Inmunidad de jurisdicción en los organismos internacionales

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AT/DEC/634-687

JUDGEMENTS OF THE

UNITED NATIONS ADMINISTRATIVE TRIBUNAL Numbers 634 to 687 1994

UNITED NATIONS New York 2001

NOTE Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a symbol indicates a reference to a United Nations document.

AT/DEC/634 to 687

UNITED NATIONS PUBLICATION Sales No. E.00.X.l

ISBN 92-1-145019-5

TABLE OF CONTENTS Judgement No.

634 635 636 637 638 639 640 641 642 643 644 645 646 647 648

649 650

651

652

Page

Horlacher v. the Secretary-General of the United Nations Davidson v. the United Nations Joint StafFPension Board Noll-Wagenfeld v. the Secretary-General of the United Nations Chhatwal v. the Secretary-General of the United Nations Treggi v. the Secretary-General of the United Nations .. Leung-Ki v. the Secretary-General of the United Nations Mourad v. the Secretary-General of the United Nations .. Farid v. the Secretary-General of the United Nations ... Sow, Kane, Diatta, Dienne and Camara v. the Secretary-General of the United Nations Al-Kishali v. the Secretary-General of the United Nations Thabet v. the Secretary-General of the United Nations .. Fussimanya-Reyna v. the Secretary-General of the United Nations Soltes v. the Secretary-General of the United Nations.. . Pereyra v. the Secretary-General of the United Nations .. Sa'adiyeh v. the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East Shehadeh v. the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East Bakr et al. v. the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East El-Said v. the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East Su'oud v. the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East

iii

1 12 18 26 34 44 52 59 68 81 87 92 101 106

Ill 119

126

138 143

Judgement No.

653

654

655

656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679

Page

Hayek v. the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East Hourani v. the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East Habash v. the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East Kremer and Gourdon v. the Secretary-General of the United Nations Araim v. the Secretary-General of the United Nations .. Araim v. the Secretary-General of the United Nations .. Al-Atraqchi v. the Secretary-General of the United Nations Al-Atraqchi v. the Secretary-General of the United Nations Al-Atraqchi v. the Secretary-General of the United Nations Potookian v. the Secretary-General of the United Nations Manirakiza v. the Secretary-General of the United Nations Treggi v. the Secretary-General of the United Nations .. Gonzalez de German, Marais, Purcell and Couderc v. the United Nations Joint Staff Pension Board Vorobiev v. the Secretary-General of the United Nations Essaiedv. the Secretary-General of the United Nations .. Coulibaly Sy v. the Secretary-General of the United Nations Khan v. the Secretary-General of the United Nations ... Abdala et al. v. the Secretary-General of the United Nations. Grinblat v. the Secretary-General of the United Nations Burtis v. the Secretary-General of the United Nations... Hossain v. the Secretary-General of the United Nations Gonda v. the Secretary-General of the United Nations .. Araim v. the Secretary-General of the United Nations .. Al-Atraqchi v. the Secretary-General of the United Nations Daure v. the Secretary-General of the United Nations... Lukas v. the Secretary-General of the United Nations... Fagan v. the Secretary-General of the United Nations...

iv

149

155

162 167 182 189 196 204 208 213 220 230 235 243 257 267 276 281 292 304 308 319 330 335 344 349 360

Judgement No.

680 681

682

683

684

685 686 687

Page

Gulati v. the Secretary-General of the United Nations... Maqari v. the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East Dabit v. the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East Khalil v. the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East Abdul Rahim v. the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East Loguinov v. the Secretary-General of the United Nations Rebizov v. the Secretary-General of the United Nations.. Cure v. the Secretary-General of the United Nations. ...

380

387

395

403

409 415 420 428

APPENDIX Text of the main statutory provisions and rules referred to in Judgements Nos. 634 to 687 438

BIBLIOGRAPHY Selected bibliography of books and articles on international civil service published in 1994 451

INDEX TO JUDGEMENTS Nos. 634 to 687

V

453

COMPOSITION OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL FROM 1 JANUARY TO 31 DECEMBER 1994

President: Mr. Samar Sen First Vice-President: Mr. Jerome Ackerman Second Vice-President: Mr. Luis de Posadas Montero Members: Mr. Hubert Thierry Mr. Mikuin Leliel Balanda Mr. Francis Spain Mr. Mayer Gabay

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UNITED NATIONS ADMINISTRATIVE TRIBUNAL

Judgement No. 634 (Original: English) Case No. 685: Horlacher

Against: The Secretary-General of the United Nations

Application of a former staff member of the United Nations for an order of reimbursement of the United States income tax paid by the Applicant on the lump sum benefit received from the Pension Fund, for interest on the amount to be reimbursed and for costs. The Joint Appeals Board recommended reimbursement of the income tax on the entire amount of the lump sum.—Recommendation rejected; confirmation of the original decision to reimburse on the pro-rated part of the lump sum pertaining to the Applicant's firstperiod of service. The Applicant was a staff member of the United Nations from I December 1974 to 31 May 1976 and rejoined the Organization on 21 April 1981 and served until his retirement on 31 January 1992.—On 17 December 1979 the General Assembly adopted resolution 34/165 in which it decided that staff members appointed on or after I January 1980 will not be entitled to income tax reimbursement on the lump sum benefit; however, it maintained this entitlementfor staff members serving with the United Nations prior to 1 January 1980.—Applicant s contention that he had an acquired right to this reimbursement on the full lump sum received by virtue of his service with the United Nations from 1974 to 1976, i.e. before 1 January 1980.—The Tribunal considers that the language of resolution 34/165 is unclear and examines its background and purpose to assist in determining its meaning.—Tribunal's jurisprudence on acquired rights as embodied in Judgement No. 237 (Powell).—Having examined the origin of resolution 34/165 the Tribunal finds that the primary and overriding focus of the General Assembly was on discontinuance of tax reimbursement, while preserving this entitlement for those serving on the date of entry into force of the new regulation.—However, there is nothing to suggest that this concern related to individuals who had been serving the United Nations at some time in the past.—Judgements No. 320 (Mills) and No. 373 (Saddler) are consistent with the decision in the case of the Applicant who was reimbursed the income tax on that portion of the lump sum which related to his service between 1974 and 1976. Application rejected.

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Administrative Tribunal of the United Nations

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, Vice-President, presiding; Mr. Mikuin Leliel Balanda; Mr. Mayer Gabay; Whereas, on 14 August 1992, David E. Horlacher, a former staff member of the United Nations, filed an application requesting the Tribunal, inter alia: '' (a) To rescindthe decision of the Secretary-General... dated 26 May 1992, rejecting the Applicant's request for reimbursement of income taxes imposed by authorities of the United States that will be levied on the lump sum withdrawal benefit received from the United Nations Joint Staff Pension Fund; (b) To order the Secretary-General to reimburse the Applicant for payment of the income taxes actually paid on the lump sum withdrawal from the United Nations Joint Staff Pension Fund...; (c) To order the Secretary-General to reimburse the Applicant for all fees, costs and disbursements in the preparation and presentation of the case ...; (d) To order the Secretary-General to reimburse the Applicant for interest on the amount to be reimbursed ...; (e) To fix the appropriate amount of compensation payable to the Applicant for the injury sustained by him in case the Secretary-General should decide in the interest of the United Nations that the Applicant should be compensated without further action being taken in this case." Whereas the Respondent filed his answer on 31 August 1993; Whereas the Applicant filed written observations on 20 December 1993; Whereas the facts in the case are as follows: The Applicant, a national of the United States of America, entered the service of the United Nations on 1 December 1974, on a three-month short term appointment at the L-4, step VI level, under the 200 Series of the Staff Rules. The appointment was extended for an additional fifteen months, through 31 May 1976, making the Applicant a participant in the United Nations Joint Staff Pension Fund (the Pension Fund). The Applicant separated from the service of the United Nations on 31 May 1976. Between 31 May 1976 and 30 September 1979, the Applicant was a consultant to the United Nations and as such, was not entitled to participation in the Pension Fund. On 21 April 1980, the Applicant received a two-year fixed term appointment as a staff member at the P-5, step 1 level, thereby again becom-

Judgement No. 634

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ing a participant in the Pension Fund. He thereupon exercised his right to restore his prior contributory service from 1 March 1975 through 31 May 1976, in accordance with the provisions of article 24 of the Regulations of the Pension Fund, then in force. The Applicant's appointment was extended, successively, through 20 April 1987, 31 August 1991 and 31 January 1992, when he separated from the Organization. The General Assembly, in its resolution 34/165, decided "that any staff member joining the United Nations Secretariat on or after 1 January 1980 shall not be entitled to receive reimbursement from the Tax Equalization Fund or otherwise for national income taxes paid on lump sum pension payments received from the United Nations Joint Staff Pension Fund; this decision will not affect staff members serving with the United Nations prior to 1 January 1980." In a memorandum dated 29 May 1990, the Applicant asked for a ruling from the Office of Programme Planning, Budget and Finance on whether he was eligible for reimbursement of United States income taxes in respect of any lump-sum pension payment he might receive upon retirement from the United Nations. The Applicant referred to the Guide to National Taxation of UNJSPF Benefits with Special Reference to the United States Tax. On 20 May 1991, the Chief, Income Tax Sub-Unit, Accounts Division, transmitted to the Applicant a copy of a memorandum dated 26 April 1991, from the General Legal Division, Office of Legal Affairs, advising that the Applicant was "not eligible to be reimbursed U.S. income taxes paid in respect of any lump sum payment he might receive from the Pension Fund" on the ground that when the Applicant was appointed on 21 April 1980, he was not reinstated but was given a "new" appointment within the meaning of staff rule 104.3(a). The terms of the Applicant's "new" appointment governed the question of his eligibility for reimbursement of taxes paid in respect of his lump-sum retirement benefit. Under the terms of the Applicant's new appointment, income taxes paid by him on the lump-sum retirement benefit could no longer be reimbursed, as the General Assembly, in its resolution 34/165, had prohibited such reimbursement to any staff member who joined the Organization after 1 January 1980. On 14 June 1991, the Applicant requested the Secretary-General to review the decision and on 13 August 1991, he lodged an appeal with the Joint Appeals Board (JAB). In a memorandum dated 20 November 1991, the Representative of the Secretary-General informed the Secretary of the JAB that on the basis of a memorandum of 13 August 1991, from the Director of the General Legal Division, the Organization was prepared "to reimburse the appel-

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Administrative Tribunal of the United Nations

lant for taxes paid on the pro-rated lump sum portion of his pension benefits as it pertains to his service with the United Nations prior to 1 January 1980", but not for the portion attributed to his employment after 1 January 1980. On 21 November 1991, the Secretary of the JAB informed the Applicant of that decision. On 28 January 1992, the Applicant lodged an appeal with the JAB. The JAB adopted its report on 11 February 1992. Its considerations and recommendation read, in part, as follows: "Considerations 12. The Panel noted that... the heart of the matter before it (...) is the application of the paragraph in Part III of General Assembly resolution 34/165 ( . . . ) . . . Having carefully examined the resolution, the Panel acknowledged that its text was ambiguous. 13. ... 14. Although the Panel had agreed from the outset that it should base its decision on its understanding of the text of the resolution, and not on a reading (or interpretation) of what the drafters had intended to say, it did explore the avenue proposed in the memorandum of 13 August 1991, from the Director, General Legal Division, of legislative history and intent. .. . The Panel noted that if it was the intent of the General Assembly to end reimbursement for staff members appointed after 1 January 1980, that was accomplished by the first clause of part III of the resolution. Given the legislative history which included notably the various Tribunal judgements dealing with acquired rights, there was no need to specify that those appointed prior to 1 January 1980 and in continuous service at and after that date maintained their entitlement. If the second clause had any operative content, it was precisely with respect to such staff members as Appellant. 15. Finally, it considered the submission of Respondent (...) that Appellant is not entitled to reimbursement because the cited General Assembly resolution is 'part of his terms of employment.' Clearly, the second clause of part III of the resolution is just as much part of his terms of employment as is the first. And if the second clause applies to Appellant, then the first is immaterial. 16. The Panel concludes, therefore, that Appellant, who was serving with the United Nations prior to 1 January 1980, is entitled to receive reimbursement for national income taxes paid on any lump sum payment he may receive from the United Nations Joint StaffPension Fund. In arriving at this conclusion, the Panel was also guided by the principle that, as the drafter of any text is responsible

Judgement No. 634

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for its clarity, any ambiguity must be interpreted in favour of the other party. Recommenhdation 17. The Panel recommends that the Secretary-General confirm that Appellant is entitled to receive reimbursement for national income taxes paid on anhy lump sum payment he may receive fro the United Nations Joint Staff Pension Fund." On 26 May 1992, the Assistant Secretary-General for Human Resources Management transmitted to the Applicant a copy of the JAB report and informed him as follows: "The Secretary-General has examined your case in the light of the Board's report. He has taken note of the Board's conclusion that you are entitled to receive reimbursement of national income taxes paid on any lump sum payment you may receive from the United Nations Joint Staff Pension Fund. However, bearing in mind that: (a) General Assembly resolution 34/165 of 17 December 1979, decided that any staff member joining the United Nations Secretariat on or after 1 January 1980, shall not be entitled to receive reimbursement from the Tax Equalization Fund or otherwise for national income taxes paid on lump sum pension payments received from the United Nations Joint Staff Pension Fund, and that this decision will not affect staff members serving with the United Nations prior to 1 January 1980; (b) After separating from service on 31 May 1976, you received a second appointment on 21 April 1980; (c) Your second appointment was a new appointment within the meaning of staff rule 104.3(a), its terms being fully applicable without regard to any period of former service; (d) It would be an unwarranted reading of the resolution to interpret it as preserving for all time in the future the right to reimbursement of income taxes on the entire amount of lump sum pension payments when the right to a substantial part of those payments did not exist before 1 January 1980, the Secretary-General cannot accept the recommendation made by the Board. He has decided that you should receive reimbursement for income taxes paid on the pro-rated lump sum portion of your pension benefits as it pertained to your service prior to 1 January 1980, but not for the portion pertaining to your service after 1 January 1980." On 14 August 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are:

