUNALS OF THE UNITED NATIONS AND RELATED INTER-GOVERNMENTAL ORGANIZATIONS

1. Decisions of the Administrative Tribunal of the United Nations1

   1. JUDGEMENT NO . 98 (11 MARCH 1966) :2 GILLMAN V. SECRETARY-GENERAL OF THE UNITED

      NATIONS

      Termination of the employment of a staff member holding a permanent appointment, on the ground of unsatisfactory service—Staff member's right to a complete, fair and reasonable procedure—Application of article 9.2 of the Statute of the Tribunal

      The applicant requested the Tribunal to order the rescinding of the decision by which the Secretary-General had terminated her permanent appointment on the grounds of unsatisfactory service and record of attendance. The Tribunal noted that the contested decision had been taken on the basis of a recommendation by a working group of the Appointment and Promotion Board. It found that, as regards the appraisal of the applicant's performance, the report of the working group did not give an accurate account of the situation revealed by the periodic reports on the applicant, a situation confirmed by the evidence received by the Tribunal. As regards the finding by the working group that the applicant's record of attendance was unsatisfactory, the Tribunal observed that the group had not inquired whether part of the applicant's sick leave could have been caused by injuries sustained in a service-incurred accident. It considered, therefore, that one at least of the grounds for the termination was directly attributable to statements in the working group's report which failed to take into account all the factors in the case and, in particular, the circumstances of the accident in which the applicant had been injured. The Tribunal concluded that the applicant had been deprived of the complete, fair and reasonable procedure which must be carried out before the termination of a permanent appointment. On

      1 Under article 2 of its Statute, the Administrative Tribunal of the United Nations is competent to hear and pass judgement upon applications alleging non-observance of contracts of employment of staff members of the Secretariat of the United Nations or of the terms of appointment of such staff members. Article 14 of the Statute states that the competence of the Tribunal may be extended to any specialized agency upon the terms established by a special agreement to be made with each such agency by the Secretary-General of the United Nations. By the end of 1966, two agreements of general scope, dealing with the non-observance of contracts of employment and of terms of appointment, had been concluded, pursuant to the above provision, with two specialized agencies: the International Civil Aviation Organization; the Inter-Governmental Maritime Consultative Organization. In addition, agreements limited to applications alleging non-observance of the Regulations of the United Nations Joint Staff Pension Fund had been concluded with the International Labour Organisation, the Food and Agriculture Organization of the United Nations, the United Nations Educational, Scientific and Cultural Organization, the World Health Organization, the International Civil Aviation Organization, the World Meteorological Organization and the International Atomic Energy Agency.

      The Tribunal is open not only to any staff member, even after his employment has ceased, but also to any person who has succeeded to the staff member's rights on his death, or who can show that he is entitled to rights under any contract or terms of appointment.

      2 Mme P. Bastid, President; the Lord Crook, Vice-President; Mr. S. Petren. 213

      the basis of a request made by the respondent under article 9.2 of the Statute, the Tribunal remanded the case for correction of procedure and ordered that the applicant be paid as compensation an amount equivalent to three months' net base salary for the prejudice caused by the procedural delay.

   2. JUDGEMENT NO. 99 (16 MARCH 1966) :3 MR. A. v. SECRETARY-GENERAL OF THE UNITED

      NATIONS

      Claim for compensation for damage suffered by a staff member as a result of measures taken by the Medical Director and other officials—The conditions under which sick leave can be imposed constitute an element of the contractual relationship between the employee and employer—Respondent's right to impose sick leave upon a staff member but not to order him to undergo any special medical treatment

      In September 1961 the applicant, who held at the time a fixed-term appointment with the Special Fund, was ordered by the United Nations Medical Director to take sick leave and instructed not to return to the office. When, on 5 October 1961, he disregarded that instruction and attempted to resume his duties with the Fund, he was committed to a private mental institution upon a petition signed by the Medical Director under the provisions of the applicable municipal law. Two weeks later, the applicant was repatriated to his home country. The applicant contended that the action taken by the Medical Director violated United Nations Staff Regulations and Rules and requested compensation for the injury sustained.

      The Tribunal first considered a plea by the respondent that the application did not fall within its competence on the ground, inter alia, that the allegations contained therein were allegations of wrongful acts, not of violations of terms of appointment or contract of employment. The Tribunal observed that conditions under which sick leave could be granted to or imposed upon an employee necessarily constituted an element of the contractual relationship between the employee and his employer. Allegations that, in the case of a staff member of the United Nations, sick leave had been either refused or imposed and enforced in a wrongful way, including commitment to an institution for the mentally ill, implied that the staff member's terms of appointment had not been observed. The Tribunal decided, therefore, that the application fell within its competence as defined in article 2.1 of the Statute.

      As regards substance, the Tribunal observed that, while the Staff Regulations and Rules should be interpreted as authorizing directed sick leave under certain conditions, they did not empower the Administration to order a staff member to undergo any special medical treatment. Furthermore, nothing in the applicant's behaviour had indicated a dangerous or violent mood calling for drastic measures. The Tribunal found, therefore, that the commitment of the applicant to a mental institution had violated his contractual rights. It decided, however, that such was not the case with his subsequent repatriation since the evidence showed that he had agreed to that measure.

      As regards the prejudicial effect of the applicant's commitment, the Tribunal observed that any decrease in the applicant's possibilities of securing new employment had been caused not by the commitment but by the decision not to extend his appointment with the United...