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

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

1. Decisions of the Administrative Tribunal of the United Nations l

   1. JUDGEMENT NO. 114 (23 APRIL 1968):2 KHEDERIAN V. SECRETARY-GENERAL OF

      THE UNITED NATIONS

      Appeal under article 17 of appendix D to the Staff Rules—Importance of the report oj the Medical Board

      The applicant, alleging a permanent disability attributable to the performance of official duties on behalf of the United Nations, had submitted a claim for compensation, which the Secretary-General had rejected on the recommendation of the Advisory Board on Compensation Claims. The applicant having filed an appeal against this decision under article 17 of appendix D of the Staff Rules, the Medical Board provided for in that article had adopted by a majority opinion a report the conclusions of which were favourable to the applicant. Nevertheless, the Advisory Board, pointing out that, in the Medical Board, votes had been divided and that the report of the Medical Board was inconclusive and ambiguous, had maintained its previous recommendation; the Secretary-General had also maintained his original decision.

      The Tribunal stressed in its Judgement that, so far as the medical aspects of an appeal under article 17 of appendix D to the Staff Rules were concerned, the report of the medical board was of crucial importance and that in the present case this report had been to all intents and purposes set aside by the Advisory Board. The Tribunal found that the recom-1 Under article 2 of its Statute, the Administiative 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 tei ms established by a special agreement to be made with each such agency by the Secretary-General of the United Nations. By the end of 1968, 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. Z. Rossides, Member; Mr. H. Groz Espiell, Alternate Member.

      mendation of the Advisory Board was made under misapprehension of the functioning of the Medical Board and of the purport of article 17 in providing for the appointment of a third medical practitioner selected by agreement between the medical practitioners appointed by the parties. The Tribunal, without deciding the merits of the case, ordered that the case be remanded for correction of the procedure in accordance with article 9, paragraph 2, of its Statute, and it awarded to the applicant as compensation a sum equivalent to three months of her net base salary for the loss caused to her by the procedural delay.

   2. JUDGEMENT NO . 115 (24 APRIL 1968):3 KIMPTON V. SECRETARY-GENERAL OF

      THE UNITED NATIONS

      Request for the rescinding of a decision rejecting an applicant for employment on medical grounds

      The applicant had passed a United Nations examination for English translators but was subsequently rejected for employment on medical grounds. He requested the Tribunal to rescind this decision,while the respondent requested the Tribunal to decide that it lacked competence.

      The Tribunal declared itself not competent to hear and pass judgement upon the application. It found that the applicant was neither a staff member nor a former staff member of the Secretariat of the United Nations, and that he was not in one of the other situations referred to in article 2, paragraph 2, of the Statute. The Tribunal also pointed out that there had never been at any time an offer of employment made by a competent authority and that the case was therefore different from the Camargo and Vasseur cases. The Tribunal found that, in the absence of statutory or regulatory provisions governing the steps preceding recruitment, it was clear that no right capable of being invoked before the Tribunal could have arisen for the benefit of the applicant.

   3. JUDGEMENT NO . 116 (24 APRIL 1968): 4 JOSEPHY V. SECRETARY-GENERAL OF THE

      UNITED NATIONS

      Request for the rescinding of a decision, described as a ''''correction" to an earlier decision, purporting to postpone the date of a salary increment as set by the original decision

      The applicant was to have received a salary increment on 1 September 1965. On 22 September 1965, this increment was withheld with effect from 1 September 1965 for insufficient punctuality. On 13 May 1966, the increment was reinstated as of 1 June 1966 and the date of the next salary increment was indicated as September 1966. On 3 June 1966, a "correction" postponed the date of the next salary increment from September 1966 to June 1967.

      The applicant requested the Tribunal to order the rescinding of the decision of 22 September 1965 and, as a corollary, the rescinding of the decision of 3 June 1966, or alternatively the rescinding of the decision of 3 June 1966 only.

      The Tribunal rejected the main plea. Although it regretted the procedural irregularities and, in particular, the fact that the contested decision was taken after 1 September 1965,

      3 Mme P. Bastid, President; the Lord Crook, Vice-President; Mr. H. Gros Espiell, Member, Mr. Z. Rossides, Alternate Member.

      4 Mme P. Bastid, President; Mr. H. Groz Espiell and Mr. F.T.P. Plimpton, Members. 168

      the Tribunal was of the opinion that these irregularities were not such as to affect the validity of the decision of 22 September 1965 which otherwise complied with the conditions of substance set forth in the Staff Regulations and Rules.

      The Tribunal decided in favour of the alternative plea. It pointed out that the decision of 3 June 1966 in effect deprived the applicant of eighteen months of salary increment instead of the nine months initially contemplated and that, inasmuch as the applicant's next salary increment date was properly fixed at September 1966 by the decision of 13 May 1966, the decision of 3 June 1966 described as a "correction" was without legal foundation.

   4. JUDGEMENT NO. 117 (26 APRIL 1968):5 VAN DER VALK V. UNITED NATIONS RELIEF AND WORKS AGENCY FOR PALESTINE REFUGEES IN THE NEAR EAST

      Termination of a temporary indefinite contract on the ground of abolition or conversion of post—Obligation to prefer the more senior staff in the case of abolition of post does not apply in the absence of specific provisions to that effect

      The applicant, whose temporary indefinite contract had been terminated on the basis of regulation 9.1 of the International Staff Regulations of UNRWA, under which the Com-missioner-General might terminate the appointment of a staff member if, in his opinion, such action would be in the interest of the Agency, requested the Tribunal to rescind this decision on the grounds that the abolition of this post and conversion thereof into an area post was unwarranted, that even if the post was abolished the applicant should have been retained in preference to staff members more junior to him in service, and that the contested decision was motivated by prejudice.

      The Tribunal rejected the application. It refused to substitute its judgement for that of the Administration in evaluating the merits of the abolition or the conversion of the appli-cant's post. As for the obligation to prefer the more senior staff in the case of abolition of post, the Tribunal said that it did not apply in the absence of specific provisions to that effect. The Tribunal acknowledged, on the other hand, that UNRWA had been under an obligation to seek to place the applicant in another appropriate post, but it considered that the Agency had properly discharged this obligation. Lastly, the Tribunal found that there was nothing on record to show that the abolition of the post and notice of termination of the applicant had been influenced by prejudice.

   5. JUDGEMENT NO. 118 (24 OCTOBER 1968): 6 VERMAAT V. UNITED NATIONS JOINT

      STAFF PENSION BOARD

      Plea by a technical assistance expert of FA O against a decision refusing to validate a period of service prior to his admission to the Joint Staff Pension Fund in 1958—Was the applicant entitled prior to 1958 to participate in the Fund 1

      The applicant, a technical assistance expert of FAO who had become a participant in the Pension Fund in 1958, requested the Tribunal to rescind a decision by the Standing Committee of the Joint Staff Pension Board refusing to validate his period of service prior

      5 The Lord Crook, Vice-President, presiding; Mr. R. Venkataraman, Vice-President; Mr. F.T.P. Plimpton, Member.

      6 Mme P. Bastid, President; the Lord Crook, Vice-President; Mr. L. Ignacio-Pinto, Member; Mi. 2. Rossides, Alternate Member.

      to 1958. He also maintained that he had been entitled to participate in the Pension Fund from the time when he joined FAO and that by not enrolling him FAO had failed to...