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Administrative Tribunal of the United Nations

1. The Applicant acquired the right to be exempt from the first clause of General Assembly resolution 34/165, Part III, by virtue of his 18 months of service, from 1 December 1974 through 31 May 1976. 2. The Applicant had a legitimate expectation to reimbursement of national income taxes on his lump-sum retirement benefit. 3. As the Applicant had acquired the right to tax reimbursement, the Respondent is obliged to reimburse him for the national income taxes on his entire lump-sum retirement benefit, and not just on that portion of the benefit which is attributable to his service prior to 1 January 1980. Whereas the Respondent's principal contentions are: 1. Under the express wording of General Assembly resolution 34/165, Part III, the Applicant is not entitled to reimbursement for national income taxes payable on that portion of his lump-sum retirement benefit attributable to his service performed under an appointment he received after 1 January 1980. 2. The history of the enactment of resolution 34/165 clearly shows that the General Assembly intended to exempt from the prohibition on reimbursement of national income taxes only those staff members who had been in service prior to 1 January 1980, and remained so on that date. 3. The Applicant is entitled to reimbursement only for national income taxes for the portion of his lump-sum pension benefit attributable to his service until 31 May 1976. The Administrative Tribunal has found no difficulty in ordering the pro-rating of such tax reimbursement in prior cases. The Tribunal, having deliberated from 23 June to 6 July 1994, now pronounces the following judgement: I. The Applicant seeks rescission of a decision by the Respondent dated 26 May 1992, rejecting the Applicant's request for reimbursement of income taxes imposed by the United States Government on the lump sum withdrawal benefit from the United Nations Joint Staff Pension Fund (the Pension Fund). The Tribunal is also asked to order the Respondent to reimburse the Applicant for those taxes actually paid by him, together with interest and costs. The decision appealed awarded the Applicant reimbursement only on the portion of such taxes paid on the lump sum withdrawal benefit allocable to service rendered prior to 1 January 1980. The basis for the decision is the Respondent's interpretation of General Assembly resolution 34/165 of 17 December 1979, which provides that: "... any staff member joining the United Nations Secretariat on or after 1 January 1980 shall not be entitled to receive reimbursement from the Tax Equalization Fund or otherwise for national income taxes paid on lump sum pension payments received from the United

Judgement No. 634

7

Nations Joint Staff Pension Fund; this decision will not affect staff members serving with the United Nations prior to 1 January 1980." II. The Applicant had been a staff member of the Organization from 1 December 1974 until 31 May 1976, when he separated from service. He participated in the Pension Fund from 1 March 1975 until his separation. He later rejoined the Organization on 21 April 1980 and served for approximately 11 years until his retirement. He had restored his prior 1974-76 service under article 24 of the Pension Fund Regulations. Under staff rule 104.3(a), his 1980 appointment was not a reinstatement, but a new appointment. III. The Applicant contends that, regardless of his having been newly appointed after 1 January 1980, the mere fact that he had been in the service of the Organization a few years prior to that date, entitles him to full reimbursement because staff members serving with the Organization prior to 1 January 1980 were, pursuant to the terms of the General Assembly resolution, to be unaffected by it. The Respondent disputes this interpretation. Thus, the issue before the Tribunal involves a determination of the meaning of the resolution. IV. The Tribunal considers that the language of the last clause of the resolution, relied upon by the Applicant, is unclear. It might be construed either, (i) as providing for total or partial reimbursement to staff members in the service of the Organization prior to 1 January 1980 and continuing in its service thereafter; or (ii) as providing for total or partial reimbursement to staff members who were in the service of the Organization at any time prior to 1 January 1980, regardless of when or for how long and, who rejoined the Organization on or after 1 January 1980. Given the ambiguity in the pertinent language of the resolution, the Tribunal will examine its background and purpose to assist it in determining its intended meaning. (Cf. Judgement No. 437, Ahmed (1988).) V. The Applicant advances what he describes as three major contentions in support of his claim to entitlement to reimbursement for all United States income taxes paid by him on the lump sum pension benefit he received from the Pension Fund. His first contention is that, by entering the service of the Organization on 1 December 1974, he acquired the right to be exempt from the first clause of General Assembly resolution 34/165. His second contention is that, having acquired the right to be exempt from the first clause, he had a legitimate expectation of tax reimbursement. His third major contention is that, by his having acquired the above-mentioned right and the above-mentioned legitimate expectation, the Organization, in turn, became obliged to reimburse the full amount of the income taxes following his reemployment by the Organization and the restoration of his prior contributory service. His contentions are variously based on his letter of appointment, General Assembly resolution

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Administrative Tribunal of the United Nations

34/165, Judgement No. 320, Mills (1983), Judgement No. 373, Saddler (1986), Judgement No. 237, Powell (1979), a 1974 staff information circular, a 1979 Secretary-General's Bulletin, and article 28 of the Pension Fund Regulations. VI. With respect to the Applicant's first contention, there is no doubt that, when he came into the service of the Organization in 1974, his letter of appointment and the applicable Staff Regulations and Rules provided him a contractual entitlement to reimbursement of income taxes on lump sum withdrawal of pension benefits. That this provision of the Staff Regulations and the Staff Rules was lawful, was settled by Judgement No. 237, Powell (1979). However, that judgement also pointed out in paragraph XVI that: " 'Respect for acquired rights also means that the benefits and advantages accruing to a staff member for services rendered before the entry into force of an amendment cannot be prejudiced. An amendment cannot have an adverse retroactive effect in relation to a staff member, but nothing prevents an amendment to the Staff Rules where the effects of such amendment apply only to benefits and advantages accruing through service after the adoption of such amendment (Judgement No. 82, Puvrez).' " VII. It follows from this that an amendment of the applicable Staff Regulations and Staff Rules which abolished the right to reimbursement would be permissible with regard to pension benefits resulting from service after such an amendment, but could not be applied retroactively with respect to pension benefits resulting from service prior to the amendment. Since the decision in this case does not deprive the Applicant of tax reimbursement with respect to the lump sum benefit allocable to service rendered prior to the change in the tax reimbursement system mandated by the General Assembly with effect from 1 January 1980, principles relating to acquired rights are not dispositive in this case. Nor is it material whether, as he contends, the Applicant had an expectation during the 1974-1976 period or later with regard to the extent to which income taxes on a lump sum pension benefit would be reimbursable to him by the Organization. What is material is the effect of General Assembly resolution 34/165 on this case. VIII. By way of background, the Powell case supra, in which the question of the legality of reimbursement by the Organization of income taxes levied on lump sum pension benefits was before the Tribunal, arose because in 1978, the United States, in various communications to the Organization, challenged the validity of that practice. The Office of Legal Affairs agreed with the position of the United States and so advised the Secretary-General, who suspended reimbursement, pending a determination by the Tribunal. In the Powell case, the issue was presented to the

Judgement No. 634

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Tribunal and it rejected the various arguments put forth by the Respondent and the United States (an amicus curiae). The Tribunal held that, under the regulatory structure existing prior to the suspension, such tax reimbursement was lawful. That was the central issue before the Tribunal. IX. The Tribunal's decision in Powell led to efforts by the United States, supported by others in the General Assembly, to obtain corrective legislation to prevent future reimbursement of such taxes by the Organization. It appears that when the resolution proposed to achieve this purpose was under consideration by the Fifth Committee in November 1979, the effective date for the change being contemplated was 1 January 1980. There was concern, however, about the situation of staff members in the service of the Organization. This was voiced by both the representative of the Federal Republic of Germany, which had introduced the proposed resolution, and by the Under-Secretary General for Administration, Finance and Management. The former spoke in terms of protecting acquired rights as the reason for the last clause of the proposed resolution. The latter spoke of protecting the interests of staff members as of the date of the implementation of the new arrangements in terms of staff "currently on board." (See, Summary Record of the 60th Meeting, Fifth Committee, 27 November 1979, paras. 61 and 70.) X. Neither statement provides a definitive explanation of the precise intent of the General Assembly regarding the meaning of the second clause. The isolated comment of the representative of the Federal Republic of Germany regarding acquired rights, viewed in the light of what was said on that subject by the Tribunal in Powell (a decision that was plainly in the forefront of the consideration being given to the proposed resolution), would seem to suggest a more restrictive interpretation of the second clause than is compelled by its language. Such a narrow interpretation would also appear to be inconsistent with the intention reflected by the comments of the Under-Secretary General for Administration, Finance and Management. Accordingly, neither the statements referred to above nor the language of the resolution persuade the Tribunal that the General Assembly's intention was to deal with acquired rights solely as described in Powell, para. XVI, supra. XL The Applicant asserts that the resolution is clear in that it deals with only two classes of staff members: those who joined the Organization after 1 January 1980, without any prior service and those who also joined the Organization after 1 January 1980, but who had service performed prior to that date. According to the Applicant, the latter are entirely exempt from the prohibition against reimbursement of taxes set forth in the first clause of the resolution. The Tribunal is unable to accept this simplistic approach since it does not fairly take into account the main objective of the General Assembly. The Tribunal finds that the primary

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Administrative Tribunal of the United Nations

and overriding focus of the General Assembly was on discontinuance of tax reimbursement. The persons to be adversely affected by this discontinuance were all who joined the staff on or after 1 January 1980. But there was obviously concern about providing a degree of protection for persons who were serving staff members on that date. Nothing before the Tribunal suggests that this concern related to individuals who were not then serving staff members of the Organization, but who had at some time in the past, whether briefly or not, been staff members, or that there was any reason for such a concern. The Tribunal does not accept the extraordinary proposition that the General Assembly, by the second clause of the resolution, wished to confer a potentially large windfall benefit on anyone appointed after 1 January 1980 who, although not in service at the time the resolution took effect, had served, however briefly, at any time in the past. In order to ascribe such an unusual intent to the General Assembly, the Tribunal would have to find that there was no other interpretation more in harmony with the dominant theme of ending tax reimbursement after 1 January 1980, which underlay the resolution. The Tribunal is unable to make such a finding. XII. An entirely reasonable interpretation of the second clause of the resolution is possible which is in keeping with the General Assembly's purpose of discontinuing tax reimbursement and at the same time protecting staff members who then had a lively interest in the issue, i.e., those serving when the resolution became effective on 1 January 1980, and who continued to serve thereafter. In the Tribunal's view, the General Assembly wished to preserve tax reimbursement for those staff members both with respect to service before and after 1 January 1980. Without the protection intended by the second clause of the resolution, questions might have been raised concerning such a staff member's eligibility for tax reimbursement with respect to lump sum benefits allocable to service after 1 January 1980. It is understandable that the General Assembly might wish to continue the entitlement of such staff members to tax reimbursement. Since the Applicant was not within this category, the Tribunal is not called upon to address, in this case, the effect of the resolution on any staff member in the protected category who separated after 1 January 1980, but at a later date rejoined the Organization. XIII. As construed above, the resolution implements the General Assembly's objective regarding new appointments after 1 January 1980, while at the same time generously protecting the expectations of staff members serving at the time the resolution became effective and continuing to serve thereafter. XIV. The Applicant cites the decisions of the Tribunal in the Mills and Saddler cases as supporting his position. The Tribunal does not agree. In Saddler, the Applicant had not been in the service of the United

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Nations on 1 January 1980. He separated on 15 July 1978. There was no issue in that case as to the applicability of General Assembly resolution 34/165, since he did not rejoin the Organization. Instead, in 1981, he entered the service of one of the specialized agencies, and he was not governed by United Nations Staff Regulations and Rules. In that case, the Tribunal recognized the propriety of reimbursement to the Applicant with regard to the portion of the taxes paid by him on his lump sum benefit which was allocable to his service with the United Nations prior to 1980. In the present case, the Respondent's decision provides for similar tax reimbursement to the Applicant. It is therefore consistent with Saddler. XV. Similarly in Mills, the Applicant had served in the United Nations from 1946 until 1979, when he transferred to a specialized agency where he was employed until his retirement in 1981. Thus, as in Saddler, the Applicant in Mills had not been in the service of the United Nations on 1 January 1980 and did not rejoin the UN after that time. General Assembly resolution 34/165 therefore had no bearing on that case either. In Mills, the Tribunal concluded that the Applicant was entitled to tax reimbursement with respect to the portion of his lump sum pension payment allocable to his period of service with the United Nations. That, too, is consistent with the Respondent's decision in the present case. The Applicant here is being reimbursed for taxes on the portion of his lump sum pension payment that is allocable to his service with the United Nations prior to 1 January 1980, and that is all that he is entitled to. For him to receive a greater tax reimbursement would unjustifiably distort the purpose of the General Assembly in adopting resolution 34/165. XVI. For the foregoing reasons, the application is rejected. (Signatures) Jerome ACKERMAN

Vice-President, presiding Mayer GABAY

Member Geneva, 6 July 1994

Mikuin Leliel BALANDA

Member R. Maria VlCIEN-MlLBURN

Executive Secretary

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Administrative Tribunal of the United Nations

Judgement No. 635 (Original: English) Case No. 701: Davidson

Against:

The United Nations Joint Staff Pension Board

Application of a former staff member of the International Labour Office (ILO) and participant in the United Nations Joint Staff Pension Fund for award of a disability benefit.—Request for costs. The Standing Committee of the United Nations Joint Staff Pension Board upheld the decision of the ILO Pension Committee, based on the findings of a Medical Board, not to award to the Applicant a disability benefit. The Applicant separated from the ILO on the basis of an agreed termination, while applying for a disability benefit.—The Medical Board concluded by a majority that the Applicant 's health did not incapacitate her on a long-term basis for further service.—Such is the criterion for the award of a disability benefit and it does not encompass partial disability.—The Tribunal has consistently held that it will not attempt to substitute itsjudgement on medical matters for a properly rendered judgement of a medical board.—In particular, in the delicate field of psychological ailments the Tribunal would be reluctant to overturn a reasonable judgement of the Standing Committee based on a medical board's conclusions.—The Tribunal finds that the procedural flaws in the Standing Committee s determination were insignificant and had no prejudicial effect.—The Applicant's medical history was known to the Joint Medical Service in Geneva which did not think that she was incapacitatedfor further service; her termination was not decided on this ground and the Medical Board reached its conclusion after having examined her. Application rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, Vice-President, presiding; Mr. Mikuin Leliel Balanda; Mr. Mayer Gabay; Whereas, on 21 October 1992, Gabrielle Elizabeth Davidson, a participant in the United Nations Joint Staff Pension Fund, hereinafter referred to as "the Pension Fund", filed an application requesting from the Tribunal: (a) The setting aside of the decision of the Standing Committee of the Pension Board of 2 July 1992,...; (b) The award of a disability pension pursuant to article 33(a) of the Regulations of the Pension Fund; (c) The award of costs of an amount of four thousand Swiss francs."

