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 Nationsx

   1. JUDGEMENT NO. 126 (13 MAY 1969):2 SALVINELLI V. UNITED NATIONS JOINT

      STAFF PENSION BOARD

      Application of the criterion of custody to determine to whom a children's benefit should be paid—Non-receivability of a plea contesting the legality of a decision by a domestic court certified as in order by the Ministry of Foreign Affairs of the country concerned

      In 1965 the applicant, a former staff member of FAO, who had been the recipient of a disability benefit since 1961, lodged with the FAO Staff Pension Committee a claim to children's benefit for her two minor sons, who, upon the death of their father in 1963, had been placed in the care of their uncle under a decree by the competent domestic court, reaffirmed by an order of 1966. The Committee decided, and confirmed after reconsideration, that the benefit was due effective from 1961 but that, in view of the condition of the applicant's health, it was to be paid to the legal guardian. The Standing Committee of the Joint Staff Pension Board, to which the matter was referred, came to the same decision. The applicant then requested the Tribunal to rescind the decision of the Standing Committee and to order the children's benefit due in respect of her two sons to be paid to her.

      The Tribunal rejected the application; it pointed out that the applicant's contention was unacceptable by reason of the order of 1966 reaffirming the decree of 1963 to the effect that the applicant's minor sons should remain in the care of their uncle. Nor could the applicant's plea that according to the definition of dependants relevant to internal administrative procedures "children of a female staff member are to be dependent upon her if the

      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 1969, 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 Organization, the Food and Agriculture Organization of the United Nations, the United Nations Educational, Scientific and Cultural Organization, the World Health Organization, the International Telecommunication Union, 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 tinder any contract or terms of appointment.

      - Mr. R. Venkataraman, President; the Lord Crook, Vice-President; Mr. Z. Rossides, Member.

      father or step-father either has no legal obligation or is unable to ensure their main and continuous support" avail against an order of court depriving the applicant of the custody of the children and placing them under the care of the legal guardian. Lastly, with regard to the validity of the order of 1966, the Tribunal noted that, according to a note verbale of 30 March 1967, addressed to FAO by the Ministry of Foreign Affairs of the country concerned, the order had been issued in accordance with the regulations in force; it ruled that the legality or validity of that order could not be raised before the Tribunal.

   2. JUDGEMENT NO. 127 (19 MAY 1969):3 BURDON V. UNITED NATIONS JOINT

      STAFF PENSION BOARD

      Appeal against a decision refusing to validate, for Pension Fund purposes a period of service completed by the person concerned prior to participation in the Joint Pension Fund— Competent jurisdiction in a dispute concerning the participation of a FAO staff member in the Fund, where the dispute relates mainly to the interpretation of the contract of the person concerned and of the regulations applicable to him.

      The applicant, who entered the service of FAO at the beginning of 1952 as a technical assistance expert under a one-year appointment, had his appointment extended several times. In 1957 the appointment was converted into a programme appointment and in 1967 the applicant received a permanent appointment. At the beginning of 1952 the employment of technical assistance experts was governed by an Administrative Memorandum which expressly excluded such personnel from participation in the Joint Staff Pension Fund. However, at the end of 1952 the Memorandum was superseded by two others which contained no provision relating to the Pension Fund. As of 1 January 1954 these two Memoranda were in turn superseded by sections 370 and 371 of the FAO Manual, which again contained no provisions concerning the Pension Fund. Effective 1 December 1956, however, a provision was inserted into those sections whereby it was contemplated that holders of programme appointments would become eligible for participation in the Fund from the effective date of such appointments. Under the regulation adopted shortly thereafter on the basis of that provision, the applicant became eligible in 1957 for participation in the Pension Fund. In 1967, he formally applied to the FAO Staff Pension Committee for validation for Pension Fund purposes of his peiiod of service from 1952 to 1957. The Committee noted that the time-limit provided by article III of the Joint Staff Pension Fund Regulations (one year, starting from the commencement of the participation of the person concerned) had not been observed, and, further, that the participation of EPTA experts in the Pension Fund had been specifically excluded, under certain conditions, by the provisions of the FAO Manual during the years in question. The applicant then submitted an appeal to the Joint Staff Pension Board, which was rejected on the grounds that he had not observed the time-limit provided in article III mentioned above. The Committee further noted that the appeal could not be admitted in any case, since the service performed between 1952 and 1957 was not service to which article III. 1 referred (service under a contract of less than a year or covering a period of less than a year).

      The applicant thereupon filed an application with the Tribunal, asking it in particular to rescind the decision of the Joint Staff Pension Board and to order FAO to pay him a nominal sum to acknowledge FAO's responsibility in having unjustly deprived him of his rights.

      The Tribunal rejected the application: it noted that the service performed by the applicant between 1952 and 1957 had been performed neither on a contract, basis for less

      3 Mr. R. Venkataraman, President; the Lord Crook, Vice-President; Mr. Z. Rossides, Member. 183

      than one year nor foi a period of service of less than one year, so that the applicant could not avail himself of article III of the Pension Fund Regulations.

      As to whether the applicant was entitled, from 1953, to enrolment in the Fund under the provisions of the FAO Manual and to validation of his prior service, and whether FAO, by failing to ensure this enrolment, had infringed the applicant's rights under his contract of employment and terms of appointment, the Tribunal stated that, in order to decide that question, it would be necessary to examine the contract of the staff member and the relevant legal provisions in force in FAO. There was nothing in the file to indicate that this question had been the subject of any administrative decision open to appeal. Moreover, even if there had been such a decision, the question would arise as to what jurisdiction would be competent. The Tribunal had stated in its Judgements Nos. 118 and 119: *

      "When, in a case involving participation of a FAO staff member in the Fund, the dispute relates mainly to the interpretation of his contract and of the FAO regulations and rules applicable to him, it would appear from aiticle XI of the Staff Regulations of FAO that the International Labour Organisation Administrative Tribunal would be the competent jurisdiction."

      Since the Tribunal had held that the applicant could not avail himself of the provisions of article III of the Pension Fund Regulations, it did not deem it necessary to rule on the question of time-limits.

   3. JUDGEMENT NO . 128 (22 MAY 1969):5 AL-ABED V. SECRETARY-GENERAL OF

      THE UNITED NATIONS

      An oral promise of employment not emanating from the authority compete/it to conclude the contract has no legal validity—Injury resulting from a decision not to renew the contract although made in exercise of contractual rights—Obligation to respect the principle of good faith in relations between the parties

      The applicant, who entered the service of the United Nations under a one-year appointment, had had two successive extensions of his appointment, the first until 4 August 1966 and the second until 4 August 1967. At a meeting on 12 January 1967, the Deputy Resident Representative is said to have offered him an extension of his contract until the end of that year. The applicant is said to have accepted that offer, and the arrangement was allegedly subsequently confirmed at a second meeting held on 20 March 1967. In the...