Judgement No. 635

13

Whereas the Respondent filed his answer on 28 May 1993; Whereas the Applicant filed written observations on 21 July 1993; Whereas the facts in the case are as follows: The Applicant, a former staff member of the International Labour Office (ILO), has been a participant in the Pension Fund from 1 April 1973. On 5 July 1989, the ILO Pension Committee considered the award of a disability benefit to the Applicant, under article 33 of the Pension Fund Regulations, and decided she was not entitled to it. On 20 September 1989, the Applicant requested the ILO Pension Committee to review its decision. A Medical Board was established, under Rule K.5 of Section K of the Administrative Rules of the Pension Fund, to assist the ILO Pension Committee in the re-consideration of the Applicant's case. While the request was pending, the Applicant, on 16 October 1989, submitted to the Pension Fund instructions for the payment of an early retirement benefit. The Applicant has been the recipient of such a benefit since 1 October 1989. On 30 September 1989, the Applicant separated from the service of ILO, upon the agreed termination of her appointment, under article 11.16 of the ILO Staff Regulations. On 16 November 1990, the ILO Pension Committee, on the basis of the Medical Board's report, unanimously confirmed its earlier decision not to award a disability benefit to the Applicant. On 17 December 1990, the Secretary of the ILO Pension Committee informed the Applicant of the decision. On 30 July 1991, the Applicant lodged an appeal with the Standing Committee of the United Nations Joint Staff Pension Board (UNJSPB) (the Standing Committee). At the request of the UNJSPB's Secretary, on 26 October 1991, the Applicant provided a detailed explanation for the delay in filing her appeal with the Standing Committee, which, under the Administrative Rules of the Pension Fund, should have been filed within three months of the receipt of the decision. She also confirmed that she would not request a new Medical Board. On 14 January 1992, the Secretary of the UNJSPB informed the Applicant that her case would be presented to the next meeting of the Standing Committee, on the basis of the documentation that had been submitted to the ILO Pension Committee, together with the supporting documentation and information she had provided in her various communications to the Secretary of the UNJSPB. An assessment of the Applicant's case by the medical consultant to the UNJSPB, dated 22 June 1992, was also provided to the Standing Committee. On 2 July 1992, the Standing Committee decided to reject the Applicant's request. In a letter dated 22 July 1992, the Secretary of the UNJSPB informed the Applicant as follows:

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Administrative Tribunal of the United Nations

"After examining the documentation in your case, including the medical evidence you had provided, the Standing Committee decided that: (a) In view of the explanation you had provided for the delay in lodging your appeal to the Standing Committee, your appeal would not be deemed time-barred; and (b) The decision taken by the ILO Staff Pension Committee and confirmed upon review, that you were not entitled to a disability benefit from the UN Joint Staff Pension Fund be upheld, on the grounds that you had not been incapacitated for further service within the meaning of article 33(a) of the Fund's Regulations when you separated from ILO service on 30 September 1989." On 21 October 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Standing Committee of the UNJSPB drew the wrong conclusions from the report of the Medical Board that had been set up to consider the Applicant's request for a disability benefit. 2. The Medical Board's report contains a number of factual errors and omissions. Whereas the Respondent's principal contentions are: 1. The Applicant was not incapacitated for further service on the date of her separation. 2. The Applicant was accorded due process of law. 3. The decision by the Standing Committee denying the Applicant a disability benefit constituted a proper and reasonable exercise of the Standing Committee's authority and was based on medical evidence. The Tribunal, having deliberated from 23 June to 6 July 1994, now pronounces the following judgement: I. The Applicant appeals from a decision of the Standing Committee of the UNJSPB (the Standing Committee), communicated to her by a letter dated 22 July 1992, which denied her a disability benefit under article 33(a) of the Pension Fund's Regulations. The Applicant separated from the ILO with effect from 30 September 1989, on the basis of an agreed termination of her appointment entered into in June 1988. The Applicant had sustained an injury in March 1988, which left her with some residual partial limitations on her range of motion. During the period from 16 May 1988 to 12 June 1988, she worked some of the time and was on sick leave for part of the time. Thereafter, the Applicant did not work but took annual leave until 8 November 1988. Under the terms of her agreed termination, her then existing appointment was terminated, with

Judgement No. 635

15

effect from 8 November 1988. As of 10 November 1988, she was given a fixed-term contract of one year, under which she was placed on special leave without pay to enable her, if she wished, to continue to contribute to the Pension Fund. II. In connection with the Applicant's agreed termination, it was indicated that thereafter, she was going to apply for a disability benefit from the Pension Fund on the basis of the combined effects of a serious illness she had suffered in 1985, from which she had recovered, and two subsequent episodes in which she sustained injuries. At the time the agreed termination was being contemplated by the ILO, a negative view as to her possible entitlement to a disability benefit had been expressed by the ILO's Medical Advisor. As noted above, at the time of her official separation, the Applicant was not on sick leave. Moreover, an internal ILO document dated 8 March 1988, which was submitted by the Applicant, indicates that consideration was being given to offering the Applicant an agreed termination because of a number of factors "likely to have a negative impact on her work and her working relationships." But nothing in this document or elsewhere in the record indicates any belief by the ILO that the Applicant was incapacitated for further service on medical grounds, or that this was the underlying reason for such a termination. III. In connection with the review by the ILO Pension Committee of its denial of the award of the disability benefit to the Applicant, a Medical Board was convened. The Medical Board unanimously concluded that the Applicant had suffered adverse psychological effects stemming from earlier ailments and based on a depressive personality. It decided by a 2-1 majority (the minority being the physician appointed by the Applicant) that this did not incapacitate the Applicant on a long-term basis for further service. With the Medical Board report, and other evidence before it, the denial of the award of a disability benefit was upheld by the ILO Pension Committee and later by the UNJSPB. The criterion for entitlement to a disability benefit under article 3 3 (a) is that the staff member must have become "incapacitated for further service... reasonably compatible with his abilities, due to injury or illness constituting an impairment to health which is likely to be permanent or of long duration." The Applicant agrees with the Respondent's contention that this criterion does not encompass partial disability. IV. The Applicant's appointee to the Medical Board submitted a clarifying statement making the point that, although he agreed with the basic diagnosis of the majority, he felt that this incapacitated her for further service. He also pointed out (and this is reflected in the Medical Board report) that the members of the Board had considered, in addition, whether the award of a disability benefit to the Applicant would be helpful or harmful in terms of her overcoming the adverse psychological ef-

16

Administrative Tribunal of the United Nations

fects. The majority felt that award of a disability benefit would be unhelpful; the minority member reached the opposite conclusion. V. In the view of the Tribunal, the latter issue is only marginally relevant, if at all, to the central issue decided by the Medical Board. Although the majority's view is not inconsistent with its conclusion on the central issue, the matter of what might be best for the Applicant's future mental condition is not directly pertinent to the issue of her entitlement, if any, under article 33(a). As to that issue, the conclusion of the majority of the Medical Board is clear and provides reasonable support for the determination of the Standing Committee from which the Applicant appeals. VI. The Tribunal has held consistently that it will not attempt to substitute its judgement on medical matters for a properly rendered judgement by a medical board. The Applicant also agrees that this is the governing jurisprudence. This principle is even more firmly applicable in cases involving the subject of psychological ailments and their consequences. In this area, which is open to abuse and exaggerated claims, the Tribunal would be reluctant to overturn a reasonable judgement by the Standing Committee, predicated on a medical board conclusion. The Applicant contends that the evidence of her entitlement to a disability benefit is so clear and convincing that the Tribunal should order the Pension Board to award it to her. The Tribunal is unable to accept that contention on the basis of the record before it. VII. The Applicant also contends that the Standing Committee's determination was procedurally flawed because it appears to have been based, in part, on a memorandum dated 22 June 1992, from the Pension Board's medical consultant, which had not been made available to the Applicant for comment before the Standing Committee rejected her request, and because that memorandum contained alleged factual errors. In addition, the Applicant asserts that the original Medical Board report was not made available to her in time for her to comment on it before it was considered by the Standing Committee. As to the latter point, while it is, of course, desirable that such reports should be made available to applicants with reasonable promptness, the Tribunal has difficulty understanding why its contents, if not the document itself, would not normally have been made available to the Applicant by the member of the Board appointed by her. (Cf. Judgement No. 502, Giscombe (1991), para. IX.) There is no apparent reason why applicants would be unable to arrange to be informed by their own appointees as to the contents of medical board reports. In any case, where this should not prove to be feasible, the Respondent should make the report available promptly. Here, it is unclear whether the Applicant was informed of the contents of the report before she received a copy. She does not press the point. In any event, she was

Judgement No. 635

17

given the opportunity to request a new Medical Board when her case was under consideration by the Standing Committee, but she declined to do so. VIII. With respect to the Applicant's contention regarding the memorandum dated 22 June 1992, from the Pension Board's medical consultant, the Tribunal considers that it would have been the better practice for the Pension Board to have made a copy of this memorandum available to the Applicant so that she could have commented on it, if she wished, before it was considered by the Standing Committee. However, in the circumstances of this case, the Tribunal finds that this irregularity was both minor and harmless, and does not require any further action by the Tribunal. IX. The Applicant concedes that some of the alleged errors in the memorandum were insignificant. Those alleged to be of consequence are the absence of a reference to various medical reports previously submitted by the Applicant. But there is no basis for an assumption by the Tribunal that those medical reports were not in the record before the Standing Committee. Nor was the medical consultant obliged to discuss them. Hence, the fact that the 22 June 1992 memorandum did not refer to them is of no consequence. Secondly, the Applicant asserts that the 22 June 1992 memorandum, in purporting to sum up the situation, was in error in failing to recognize that one medical report, dated 14 November 1991, previously submitted by the Applicant to the Pension Fund, stated that since 14 September 1989, the Applicant had been unfit for work. However, that medical report, which was issued long after the Applicant had ceased working for the ILO, did not state that the Applicant was incapable of further service reasonably compatible with her abilities on a permanent or long term basis. It was, therefore, not in conflict with the summing up of the situation by the Pension Board's medical consultant. Nor, as claimed by the Applicant, was the summing up inconsistent with an earlier report dated 21 October 1988, by a physician who treated the Applicant. That physician also did not assert that the Applicant was incapacitated to the point of being incapable of further service on a permanent or long term basis. Finally, the Applicant claims that a statement in the summing up portion of the memorandum, that the Applicant had been examined by a doctor from the Joint Medical Service in Geneva, who concluded that she was not incapacitated to the point of being incapable for further service, was erroneous. Whether the doctor named had actually examined the Applicant does not appear to be of decisive importance in the circumstances of this case. The record shows that the Joint Medical Service in Geneva had been apprised of the Applicant's medical history and had informed the ILO of its belief that she was not incapacitated for work to the point of being incapable of further service. Moreover, the members of the Medical Board who also reached that conclusion, did examine her.

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Administrative Tribunal of the United Nations

X. For the foregoing reasons, the application is rejected. (Signatures) Jerome ACKERMAN

Mikuin Leliel BALANDA

Vice-President, presiding Mayer GABAY

Member R. Maria VlCIEN-MlLBURN

Member

Executive Secretary

Geneva, 6 July 1994

Judgement No. 636 (Original: English) Case No. 713: Noll-Wagenfeld

Against: The Secretary-General of the United Nations

Application of a staff member of the United Nations for making her promotion to P-5 retroactive to 1 October 1987, under the 1987promotion review. The Joint Appeals Board found that the criteria for promotion under the 1987 promotion review guidelines had been met by the Applicant and that it was not proper to take into account certain statements in the Tribunal's Judgement No. 410 into account.—It recommended reconsideration of the Applicant's casefor promotion under the 1987promotion review guidelines.—Recommendation accepted, followed by decision to promote the Applicant with effect from 1 April 1992. Under the Tribunal's jurisprudence promotions, including dates thereof, are not matters of right but are within the discretion of the Respondent.—Qualifications, experience, performance reports and all other relevant factors are appraised freely by the Secretary-General and the Tribunal will not substitute itsjudgement.—Secretary-General's discretion must be exercised within the applicable legal norms and cannot be improperly motivated or exercised in an arbitrary or discriminatory manner.—The Tribunal notes that the information circular on the 1987 promotion review did not establish a mandatory date for promotion.—The Tribunal will not substitute itsjudgement for that of the Secretary-General with respect to thefacts to be taken into account and finds that it was neither arbitrary nor discriminatory to take account of facts surrounding Judgement No. 410 in deciding whether the Applicant met the highest standards of efficiency, competence and integrity required by staff regulation 4.5.—With regard to promotions and their effective date the discretion of the Secretary-General is necessarily judgemental so long as it is not tainted by arbitrariness, bias, discrimination, mistake of fact, or other extraneous matters and the Tribunal does not perceive any such flaws. Application rejected.

Judgement No. 636

19

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, Vice-President, presiding; Mr. Francis Spain; Mr. Mayer Gabay; Whereas at the request of Meike Angelika Noll-Wagenfeld, a staff member of the United Nations, the President of the Tribunal, with the agreement of the Respondent, extended to 30 November 1992, the time-limit for the filing of an application to the Tribunal; Whereas, on 19 November 1992, the Applicant filed an application that did not fulfil all the formal requirements of article 7 of the Rules of the Tribunal; Whereas, on 8 February 1993, the Applicant, after making the necessary corrections, again filed an application requesting the Tribunal, to order the Respondent to, inter alia: '' (i) ... announce ... the addition of the Applicant's name the 1987 P-5 (Senior Officer) Promotion Register; (ii) ... rescind [the] decision... that the effective date of [the Applicant's] promotion should... be ... 1 April 1992; (iii) . . . implement the Applicant's promotion to the P-5 level, under the 1987 promotion review retroactive to 1 October 1987,... (iv) . . . restore to the Applicant the seniority in grade and emoluments of which she has been deprived as a consequence of: (a) The failure of APB [Appointment and Promotion Board] to give full and fair consideration to her eligibility for promotion under the 1987 promotion review; and (b) The arbitrary and discriminatory decision to establish the effective date of her promotion at 1 April 1992 and not earlier; (d) In the event that the Secretary-General decides, in the interest of the United Nations, to pay compensation for the injury sustained in accordance with the option given to him under article 9, paragraph 1, of the Statute, the Applicant requests compensation as follows: An amount equivalent to the difference between the salary and emoluments received for the period 1 October 1987 to date and... [what] she would have received had she been promoted to the P-5 level effective 1 October 1987." Whereas the Respondent filed his answer on 13 July 1993; Whereas the Applicant filed written observations on 1 September

1993;

20

Administrative Tribunal of the United Nations

Whereas the facts in the case are as follows: The Applicant entered the service of the United Nations on 1 October 1975, on a probationary appointment at the P-3, step 1 level, as a Human Rights Officer in the Division of Human Rights at the United Nations Office in Geneva (UNOG). On 1 October 1977, she received a permanent appointment and she was promoted to the P-4 level, with effect from 1 April 1980. On 1 September 1986, the Applicant was transferred to the Office of the Director General as "Assistant to the Director-General". On 14 October 1986, the Director-General recommended the Applicant's promotion to the P-5 level in connection with the 1986 promotion review exercise. He noted that she would assume "the duties vacated by.. . and by May 1987, she will replace ... as Senior Legal Officer." On 17 June 1987, the Assistant Secretary-General for Human Resources Management announced to the staff, in information circular STAC/87/35, the 1986 Senior Officer (P-5) Promotion Register. The Applicant's name was not included therein. The Applicant subsequently instituted a recourse procedure in accordance with paragraph 4 of ST/IC/87/35, against the non-inclusion of her name in the 1986 Senior Officer Promotion Register, but was unsuccessful. On 28 July 1987, the Officer-in-Charge of UNOG announced in information circular No. 3425, that the Applicant had been appointed Senior Legal Officer, with effect from 1 April 1987. In a memorandum dated 3 June 1988, the Director-General recommended that the Applicant be promoted to the P-5 level, in connection with the 1987 promotion review exercise. He noted in his recommendation that the Applicant "has proven to be a very professional, capable and thorough incumbent of the post which is classified at the P-5 level". On 22 May 1989, the Assistant Secretary-General for Human Resources Management announced to the staff, in information circular ST/IC/89/37, the 1987 Senior Officer (P-5) Promotion Register. The Applicant's name was not included. On 21 June 1989, the Applicant instituted a further recourse procedure against the non-inclusion of her name in the Register, in accordance with paragraph 4 of ST/IC/89/37. In her letter of recourse addressed to the Chairman of the Appointment and Promotion Board (APB), the Applicant argued that since her performance had been fully satisfactory, she could only assume that the Board had taken other facts into account, found in United Nations Administrative Tribunal Judgement No. 410, in deciding not to include her name in the Register. In this Judgement, rendered on 13 May 1988, the Tribunal held that the Applicant was not entitled to receive payment of her salary at the dependency rate and a dependency allowance in respect of two of her

Judgement No. 636

21

children as her husband, who was an employee of the International Telecommunication Union, was also receiving his salary at the dependency rate in respect of their elder daughter and such payment constituted duplicate payment of dependency benefits, prohibited under the Staff Rules. She added: "if after having carefully considered my explanations as to UNAT Judgement No. 410, ... you nevertheless believe that my behaviour amounted to misconduct and should be sanctioned, then please refer my case to the Secretary-General proposing that the allegations be examined by a Disciplinary Committee as foreseen by the Staff Rules and Regulations." She concluded by stating that to take into account Judgement No. 410 "in order to justify" the non-inclusion of her name in the Register "would amount to demotion, a disciplinary measure which can only be applied as a result of disciplinary proceedings." In a letter dated 7 December 1989, the Chairman of the APB informed the Applicant that, notwithstanding the additional information presented to the APB, the APB had decided that there were no grounds to amend its previous recommendation not to include her name in the 1987 P-5 Promotion Register. In a letter dated 3 January 1990, the Applicant requested the Secretary-General to review the administrative decision not to include her name in the 1987 P-5 Promotion Register. In a reply dated 20 March 1990, the Director, Staff Administration and Training Division, Office of Human Resources Management, wrote to the Applicant, inter alia, as follows: It has been the function of the Appointment and Promotion bodies to evaluate the promotion recommendations made by the relevant department, to consider all the staff members having the required seniority in the light of the criteria set out in the Staff Regulations, and to submit their recommendation to the Secretary-General for his decision. In evaluating the recommendation for your promotion, the Board could properly take into account Judgement No. 410 previously rendered by the Administrative Tribunal. The definition of the standards applicable to all staff members, which was contained in that judgement, did not involve any issue of fact which would have required the intervention of the Joint Appeals Board. The decision not to recommend you can in no way be seen as a 'demotion', as you characterize it, since you have remained at the level which was yours when the judgement was rendered." On 27 April 1990, the Applicant lodged an appeal with the Geneva Joint Appeals Board (JAB). The JAB adopted its report on 9 December 1991. Its conclusions and recommendation read, in part, as follows:

22

Administrative Tribunal of the United Nations

"35. ... the Panel concludes: (a) That the guidelines for the 1987 promotion review are applicable to the Appellant's case; (b) That prima facie the criteria for promotion contained in the guidelines for the 1987 promotion review had been fully met by the Appellant; (c) That it was not justified to take into account certain statements of Judgement No. 410 as a basis for the non-recommendation for promotion of the Appellant. 36. Therefore, the Panel unanimously recommends to the Secretary-General that the Appellant's case for promotion be reconsidered fully, fairly and objectively under the guidelines for the 1987 promotion review, taking into account the conclusions of the Panel." On 31 January 1992, the Director, Office of the Under-Secretary-General for Administration and Management, transmitted to the Applicant a copy of the JAB report and informed her as follows: "The Secretary-General has re-examined your case in the light of the Board's report. He shares the Board's conclusion that your case fell within the guidelines of the 1987 promotion review and that you should, therefore, have been given full consideration for promotion under the 1987 review. Due to the procedural grounds, which were given as one of the reasons for the rejection of your case, such full consideration would appear not to have been given. At the same time, the Secretary-General wishes to reaffirm that, in accordance with regulation 4.5, the paramount consideration in promotion shall be the necessity of securing the highest standards of efficiency, competence and integrity. The Secretary-General has decided, accordingly, that your case should be remanded to the Appointment and Promotion Board (APB) for full and fair consideration of your eligibility for promotion under the 1987 review taking into account all relevant criteria. If the outcome of this review is not positive, the APB should be requested to consider your promotion within a reasonable period thereafter as an exception to the Vacancy Management System." On 6 July 1992, the Under-Secretary-General for Administration and Management informed the Applicant as follows: "Further to the decision of the Secretary-General regarding your appeal, which was conveyed to you on 31 January 1992, the Appointment and Promotion Board has completed its consideration of your candidature for promotion to P-5 level. Having reviewed the facts relating to your case (the Administrative Tribunal Judgement No. 410, the Geneva JAB recommenda-

Judgement No. 636

23

tions. . .) as well as the recommendation of the Appointment and Promotion Board that the promotion date not be retroactive but be closer to the date of the Board's deliberations on the case, I have decided, on behalf of the Secretary-General, that the effective date of your promotion to the P-5 level shall be 1 April 1992. . .." This constitutes the full implementation of the decision conveyed to you on 31 January 1992. The Applicant's promotion to the P-5 level was implemented with effect from 1 April 1992. On 8 February 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. As the Respondent determined that the Applicant met all relevant criteria for promotion under the 1987 promotion review exercise, he must consider that the Applicant fully merits promotion under that review insofar as all the necessary criteria under the Staff Regulations and specific guidelines for that review have been met. 2. The determination of the effective date of promotion from the annual promotion registers has never been a function of the date on which the APB conducts its deliberations. 3. The recommendation by the APB that the effective date of promotion should be "closer to the date of the Board's deliberations" and the Respondent's decision that such date should be 1 April 1992, are arbitrary and discriminatory and constitute a punitive measure. Whereas the Respondent's principal contention is: The decision on the effective date of the Applicant's promotion lies within the Respondent's discretion, which he properly exercised in the present case. The Tribunal, having deliberated from 30 June to 8 July 1994, now pronounces the following judgement: I. The Applicant appeals from a decision by the Respondent dated 6 July 1992, promoting her to the P-5 level, with effect from 1 April 1992. The Applicant contends that this action violated her rights because her promotion was not made retroactive to 1 October 1987, the earliest possible date established in information circular ST/IC/89/37, dated 24 May 1989, for promotion from the 1987 register. The Applicant thus asks for the seniority in grade and emoluments to which she would have been entitled had she been promoted to the P-5 level, with effect from 1 October 1987. In the alternative, if she is to receive only compensation, the Applicant asks that it be equivalent to the difference between her salary and emoluments for the period from 1 October 1987 to date and the salary and

24

Administrative Tribunal of the United Nations

emoluments, including appropriate step increments which she would have received if she had been promoted to the P-5 level, with effect from 1 October 1987. II. The broad issue raised by the Applicant is whether the Respondent's decision, dated 6 July 1992, constituted an abuse of discretion. It is well settled by the Tribunal's jurisprudence that promotions of staff members are not matters of right but are within the discretion of the Respondent. This is equally so with respect to the effective date of a promotion. The Tribunal has held repeatedly that qualifications, experience, performance reports, and all other factors relevant to promotion are appraised freely by the Secretary-General and that the Tribunal will not substitute its judgement concerning such matters. The Tribunal has also made it clear that the discretion of the Secretary-General must be exercised within the applicable legal norms and that it cannot be improperly motivated or exercised in an arbitrary or discriminatory manner. Hence, the specific question for examination by the Tribunal is whether the Respondent's decision not to make the Applicant's promotion retroactive to 1 October 1987 was unlawful because of wrongful motivation or because it was arbitrary or discriminatory. III. The Tribunal notes at the outset that the information circular referred to above, on which the Applicant relies, did not mandate that promotions made as a result of the 1987 promotion review be with effect from 1 October 1987. That date was merely described as the earliest possible effective date for promotion from the 1987 register. It did not prohibit a later effective date. Accordingly, there is no question in this case of inconsistency between the effective date of the Applicant's promotion and a date required by a rule, regulation, or binding administrative issuance. IV. When the Applicant was first considered for a promotion in connection with the 1987 promotion review, it appears that she did not receive a favourable recommendation for two reasons. First, it was thought that she was not eligible because of limitations associated with the institution of the Vacancy Management System. In addition, Judgement No. 410, Noll-Wagenfeld, dated 13 May 1988, was evidently taken into account as bearing on whether the Applicant had met the highest standards of efficiency, competence, and integrity. The Applicant submitted an extensive recourse to the Chairman of the APB, setting forth her views with regard to Judgement No. 410 and, in particular, matters raised by some aspects of the case involving her integrity. The APB, by a letter to the Applicant dated 7 December 1989, from its Chairman, informed her that it had given full and careful consideration to the information contained in her recourse, but had concluded that it did not provide grounds for amending its previous recommendation.

Judgement No. 636

25

V. The Applicant then submitted her case to the Joint Appeals Board (JAB). The JAB concluded that the Administration had erred in believing that the Applicant was not eligible for promotional consideration because of the limitations related to the Vacancy Management System. It also concluded that Judgement No. 410 was an extraneous factor which should not have been taken into account by the APB or the Respondent. The JAB recommended that the Applicant's case for promotion be considered fully, fairly, and objectively under the guidelines for the 1987 promotion review, taking into account the JAB's conclusions. VI. The Respondent, by a decision dated 31 January 1992, informed the Applicant that he shared the JAB's conclusion that her case fell within the guidelines of the 1987 promotion review and that she should have been given full consideration under it. At the same time, the Respondent reaffirmed that, in accordance with staff regulation 4.5, the paramount consideration in promotion "shall be the necessity of securing the highest standards of efficiency, competence, and integrity." The Applicant's case was then remanded to the APB for full and fair consideration of her eligibility for promotion under the 1987 review, taking into account all relevant criteria. That review and the APB recommendation that the promotion date not be retroactive, but be closer to the date of the APB's deliberations, led to the decision dated 6 July 1992, being appealed by the Applicant. VII. Reduced to its essentials, the Applicant's position is that the Tribunal should hold that, in considering the effective date of her promotion, the Respondent could not lawfully take into account facts surrounding the Tribunal's Judgement No. 410. However, for the Tribunal to so hold would be tantamount to substituting its judgement for that of the Secretary-General with respect to the facts to be taken into account in considering a promotion. That, as the Tribunal's jurisprudence establishes, is not the role of the Tribunal. The Tribunal finds that it was proper for the Respondent to consider the facts surrounding Judgement No. 410 to be relevant. It was therefore 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. Contrary to the view of the JAB, those facts are 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. It would be an unwarranted intrusion for the Tribunal 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 crite-

26

Administrative Tribunal of the United Nations

ria for promotion and the Respondent was entitled to appraise that material freely. That is what was done. VIII. With respect to decisions involving promotions or their effective date, the Secretary-General's discretion is necessarily judgemental. So long as it is not tainted by arbitrariness, bias, discrimination, mistake of fact, or other extraneous factors, it will not be overturned by the Tribunal. In this case, the Tribunal is unable to perceive the presence of any such flaws. IX. For the foregoing reasons, the application is rejected. (Signatures) Jerome ACKERMAN

Francis SPAIN

Vice-President, presiding

Member

Mayer GABAY

R. Maria VlCIEN-MlLBURN

Member

Executive Secretary

Geneva, 8 July 1994

Judgement No. 637 (Original: English) Case No. 694: Chhatwal

Against:

The Secretary-General of the United Nations

Application of a former staff member of the United Nations Children's Fund for a finding that his separation/termination was not legally valid. The Joint Appeals Board found that the Applicant's separation had been due to health grounds.—It recommended that, should the Applicant invoke recourse procedures against the decision to award him a disability benefit, the relevant time-limits should be waived. The Tribunal notes that the Applicant, although originally the decision not to extend his fixed-term appointment was taken for reasons of his performance, had in fact been terminated for health reasons and was awarded a disability benefit from the United Nations Joint Staff Pension Fund.—It also notes that the Applicant did not avail himself of the opportunity to request a medical board for review of the health reasonsfor which his appointment had been terminated and a disability benefit awarded.—There is no reason for the Tribunal to examine the decision to allow the Applicant's fixed-term appointment to expire, since this decision had not been implemented and the appointment was terminated instead for medical reasons.—As the appellant had not requested a medical board, there is no ground for further examination of this decision by the Tribunal.—Contrary to the Applicant's assertion the termination did not violate staff regulation 9.1 (a) as this regulation is not applicable to fixed-term appointments. Application rejected.

Judgement No. 637

27

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, First Vice-President, presiding; Mr. Luis de Posadas Montero, Second Vice-President; Mr. Mikuin Leliel Balanda; Whereas, on 1 September 1992, Tarvinder Singh Chhatwal, a former staff member of the United Nations Children's Fund, hereinafter referred to as UNICEF, filed an application requesting the Tribunal, inter alia: 11. (a) To find that the separation/termination order served upon the Applicant... dated 4 February 1992 (...) is not legally valid... (g) To find that the local UNICEF Management has failed to give appropriate notice of termination/ separation ... (h) To find that the local UNICEF Management was wrong in holding that the service of the Applicant was unsatisfactory ... (i) To find that the allegation of 'medically unfit' is patently wrong... (j) To find that one superior colleague... had... been indulging in ... unfair and unjust but systematic complaints against the Applicant... (k) To find that the Applicant was mentally tortured and harassed, humiliated etc. by UNICEF Management..." Whereas the Respondent filed his answer on 7 December 1992; Whereas, on 6 April 1994, the President of the Tribunal, pursuant to article 10 of the Rules of the Tribunal, put a question to the Respondent, to which he provided an answer on 15 April 1994; Whereas the Applicant filed written observations on 20 June 1994; Whereas, on 28 June 1994, the presiding member of the panel ruled that no oral proceedings would be held in the case; Whereas the facts in the case are as follows: The Applicant was initially hired by UNICEF in March 1971, on a series of Special Service Agreements as a Clerk/Typist, in the sub-office in Bombay, India. On 1 January 1974, he received a three-month fixed-term appointment as a Parts Clerk at the ND-3, step II level. His appointment was extended for further fixed-term periods of varying duration, until 31 May 1990, the expiration date of his last fixed-term appointment.

28

Administrative Tribunal of the United Nations

During the course of his employment with UNICEF, he received successive promotions to the ND-4, step II level, with effect from 1 January 1981, and to the ND-6 level, with effect from 1 August 1984. The Applicant's last extension was for the duration of one year, from 1 June 1989 until 31 May 1990. According to the record, when the Administration was considering this extension, the Applicant was advised that there would be "quarterly reports on [the Applicant's] conduct. .. and performance" during the term of the extension. In addition, the UN Medical Director reviewed the Applicant's medical records and classified him as 2A (candidates who have a correctible medical impairment and are only eligible for employment after this has been corrected or candidates who have had a serious medical problem and who cannot be cleared yet for employment). The Applicant was advised to obtain counselling and medical treatment, otherwise the Office of Personnel Services would "not be in a position to extend [the Applicant's] contract on a 2A classification." On 28 March 1990, the local Appointment and Placement Committee (APC) met to consider the Applicant's contractual situation. It noted that the Applicant's performance had deteriorated and that his supervisors had recommended that his fixed-term appointment should not be extended beyond its expiration date of 31 May 1990. There was, however, no agreement among the five members of the APC as to the final recommendation. Three members suggested that, on humanitarian grounds and because of his initial good performance, the Applicant should be considered for a lateral transfer on a fixed-term appointment of one year, so that his performance could be monitored in a different work situation. Two members of the Committee recommended that the Applicant's contract should not be extended as he had already been given ample opportunity to improve his performance. The UNICEF Representative in the India Country Office (ICO), decided not to extend the Applicant's fixed-term appointment. On 5 April 1990, the Personnel Officer at the ICO informed the Applicant of the decision not to renew his fixed-term appointment upon its expiration date, on 31 May 1990. On 6 April 1990, the Applicant filed a complaint with the Ombudsperson at UNICEF/ICO, alleging that the decision to let his fixed-term appointment expire was due to false allegations and charges made against him by his supervisor. In his report to the Director of UNICEF/ICO, submitted on 22 May 1990, the Ombudsperson concluded as follows: "The case was found very complicated and it was difficult to find fault and conclusive evidence to decide who was at fault—the staff

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29

member, supervisors or other Managers. Surely, members of the APC might have faced the same dilemma. However, considering the very long years of service of the staff member, and keeping in view the interest and good image of the Organization, the Director, ICO, may use her discretion, in good faith, to give one more chance to the staff member." On 16 May 1990, the Applicant requested the Executive Director of UNICEF to review the administrative decision not to extend his fixed-term appointment beyond 31 May 1990. On 26 July 1990, the Director of Personnel at Headquarters informed the Applicant that, as he was sick at the time of his separation from service, a substantive reply to his request for review would be given when the medical evaluation of his case had been completed. On 21 September 1990, the Applicant was informed by the Division of Personnel at Headquarters that, after reviewing his medical condition, the UN Medical Director had decided that the Applicant should continue on sick leave. The Applicant was accordingly reinstated, on sick leave, on full pay, until further notice from the Medical Director. On 1 October 1990, the Applicant was informed that he would be reinstated, with effect from 1 June 1990. On 9 November 1990, the Personnel Officer informed the Applicant that the Administration had forwarded to the Secretary of the Pension Board a recommendation to award him a disability benefit in accordance with article 33 of the Regulations and Rules of the United Nations Joint Staff Pension Fund. In the interim, he was being placed on sick-leave, with half-pay, with effect from 26 October 1990, as he had exhausted his entitlement to sick leave on full pay. On 6 March 1991, the Applicant wrote to the Executive Director of UNICEF alleging "biased action, mental torture and harassment" on the part of his supervisor. On 13 June 1991, the Deputy Executive Director wrote to the Applicant as follows: "Based on all the factors outlined above, we consider that the UNICEF Representative, ICO, properly exercised her authority, in strict accordance with due process, to allow your fixed-term appointment to expire as of c.o.b. [close of business] 31 May 1990. You had been told as early as 1988, that you must improve your performance if you wanted to remain in UNICEF. The Organization gave you numerous opportunities as well as time to improve, however you failed to do so. Additionally, it is well documented that you had problems not only with your immediate supervisor, but with your second reporting officer as well as your previous supervisors

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Administrative Tribunal of the United Nations

and other office staff who had written to complain about you. Therefore, we maintain that the non-renewal of your fixed-term appointment for unsatisfactory performance stands. We further do not consider that the documentation presented reflects that your last supervisor, [...], behaved in a prejudicial manner towards you. We further consider your unsubstantiated allegations against [your supervisor] in connection with his dealings with outside suppliers to reflect poorly on your judgement." On 24 July 1991, the Executive Director of UNICEF wrote to the Applicant and confirmed the decision conveyed by his Deputy in her letter of 13 June 1991. On 23 August 1991, the Applicant lodged an appeal with the Joint Appeals Board (JAB) against the decision not to extend his fixed-term appointment. On 25 November 1991, the Applicant was informed by the Secretary of the United Nations Joint Staff Pension Board as follows: ". . . the United Nations Staff Pension Committee has determined that you are incapacitated for further service and consequently entitled to a disability benefit under article 33 of the Regulations of the Fund... The payment of your benefit will take effect on the date following that on which you cease to be entitled to salary and emoluments from the United Nations." On 4 February 1992, the Chief, Personnel Services, informed the Applicant that he would be eligible to receive a disability benefit from the United Nations Joint Staff Pension Fund with effect from 1 February 1992, and that it had been therefore decided to separate him from the Organization with effect from 31 January 1992, from which date the Applicant would cease to receive salary and allowances from UNICEF. The JAB adopted its report on 6 May 1992. Its considerations and recommendations read, in part, as follows: "Considerations and recommendations 17. The Panel,..., expressed some concern at the absence of documentation supporting the Administration's contention that Appellant's behaviour had given rise to letters of complaint from his colleagues and supervisors other than [the Officer-in-Charge, Logistics Unit, Bombay]. In this connection, the question was raised whether the beginning of his difficulties with other staff coincided with his complaint alleging overpayments by UNICEF for material acquired, as a result of the actions of staff responsible for its purchase who did not challenge overpricing by the companies supplying it.

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31

18. In the absence of any conclusive indications, such as the outcome of disciplinary proceedings, if they had been held, the Panel found itself unable to determine whether the discontinuance of Appellant's employment would have been justified on grounds of unsatisfactory conduct and performance. 19. The Panel took note, however, of the fact that as the separation of Appellant from service was the consequence of his having been awarded a disability benefit by the UNSPC [United Nations Staff Pension Committee], his separation was due to health grounds, rendering academic the question of the adequacy of alternative grounds for discontinuance of his service. 20. As to the justification for the award of a disability benefit to the Appellant, the Panel noted that it neither had the necessary information nor the required competence to deal with the medical aspects of the award. But it wishes to draw attention to the fact that the procedures laid down in the administrative rules of the UNJSPF [United Nations Joint Staff Pension Fund] for challenging the award of a disability benefit, including the setting up of a Medical Board to deal with its medical aspects, have not yet been exhausted by the Appellant. 21. The Panel, therefore, unanimously recommends that if these procedures should be invoked by the Appellant, any time-limits which might have been exceeded by then, should be waived by the Committee considering this appeal." On 10 June 1992, the Under-Secretary-General for Administration and Management transmitted to the Applicant a copy of the JAB report and informed him as follows: "The Secretary-General has re-examined your case in the light of the Board's report. Taking into consideration all the circumstances of your case, and particularly the serious deterioration of your performance under several supervisors prior to the decision not to renew your fixed-term appointment, the Secretary-General finds that such decision was fully justified. He has taken note that the original decision not to extend your appointment was superseded by the decision to maintain you in service while your medical condition was being evaluated, and by the subsequent decision to terminate your appointment for health reasons on 31 January 1992, one day before you became eligible to receive the disability benefit which had been awarded to you by the United Nations Staff Pension Committee in November 1991. The Secretary-General agrees with the Board's conclusion that, if you so wish, you should be allowed to challenge the basis on

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which a disability benefit was awarded to you. Bearing in mind, however, that he has no decision-making authority under the Regulations and Rules of the United Nations Joint Staff Pension Fund, he cannot endorse the Board's recommendation that the United Nations Staff Pension Committee should waive the normal time-limits in the event you decide to ask that Committee to reconsider the award of a disability benefit to you. Since the termination of your appointment for reasons of health was based on the Medical Director's determination that you were incapacitated for further service, the Secretary-General has decided that a request on your part to have that determination reviewed by a Medical Board would be entertained, even though it would be outside the normal time-limits, provided it is received by the Medical Director in New York within two months of the date of this letter. The Secretary-General wishes to draw your attention to the fact that, in the event a Medical Board were to reverse the Medical Director's determination, the only result would be that you would no longer be eligible to receive the disability benefit which has been awarded to you. It would not mean that you would return to service with UNICEF. The only reason for not separating you from service upon the expiry of your fixed-term appointment was to allow for a determination of your medical condition and to permit you to receive a disability benefit. Should the determination that you were incapacitated for further service be reversed, the prior decision not to extend your appointment would be given full force and effect. In other words, given your prior unsatisfactory service, UNICEF would not grant you a further appointment." On 1 September 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The decision by the Respondent not to extend the Applicant's fixed-term appointment on medical grounds was in violation of the provisions of the UNICEF Personnel Administration Manual on the termination of appointments. 2. The termination of the Applicant's appointment also violated United Nations staff regulation 9.1 (a). 3. The Applicant was exposed to "extreme mental torture and humiliation" to which the management of UNICEF/ICO was indifferent. Whereas the Respondent's principal contentions are: 1. The first decision was to allow the Applicant's fixed-term appointment to expire. Expiration of appointments is not termination of appointments, within the meaning of regulation 9.1 of the United Nations

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Staff Regulations and Rules. Procedures for termination of appointments are inapplicable to cases of expiration of fixed-term appointments. 2. The second decision was based on a determination by the UN Medical Service that the Applicant was incapacitated for further service. This decision did not violate his rights. 3. The Applicant's charges of "mental torture and harassment" by his supervisor are unfounded. The Tribunal, having deliberated from 23 June to 8 July 1994, now pronounces the following judgement: I. The Applicant appeals from a decision dated 10 June 1992, by the Secretary-General. That decision adopted a recommendation by the Joint Appeals Board (JAB) for waiver of time limits should the Applicant wish to request a Medical Board in order to challenge the termination of his appointment for reasons of health. Originally, there had been a decision not to extend the Applicant's appointment for reasons which included a "serious deterioration" of the Applicant's performance "under several supervisors." However, that was superseded by a decision to retain the Applicant while his medical condition was being evaluated. Following the evaluation, the Applicant's appointment was terminated for health reasons on 31 January 1992. He thereupon became eligible to receive the disability benefit awarded to him by the United Nations Staff Pension Committee as of 1 February 1992. II. The Applicant did not avail himself of the opportunity to request a Medical Board for review of the health reasons for which his appointment had been terminated and his disability benefit had been awarded. Instead, he has been receiving the disability benefit from the United Nations Joint Staff Pension Fund since 1 February 1992. III. The Applicant's original claim considered by the JAB was for compensation in the amount of $10 million for extreme mental torture, harassment, etc., by his supervisors and by others of the India Country Office of UNICEF. The JAB found itself unable, on the basis of the evidence before it, to determine the validity of the Applicant's claim that, because there had been no deterioration in the quality of his performance and conduct and because he was perfectly fit to continue in service, his fixed-term appointment should have been renewed on its expiration on 31 May 1990. Nor did it deem itself competent or in possession of the necessary information to deal with the question of whether, for reasons of health, the Applicant was no longer able to perform his duties. The JAB considered that, as the Applicant had been separated for reasons of health, the question of the adequacy of alternate grounds for discontinuance of his service had become academic.

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Administrative Tribunal of the United Nations

IV. The Tribunal agrees with the JAB's analysis. There is no reason for the Tribunal to examine the decision to allow the Applicant's fixed-term appointment to expire since that decision was not implemented. In the meantime, the Applicant continued to receive his salary and was on sick leave, in accordance with the applicable provisions of UNICEF's Personnel Administration Manual, until his termination for medical reasons. The Applicant has not challenged his termination for medical reasons. He has not requested a Medical Board. Hence, there is no ground for further examination of that decision by the Tribunal. Nor is there any merit to the Applicant's contention that his termination violated staff regulation 9.1 (a) since that regulation is inapplicable to staff members holding fixed-term appointments. Similarly, there is no basis for a finding that the Applicant's charges of mental torture and harassment by his supervisors were established. Those charges were investigated by an Ombudsperson, who was unable to determine whether they were meritorious, or to decide who was at fault. Mainly because of the Applicant's length of service, he recommended that, as a discretionary matter, the Applicant be given another chance. V. For the foregoing reasons, the application is rejected. (Signatures) Jerome ACKERMAN First Vice-President, presiding

Luis de POSADAS MONTERO Second Vice-President

Mikuin Leliel BALANDA Member

R. Maria VlCIEN-MlLBURN Executive Secretary

Geneva, 8 July 1994

Judgement No. 638 (Original: English) Case No. 709: Treggi

Against:

The Secretary-General of the United Nations

Application of aformer staffmember of the United Nations for reimbursement of travel expenses incurred by him in good faith in the interest of the Organization and for compensation for injury sustained as a result of unwarranted attacks. The Joint Appeals Board found, by majority vote, that the Applicant should have known that he lacked the authority to undertake the travel at issue, although the Administration had not made its views clearly known.—It recommended the rejection of the appeal.

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The Tribunal reminds that, under staff rule 107.6, official travel must be authorized and that the onus to determine whether it was authorized was on the Applicant.—It finds, however, that the confusion surrounding the Applicant's travel was partly the fault of the Administration which did not convey properly to the Applicant that his authorization to travel on mission to the Soviet Union had been changed.—The Applicant was therefore in good faith when he departed—Applicant s contention that he was entitled to the reimbursement of his travel expenses on the basis of the general legal principle of unjust enrichment.—Definition of this doctrine.—The Administration implicitly ratified the Applicant's mission by continuing discussion with the Soviet authorities on the recruitment of Soviet candidates, resulting from the Applicant's mission.—The Respondent has thus benefited from the Applicant's work; the Tribunal concludes that there has been an inequitable enrichment on the Respondent 'span and that the Applicant is entitled to be reimbursed for his expenses.—The Applicant failed to provide evidence of damage to his reputation and his request for compensation is rejected.—The Tribunal stresses that this is a « cas d 'espece », as it is incumbent upon staff members to ensure that they have been authorized to travel on mission. Order to pay the Applicant the amount of US$ 1,190, corresponding to his travel expenses.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Luis de Posadas Montero, Second Vice-President, presiding; Mr. Mikuin Leliel Balanda; Mr. Mayer Gabay; Whereas at the request of Gian Carlo Treggi, a former staff member of the United Nations, the President of the Tribunal, with the agreement of the Respondent, extended to 31 January 1993, the time-limit for the filing of an application to the Tribunal; Whereas, on 25 January 1993, the Applicant filed an application requesting the Tribunal, inter alia: "(a) To declare invalid the decision of the Secretary-General to reject the Applicant's request for reimbursement of the portion of the airfares to the former Soviet Union during his official travel in June 1991 and daily subsistence allowance for a three-day stay in that country; (e) To find that the Applicant has acted in good faith and in the interests of the United Nations; (/) To find that the Applicant's mission, far from creating problems, has been beneficial to the Organization, and that, therefore, the Organization, in denying the Applicant the reimbursement for the costs incurred in connection with the travel, has obtained an unjust enrichment;

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Administrative Tribunal of the United Nations

(h) To order the Secretary-General to reimburse the Applicant for the costs incurred in connection with the travel to the former Soviet Union; (i) To fix the amount of compensation payable to the Applicant for the injury sustained as a result of unwarranted and widely circulated attacks upon his integrity, and for the adverse publicity resulting from notoriety conferred on him." Whereas the Respondent filed his answer on 13 May 1993; Whereas the Applicant filed written observations on 20 December 1993; Whereas the facts in the case are as follows: The Applicant entered the service of the United Nations on 25 March 1971, on a probationary appointment at the P-3, step 1 level, as an Administrative Officer in what is now the Office of Human Resources Management (OHRM). On 1 May 1972, his functional title was changed to Recruitment Officer and on 1 May 1973, his appointment was converted to permanent. The Applicant was promoted to the P-4 level, with effect from 1 April 1974. On 1 July 1978, he was transferred to the Department of Technical Cooperation and Development (DTCD). He was promoted to the P-5 level, as a Senior Recruitment Officer, with effect from 1 April 1980 and on 1 May 1984, his functional title became Chief of Unit. The Applicant separated from the service of the United Nations on 1 May 1992. On 24 August 1989, the then Chief of Technical Assistance Recruitment and Administration Service (TARAS), authorized the Applicant to travel to Moscow, for three days, on an official mission, in combination with home leave travel. The visit to Moscow did not materialize, as the entry visa arrived too late. On 15 April 1991, the Applicant wrote to the Executive Officer of DTCD, through the new Chief of TARAS, asking that, in connection with his home leave travel to Rome, his postponed mission to Moscow be authorized and requesting that his "travel authorization be processed accordingly." In the absence of the Director, Programme Support Division, DTCD, the Applicant obtained from the new Chief of TARAS, endorsement of his travel to Moscow. A travel authorization was issued on 1 June 1991. The "Purpose of Travel" was stated as "1991 Home leave travel to Rome... combined with stopover for 3 days in USSR to hold discussions with the National Recruitment Service regarding participation of candidates in the technical assistance programme." When the Director, Programme Support Division, DTCD, learned of the Applicant's plans, he indicated, in a note dated 21 June 1991, to the

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Chief of TARAS, that he would not approve the additional funds required for the Applicant's three-day stay in Moscow. On 25 June 1991, in a memorandum purportedly copied to the Applicant, he requested the Acting Executive Officer of DTCD to amend the Applicant's travel authorization form. This was done on the same day. The new Travel Authorization stated that its purpose was "To cancel official stopover for 3 days in Moscow combined with Home leave travel... decrease funds... $663 accordingly and change of departure and return dates." According to the Applicant, on 25 June 1991, when he picked up his ticket, he was informed by the UN Travel Agency that the Executive Office had amended his Travel Authorization and cancelled the portion of his trip to the Soviet Union. Nevertheless, the Applicant departed Headquarters on authorized home leave travel to Rome on 27 June 1991. His ticket included a stay-over in Moscow, that portion of the trip having been paid for out of his own pocket. In Moscow, he met with government officials to discuss the participation of Soviet national experts—particularly in natural resources—in the UN programme of technical assistance. On 19 August 1991, he wrote to the Under-Secretary-General, DTCD, attaching a report on his mission. On 11 September 1991, the Applicant filed a claim for reimbursement for the portion of the ticket for which he had paid (US$ 575.00) and daily subsistence allowance for three days in Moscow and Leningrad (US$ 615.00). On 17 September 1991, this request was denied. On 13 November 1991, the Applicant requested the Secretary-General to review that administrative decision. On 18 December 1991, he lodged an appeal with the Joint Appeals Board (JAB), alleging that the cancellation of his trip to the Soviet Union had been initiated by the Director, Programme Support Division, DTCD, out of revenge for prior disagreements. On 4 October 1991, the Under-Secretary-General, DTCD, had reported to the Assistant Secretary-General, OHRM, the Applicant's travel to the Soviet Union, in disregard of departmental instructions, as a case of possible misconduct. An investigation was held. In a letter to the Applicant, dated 12 February 1992, the Director, Staff Administration and Training Division, OHRM, stated inter alia: "5. Regardless of what you might have thought the reason was [for the cancellation of the trip], the fact is that you then proceeded with your plans, fully knowing that you had no travel authorization to go to Moscow.

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Administrative Tribunal of the United Nations

6. You actually left New York for Moscow on Thursday, 27 June 1991, in the evening. I therefore do not share your view that the time between the issuance of your air travel ticket and your departure did not allow you to seek clarification on the matter, when, as you concede, you had ample reason to do so. 7. After a review of all the circumstances ... the Assistant Secretary-General, Human Resources Management, has decided that the case should be closed in accordance with administrative instruction ST/AI/371 of 2 August 1991. It remains, however, that you engaged in travel which was not properly authorized, and adopted a course of conduct having serious implications for the Organization without prior discussion with your superiors. You were remiss in doing so." The JAB adopted its report on 26 May 1992. The considerations and recommendations of the majority of the Panel read as follows: ''

21. The Panel agreed that the methods of communication between the Director and the Appellant in connection with the revocation of the travel authorization was unsatisfactory. The Director never communicated with Appellant directly nor did he clearly indicate to the Acting Director, who had endorsed the travel request on the understanding that it was authorized, that it was not. His memorandum to the latter dealt only with the additional costs of the trip which he was not prepared to approve (...). 22. There would have been enough time before the Appellant went to pick up his tickets to make it clear to him that what was involved was not only the expenditure but the trip itself to which the Director was opposed at that time for reasons other than financial. In the light of this failure by the Administration to make its views on his intended trip to the USSR clear and unambiguously known to the Appellant, it was not surprising that the Appellant should have been left in some doubt on this crucial point. 23. However, the majority of the Panel felt that, nevertheless, once the Appellant had been informed that his travel authorization had been amended and the portion for travel to the USSR had been cancelled, he was under notice that he could no longer assume that he had such authorization, convinced though he might have been that he should have it. It was incumbent upon him to seek clarification from his supervisor at that point. Although the time left for doing so before his intended departure was short—two days—it was sufficient to allow him to do so.

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39

24. In the view of the majority, an experienced staff member of Appellant's rank with twenty years' experience in the service should have known that he lacked the authority to decide on his own to undertake the travel at issue. The amended travel authorization showed that his superiors did not want him to undertake it. While he may have questioned the justification for their decision, he could not ignore that decision except at his own risk. 25. Regrettable though it be that no clarification of the reasons for the decision was given, it was incumbent on the Appellant to seek it if he was in doubt, however little time there might have been left. Staff members cannot assume that they can make decisions on their own regarding travel at the expense of the Organization, without the authorization of their superiors. 26. While the majority regret that in this case this results in the staff member having incurred expenses for which he is not entitled to be reimbursed, for the reasons stated above, it recommends that the appeal be rejected. 27. At the same time, the majority wishes to draw to the attention of the Administration that Appellant was informed only at the last moment of the cancellation of what he believed to be an authorized mission. It recommends that steps be taken to avoid such delays in future." In a dissenting opinion, one member of the JAB recommended that the Applicant be reimbursed his "per diem and additional costs on his ticket for the mission" on the ground that "the notice cancelling the mission ... came from unconventional sources—the Travel Agency.... not known to be officially linked with the United Nations Administration for purposes of transmitting official messages between the United Nations Administration and United Nations staff." Furthermore, "The act which [the Applicant] committed not only caused no pecuniary or political harm to the UN, but was, in fact, of international benefit to the Organization." On 16 June 1992, the Assistant Secretary-General for Human Resources Management transmitted to the Applicant a copy of the JAB report and informed him as follows: "The Secretary-General has re-examined your case in the light of the Board's report. He regrets that you were not informed of the decision not to allow you to proceed to Moscow on official travel in conjunction with your home leave as soon as that decision had been taken. However, the Secretary-General agrees with the conclusion reached by the majority of the Panel that, before you decided to proceed to Moscow, you were nonetheless on notice that the travel authorization had been cancelled. Accordingly, he has decided to accept the Board's recommendation that your appeal be rejected."

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Administrative Tribunal of the United Nations

On 25 January 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Applicant's travel had been duly authorized by the Chief of TARAS. 2. The Applicant acted in good faith and did not intend to substitute his own judgement for that of his supervisors. 3. The decision of the Director, Programme Support Division, DTCD, to cancel the trip was based on personal reasons, contrary to the interests of the United Nations. Whereas the Respondent's principal contentions are: 1. The Applicant's trip to the Soviet Union was not authorized, and, therefore, expenses incurred by him are not reimbursable. 2. The decision to cancel the Applicant's trip was not vitiated by prejudice or other improper motives. The Tribunal, having deliberated from 30 June to 13 July 1994, now pronounces the following judgement: I. The Applicant claims that the mission had been authorized and that his actions were in good faith. Staff rule 107.6 specifies: "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." II. This rule clearly establishes that the onus was on the Applicant to determine whether he was authorized to travel. According to the Applicant, he did request and subsequently obtained the authorization to travel to the Soviet Union for three days in connection with home leave. III. It is not in dispute that a few weeks prior to the Applicant's departure there was confusion regarding his travel entitlements. Then, two days before his departure, the Applicant was informed at the UN Travel Agency of the cancellation of his trip to the Soviet Union. It is conceivable that the Applicant believed that the cancellation of his mission was caused by another administrative misunderstanding rather than a decision by his supervisors. Nevertheless, the Respondent claims that the Applicant departed fully aware that the trip was unauthorized and that therefore his request for reimbursement should be rejected. The Tribunal has some difficulty in fully accepting this contention as it believes that this regrettable confusion was partly the fault of the Respondent.

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41

IV. The Respondent failed in his responsibility to take diligent and reasonable steps to communicate to the Applicant that the mission had been cancelled. The Tribunal notes that in a communication dated 25 June 1991, the Director, Programme Support division, DTCD, asked the Acting Executive Officer, DTCD, to amend the Applicant's Travel Authorization to cancel the portion of travel to the Soviet Union. A copy of this communication was apparently sent to the Applicant but he alleges he never received it. This allegation has not been disputed by the Respondent. The Tribunal notes that the Administration used poor judgement when it left it to the Travel Agency to convey to the Applicant that his travel authorization had been changed. The lack of direct communication was underscored by the JAB in its report, as follows: "At the same time, the majority wishes to draw to the attention of the Administration that [the Applicant] was informed only at the last moment of the cancellation of what he believed to be an authorized mission. It recommends that steps be taken to avoid such delays in future." The JAB report also included a dissenting opinion by one of the members, which stated: "There is no showing that either the Director or someone in DTCD's Executive Office did, in fact, take any reasonably diligent steps to notify [the Applicant] of the cancellation. [The Applicant] was physically located in close proximity to either office. Common sense suggests that the very urgency of the matter should have dictated a necessity for full, effective steps aimed at stopping [the Applicant] from proceeding on to Moscow. Common sense was never followed in this case because DTCD preferred to leapfrog [the Applicant] in preference for the Travel Agency. This is a case of instructions not being direct and/or clear, a fault that does not reside in the staff member, but in the Administration." In addition, the Secretary-General, in accepting the recommendation of the JAB, included the following statement in his letter conveying his decision: "The Secretary-General... regrets that you were not informed of the decision not to allow you to proceed to Moscow on official travel in conjunction with your home leave as soon as that decision had been taken." V. The Tribunal trusts that the Applicant was in good faith when he departed. He was acutely aware that this mission to the Soviet Union had been planned and cancelled twice in the past at the last minute. Be-

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Administrative Tribunal of the United Nations

lieving 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 problem was administrative or whether in fact the original Travel Authorization had been cancelled. This omission, however regrettable, does not, in the Tribunal's view, detract from the Applicant's good faith. VI. The Applicant also contends that he is entitled to reimbursement of his travel expenses on the basis of the general legal principle of the prohibition of unjust enrichment. The doctrine of unjust enrichment is defined in Black's Law Dictionary (4th Edition, p. 1705) as: "[The] doctrine that a person shall not be allowed to profit or enrich himself inequitably at another's expense." VII. As a direct result of the work performed by the Applicant during his mission to the Soviet Union in 1991, the Administration reaped international benefit. It led to the receipt by TARAS of candidacies of Russian specialists in the technical field. Thus, the Respondent implicitly ratified the Applicant's mission by actively partaking in discussions with the Soviet Union concerning these candidates. VIII. Had the Respondent been steadfast in his assertion that the Applicant "misrepresent[ed] his presence as being on official UN business" and rejected the product of the Applicant's undertaking in the Soviet Union, then it could be argued that he did not gain from it. The Tribunal agrees with the dissenting opinion of the JAB which reads as follows: "7. ... The opinion here is that, given good faith intentions, [the Applicant's] acts could have been easily ironed out through the act of ratification. The act which [the Applicant] committed not only caused no pecuniary or political harm to the UN, but was, in fact, of international benefit to the Organization. It led to the realization of the very objectives which the UN had been striving to attain since 1989, namely the involvement of Russian experts in UN sponsored projects. 8. Why could the UN then not ratify, or affirm [the Applicant's] act, which had resulted in some benefit to the UN? The continued interaction between the DTCD and the Russians following closely upon [the Applicant's] mission would strongly suggest that [the Applicant's] act was done in the best interest of the UN, and in accordance with the objectives and directives of DTCD." IX. Although the Administration refused to pay the Applicant's travel expenses, it has nevertheless benefitted from the fruit of the Applicant's work. In this respect, the Tribunal concludes that there has been an

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43

inequitable enrichment on the Respondent's part. The Tribunal concurs with the dissenting opinion of the JAB: "Fairness and justice demands reimbursement of [the Applicant's] per diem and additional costs on his tickets for the mission." The Applicant is therefore, entitled to be reimbursed his expenses of US$ 1,190.00. X. Regarding the Applicant's claims for compensation for damages to his reputation due to the request for disciplinary measures against him, the Tribunal agrees with the Respondent's submission that the Applicant has failed to discharge the burden of proving improper motives in cancelling his mission to the Soviet Union. XI. The disciplinary action was suggested in October 1991 and in February 1992, the Assistant Secretary-General for Human Resources Management closed the case as not warranting any disciplinary action. The Applicant did not substantially demonstrate that he in fact suffered any damages in so short a time period. XII. In view of the foregoing, the Tribunal concludes from the record that the Applicant obtained the requisite authorization and that he was in good faith when he undertook his mission to the Soviet Union. Nevertheless, the Tribunal recognizes that both the Applicant and the Respondent failed in duly communicating with one another. This course of action resulted in this unfortunate case. XIII. The Tribunal stresses that this case should be treated as a "cas d'espece", as it is incumbent upon staff members to ensure that they have been authorized to travel before undertaking any mission on behalf of the Organization. XIV. The Tribunal rejects the Applicant's claim for compensation for the damage to his reputation as he has failed to provide evidence thereof. XV. For the foregoing reasons the Tribunal orders the Respondent to pay to the Applicant the amount of US$ 1,190.00, corresponding to his travel expenses. (Signatures) Mikuin Leliel BALANDA Member Mayer GABAY R. Maria VlCIEN-MlLBURN Member Executive Secretary Geneva, 13 July 1994

STATEMENT BY MR. Luis DE POSADAS MONTERO

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Administrative Tribunal of the United Nations

I agree with the above judgement only on the grounds set forth in paragraphs VI to XI. (Signatures) Luis de POSADAS MONTERO

R. Maria VlCIEN-MlLBURN

Vice-President, presiding

Executive Secretary

Geneva, 13 July 1994

Judgement No. 639 (Original: English) Case No. 693: Leung-Ki

Against:

The Secretary-General of the United Nations

Application of a staff member of the United Nations Conference on Trade and Development (UNCTAD)for an examination of conditions of restructuring of the Applicant's unit, for a declaration that the Applicant's supervisor's attitude was tainted with racial prejudice, for compensation for medical costs andfor restoration of the Applicant's career prospects. The Joint Appeals Board found that the restructuring had been carried out properly and that the Applicant was unable to substantiate his claim that the contested decision was vitiated by prejudice and other extraneous factors. The Tribunal examines whether the restructuring of UNCTAD was carried out following proper procedures and in compliance with the relevant documents.—It concludes that the relevant instructions were adhered to and that appropriate consultations were held.—Applicant's contention that he was bypassed in the selection process because of his supervisor's prejudice against staff members of certain racial background.—In claims of prejudice and discrimination the burden of proof is on the party alleging it and the Tribunal finds thatthe Applicant did not submit any proof to this effect.—Reorganization of an office falls within the discretionary powers of the Administration, unless it is tainted by prejudice or some other improper motive; the Tribunal will not examine whether reorganization should have taken place in another way.—Evaluation and selection of staff members for a particular post rests within the discretionary authority of the Secretary-General and can only be challenged on grounds of prejudice or improper motive.—The supervisor's discretionary authority to reassign staff is subject, as any discretionary decision, to certain rules of fairness and administrative procedures.—The onus of proving that the Applicant was not selected because of extraneous factors such as prejudice, improper motive or discrimination is on the Applicant and he has not been able to discharge it.—Applicant's claim for compensation of service-incurred injury is not properly before the Tribunal as it had not been submitted to the Advisory Board on Compensation Claims. Application rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS,

Judgement No. 639

45

Composed of Mr. Luis de Posadas Montero, Vice-President, presiding; Mr. Mikuin Leliel Balanda; Mr. Mayer Gabay; Whereas at the request of Fat-Chun Leung-Ki, a staff member of the United Nations Conference on Trade and Development, hereinafter referred to as UNCTAD, the President of the Tribunal, with the agreement of the Respondent, extended to 30 September 1992 the time-limit for the filing of an application to the Tribunal; Whereas, on 29 August 1992, the Applicant filed an application requesting the Tribunal, inter alia: ''

(d) To examine [whether] the methods of restructuring of the Commodities Division in UNCTAD (particularly, in the instance of this case, by an Officer-in-Charge recently transferred from another Division)... damaged career prospects of staff members such as the Applicant... (e) To examine [whether] ... the Officer-in-Charge of the Commodities Division (who was subsequently removed) has a deep-seated prejudice against staff members of certain racial backgrounds ... (f) To declare that [the Officer-in-Charge of the Commodities Division's] assessment of the Applicant's supervisory ability was tainted with prejudice and was done without consultation with his immediate supervisor. (g) To declare that the aforesaid assessment has inflicted great moral and psychological torments on the Applicant and his family ... contributing to the deterioration of his health ... (h) To compensate the Applicant, at least partly, for the medical and surgical costs, as well as to reimburse to the United Nations Health Insurance for the part of the costs borne by it. (i) To restore the Applicant's prospects for career development and that his promotion should be favourably considered if recommended by his supervisors." Whereas the Respondent filed his answer on 26 February 1993; Whereas, on 22 June 1994, the presiding member of the panel ruled that no oral proceedings would be held in the case; Whereas the facts in the case are as follows: The Applicant entered the service of the Organization on 23 May 1974, as an Associate Economic Affairs Officer at the P-2, step 1 level, in the United Nations Economic Commission for Africa, at Addis Ababa. On 1 February 1975, he was granted a probationary appointment and on 1 March 1976, a permanent appointment. The Applicant was promoted to

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the P-3 level, with effect from 1 April 1977. On 1 April 1978, he was transferred to UNCTAD in Geneva, as an Economic Affairs Officer in the Minerals and Metals Branch of the Commodities Division. He was promoted to the P-4 level, with effect from 1 April 1981. In a memorandum dated 29 January 1988, the Secretary-General of UNCTAD announced to the staff that a reorganization would be conducted within the UNCTAD Secretariat. On 1 February 1988, the Officer-in-Charge of the Commodities Division (who had recently been transferred from another division) invited staff members of the Division to submit their views on the reorganization. On 9 March 1988, the Secretary-General of UNCTAD held a general meeting for UNCTAD staff, to explain the principal aims of the reorganization. In a communication dated 20 May 1988, the Secretary-General of UNCTAD announced to the staff his plan for the reorganization of the Secretariat, the "main decisions on reorganization" and "how and when they are to be implemented". Section III of that communication explained the new structure of the Commodities Division where the Applicant worked. According to the record, on 15 June 1988, the Officer-in-Charge met with the staff to discuss the reorganization and on 22 June 1988, the Applicant met with the Director of Programme Support and Management Services concerning his career development prospects in light of the forthcoming reorganization of the Commodities Division. On 30 June 1988, the Officer-in-Charge of the Commodities Division informed all its staff of "the new structure of the Division, as approved by the Secretary-General... as shown in the attached chart". According to the chart, the Applicant had not been appointed Chief of Section (Officer-in-Charge) of the Ferrous Minerals and Metals Section. On 12 December 1988, the Applicant requested the SecretaryGeneral of the United Nations to review the administrative decision not to appoint him Officer-in-Charge of the Ferrous Minerals and Metals Section. In a reply dated 25 April 1989, the Assistant Secretary-General for Human Resources Management informed the Applicant that the Secretary-General had decided to maintain the decision. He stated, inter alia, that "staff members are subject to assignment by the Secretary-General to any of the activities or offices of the United Nations and, consequently, do not have a right to any particular post or assignment The decision not to designate [the Applicant] Officer-in-charge of the Ferrous Minerals and Metals Section was, therefore, within the authority of the Secretary-General of UNCTAD ... as there is no evidence to substantiate ... that his decision not to appoint [the Applicant] Officer-in-charge ... resulted from prejudice ..."

Judgement No. 639

47

On 27 June 1989, the Applicant lodged an appeal with the Geneva Joint Appeals Board (JAB). The JAB adopted its report on 6 February 1992. Its conclusions and recommendations read, in part, as follows: "Conclusions and recommendations 38. ... the Panel unanimously: (b) Concludes that the restructuring of UNCTAD was carried out within the discretionary authority of the UNCTAD Secretary-General; (c) Further concludes that adequate consultation took place in this respect; (d) Finally, concludes that the Appellant was unable to substantiate his claim that the contested decision was vitiated by prejudice and other extraneous factors. 39. Accordingly, the Panel makes no recommendation in support of the appeal." On 20 February 1992, the Director, Office of the Under-SecretaryGeneral for Administration and Management, transmitted to the Applicant a copy of the JAB report and informed him as follows: "The Secretary-General has re-examined your case in the light of the Board's report. He fully shares the Board's conclusions and has therefore decided, in accordance with its recommendation, not to accept your appeal." On 29 August 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The JAB erred in concluding that adequate consultation took place at the Applicant's level and that the Applicant had not substantiated that the decision was vitiated by prejudice and other extraneous factors. 2. The methodology used to restructure the Commodities Division overlooked relevant General Assembly resolutions and disregarded administrative instructions. 3. The Officer-in-Charge of the Commodities Division was prejudiced against those with certain racial backgrounds, which affected his assessment of the Applicant's supervisory ability. Whereas the Respondent's principal contentions are: 1. The reorganization fell within the discretionary powers of the Respondent, and would be open to challenge only if tainted with prejudice or improper motive.

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2. The selection of staff for a particular post is the exercise of a discretionary power by the Respondent and can be challenged only if it is tainted with prejudice or improper motive. 3. Staff members have no right to be assigned to any specific post. 4. The Applicant's claim of prejudice is not supported by any credible evidence. The Tribunal, having deliberated from 21 June to 13 July 1994, now pronounces the following judgement: I. The Applicant's principal contention is that the proper method for restructuring the Commodities Division was not followed, as the Secretary-General of UNCTAD failed to apply the guidelines established by the relevant General Assembly resolutions and by administrative instructions. Therefore, the Tribunal must examine, in the first place, whether UNCTAD followed proper procedures, as stipulated in the relevant documents. II. The Applicant refers to certain documents dealing with the reorganization of UNCTAD, claiming that the Respondent did not follow directives found therein when he restructured the Commodities Division. These documents are: — The Secretary-General's bulletin ST/SGB/150/Rev.l, dated 1 June 1977, entitled "Changes in the Functions and Organization of Secretariat Units". — Administrative instruction ST/AI/338, dated 22 December 1986, entitled "Vacancy Management and Staff Redeployment". — General Assembly resolution 43/224/A, dated 21 December 1988, entitled "Personnel Questions". III. As indicated in a memorandum dated 20 May 1988, from the Secretary-General of UNCTAD, implementation of the reorganization was to proceed in conformity with the administrative and management procedures set out in ST/SGB/150/Rev.l. This memorandum also indicated that arrangements at the Division and Programme level would be carried out "on the basis of recommendations emerging from consultative processes . .. which will permit staff members to express their views on issues of concern to them." In the Tribunal's view, this directive was followed and consultations took place on several occasions. IV. By memorandum dated 1 February 1988, staff members were invited to submit their views on the restructuring of the Division. The then Officer-in-Charge of the Division also met with each staff member individually to seek his or her views.

Judgement No. 639

49

In March, the Secretary-General of UNCTAD invited all staff members to a meeting to discuss the reorganization plan. He replied to questions put to him. In May 1988, the Deputy-Director of the Commodities Division discussed, with the staff, the proposed reorganization and assignments. Although the Applicant was absent during this time, the Tribunal is not convinced that his absence caused him any harm, as the discussions held during this time do not appear to have been conclusive. As stated by the Secretary-General of UNCTAD in the 20 May memorandum, the internal structure of the Commodities Division was to be determined, after further consultations. These consultations took place on 15 June 1988, when the then Officer-in-Charge outlined a proposal for reorganization to the staff. V. The Applicant also consulted the Director of Programme Support and Management Services and the Secretary-General of UNCTAD, regarding the effect of the reorganization proposal on his career prospects. Following this last meeting, the Applicant met once again with the then Officer-in-Charge to discuss the matter. In light of the above, the Tribunal is satisfied that appropriate consultations were held with the staff regarding the reorganization of the Commodities Division, in conformity with the Secretary-General's Bulletin ST/SGB/150/Rev.l. VI. The Tribunal agrees with the JAB's view that administrative instruction ST/AI/338, on Vacancy Management and Staff Redeployment, was not violated in the present case because the reorganization of the Commodities Division did not result in the availability of a vacant post of Chief of Section for which the Applicant might have applied. The Chief of the Division reassigned another staff member, which he was entitled to do, according to paragraph 3 of the above-mentioned instruction. VII. As the JAB noted, General Assembly resolution 43/224/A was adopted after the reorganization of UNCTAD and after the submission of the Applicant's request for review of the decision not to appoint him Chief of Section. This General Assembly resolution cannot therefore be applied to his case. VIII. Nevertheless, as requested by the Applicant, the Tribunal has reviewed General Assembly resolution 43/224/A. It calls inter alia for the need to maintain the principle of equitable geographical distribution in the upper echelons of the Secretariat, and for improved representation of developing countries at senior levels. It underscores the importance of a geographically balanced international civil service. The Applicant claims that the reorganization of the Commodities Division did not conform to these criteria. The Tribunal is unable to find anything in the documentation to support the Applicant's claim.

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Administrative Tribunal of the United Nations

IX. The Applicant's second contention is that due to discrimination or prejudice on the part of the Officer-in-Charge of the Commodities Division, he was bypassed in the selection process for the post of Officer-in-Charge of the Ferrous Minerals and Metals Section. The Applicant claims that the Officer-in-Charge of the Commodities Division had a deeply-seated prejudice against staff members of certain racial background. However, the evidence put forward does not support his claim. On the contrary, the Applicant himself wrote in his rebuttal letter of 29 December 1989, that he "always had cordial working relations" with the Officer-in-Charge. In addition, it is inferred from this letter that the Applicant believed that the Officer-in-Charge was acting in good faith and did not seem to hold a personal bias when he re-organized the Division. In fact, the Applicant believes that other constraints seem to have motivated his decision. His letter states inter alia: "From the situation which [the Officer-in-Charge] explained to me, there was no question of supervisory ability as a factor in his decision for not recommending me for a supervisory assignment. On the contrary, I was given to understand that he faced a number of constraints, including pressure from outside the Commodities Division, and he also said that I should wait." X. In claims of prejudice or discrimination, the burden of proof is on the party alleging it. Hence, in order to succeed, the Applicant must prove the existence of prejudice or discrimination. Unless the Applicant can demonstrate that the reorganization was tainted by prejudice or some other improper motive, the reorganization of an office falls within the discretionary powers of the Administration. The Tribunal will not examine whether a given office should be organized in any particular way or whether better results would be obtained if a reorganization took or failed to take place. (Cf. Judgement No. 117, Van der Valk (1968), Judgement No. 350, Raj (1985) and Judgement No. 412, Gross (1988).) XI. The only document produced by the Applicant, in support of his claim of discrimination, is a chart entitled "Patterns of promotion in the UNCTAD Secretariat at the P-5 level, 1973-1984". The relevance of this document is unclear. It does not show that the Applicant suffered discrimination in the context of the restructuring. XII. The Applicant further contends that due to the restructuring of the Commodities Division, his career prospects have been damaged. However, in its Judgement No. 350, Raj (1985), the Tribunal held that "the mere fact that a reorganization may hinder the prospects or in any way affect the career of a staff member does not necessarily point to the existence of discrimination or improper motives in the Administration and thus, does not in itself give grounds for any claim against the decision taken." The Tribunal emphasizes that the evaluation and selection of a staff member

Judgement No. 639

51

for a particular post rests within the discretionary authority of the SecretaryGeneral and that such a decision can be challenged only on the grounds of prejudice or improper motive (Judgement No. 312, Roberts (1983)). XIII. The Applicant has asked the Tribunal to look for the motivation behind the selection of the Chief of Section. The Applicant does not dispute the Officer-in-Charge's discretionary authority to reassign staff within the division for which he is responsible. What he claims is that this discretion is not absolute. The Tribunal notes in this regard that the Officer-in-Charge's discretion was not absolute. He had to abide by certain rules of fairness and administrative procedures before he was able to make his decisions. As is pointed out by C.F. Amerasinghe in The Law of the International Civil Service (Vol. I, pp. 357-358): "What all discretionary decisions have in common is that a 'fair' procedure or 'due process' be followed when they are taken, fairness or the appropriateness of process being relative to the nature of the decision taken." XIV. The Applicant has the onus of proving that he was not selected Officer-in-Charge of his section due to extraneous factors, such as prejudice, improper motive or discrimination. He did not provide sufficient proof to discharge that onus. Therefore, this claim must also fail. XV. With respect to the Applicant's claim for compensation for a service-incurred medical condition, he must turn to the Advisory Board on Compensation Claims. The Tribunal is not the proper forum to deal with such a claim at this stage. XVI. The Tribunal concludes that the reorganization of the Commodities Division, as well as the decision not to assign the Applicant as Officer-in-Charge of the Ferrous Minerals and Metals Section, were not tainted with prejudice or other improper motive. The Tribunal finds that the claim for compensation for a service-incurred injury is not properly before the Tribunal. XVII. For the foregoing reasons, the Tribunal rejects the application in its entirety. (Signatures) Luis de POSADAS MONTERO

Vice-President, presiding Mayer GABAY Member Geneva, 13 July 1994

Mikuin Leliel BALANDA

Member R. Maria VlClEN-MlLBURN Executive Secretary

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Administrative Tribunal of the United Nations

Judgement No. 640 (Original: English) Case No. 728: Mourad

Against:

The Secretary-General of the United Nations

Application of a former staff member of the United Nations (Economic and Social Commission for Western Asia—ESCWA) for rescission of the decision not to extend his fixed-term appointment, for reinstatement and for compensation for the injury sustained. The Joint Appeals Board found, by majority vote, that the contested decision had not violated the Applicant's rights.—It recommended payment of compensation equal to salary for the period from the expiry of the Applicant's appointment until his return from Baghdad where he went to retrieve his personal effects, as other staffmembers of ESCWA.—Decision to pay compensation in lieu of one month notice of non-renewal which the Applicant should have received. Having considered the circumstances in which the Applicant's fixed-term appointment for two years was subsequently reduced to eighteen months, the Tribunal concludes that a two-year appointment had clearly been intended and awards to the Applicant compensation in the amount of six months of his final net salary.—The Tribunal considers, in view of all the circumstances, that the fact that the Applicant did not register a complaint at the time this shorter term was decided does not bar him now to contest it, in the context of his separation.—Applicant's contention that his separation was based on an arbitrary and capricious decision and that, the decision having been flawed, the onus to prove that it was justified shifts to the Administration.—The Tribunal does not find sufficient basisfor concluding that the decision was flawed.—However, the circumstances were such that the Applicant could have been left with a misleading impression that his prospects of renewal were good; this caused him an injury for which compensation in the amount of six months of his final net salary is awarded. Award of compensation equal to 12 months of net base salary at the time of Applicant's separation from service.—All other pleas rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Hubert Thierry; Mr. Francis Spain; Whereas at the request of Mohamed Jalal Mourad, a former staff member of the United Nations, the President of the Tribunal, with the agreement of the Respondent, successively extended to 30 April and 31 July 1993 the time-limit for the filing of an application to the Tribunal; Whereas, on 3 May 1993, the Applicant filed an application requesting, inter alia: ''

Judgement No. 640

53

(a) That the Tribunal consider the amendment reflected in (P-5) Personnel Action No. E9W-495, issued on 10 September 1989 (...), as null and void, since it purported to implement unauthorized changes in the contractual relationship between the Administration and the Applicant. .. (b) That the Tribunal consider the 'temporary repatriation' of the Applicant effective August 1990 as null and void ... (c) That the Tribunal consider the separation of the Applicant as having been based on an arbitrary and capricious decision ...

(d) ... (e) That the Tribunal order that the decision to separate the Applicant be rescinded and that he be reinstated in his previous post retroactively to the date of separation; (f) Alternatively that adequate compensation be ordered for the injury sustained by the Applicant of not less than two years' net base salary, bearing in mind what the Administration would have had to pay as contribution to the Pension Fund for the period in question." Whereas the Respondent filed his answer on 10 November 1993; Whereas the Applicant filed written observations on 21 November 1993; Whereas, on 7 December 1993, the Respondent submitted a document requested by the Applicant; Whereas the facts in the case are as follows: The Applicant entered the service of the United Nations on 1 August 1988, as an Economic Affairs Officer under a six-month fixed-term appointment at the P-4, step I level in the Natural Resources/Science and Technology Division of the Economic and Social Commission for Western Asia (ESCWA) in Baghdad, Iraq. Upon the recommendation of the Appointment and Promotion Board, and after approval by the Secretary-General, the Deputy Director, Recruitment and Placement Division, Office of Human Resources Management, by cable dated 9 March 1989, authorized ESCWA to offer the Applicant a two-year fixed-term appointment at the P-4, step VI level. A Personnel Action form was issued on 12 March 1989, by ESCWA, implementing an extension of the Applicant's appointment for two years, through 31 January 1991. The Applicant, on 12 March 1989, signed a letter of appointment for a fixed-term of two years, through January 1991. On 10 September 1989, ESCWA issued a new Personnel Action form, amending the Personnel Action form of 12 March 1989, "to reflect correct duration of appointment to read one year and six months",

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Administrative Tribunal of the United Nations

through 31 July 1990 and not 31 January 1991. The Applicant, on 21 September 1989, signed a new letter of appointment for a fixed term of one and a half year, through 31 July 1990. The Applicant's appointment was then extended for a further fixed-term period of one year, through 31 July 1991. In a memorandum dated 12 June 1991, the Chief, Division of Administration, asked the Executive Secretary whether the Applicant's appointment should be extended beyond 31 July 1991. On 13 June, the Executive Secretary, in a handwritten answer, stated: "take necessary arrangements for no extension." During the evacuation of ESCWA staff from Baghdad, as a result of the Persian Gulf crisis, the Applicant was repatriated to Damascus, in August 1990. He remained in Damascus until the expiration of his contract on 31 July 1991. On 28 July 1991, UNDP Damascus was asked by the Acting Chief of Personnel, ESCWA, to inform the Applicant that he was not among the ESCWA international staff requested to report for duty in Amman since his fixed-term appointment expired on 31 July 1991. On 7 August 1991, the Applicant requested the Secretary-General to review the administrative decision not to extend his appointment. Not having received a substantive reply, on 9 December 1991, the Applicant lodged an appeal with the Joint Appeals Board (JAB). The JAB adopted its report on 22 October 1992. The conclusions and recommendations of the majority of the Panel read as follows: "18. The majority of the Panel concluded that the decision not to renew the Appellant's contract did not violate his rights, including his right to due process. 19. The majority of the Panel also concluded that, under the terms and conditions of the Appellant's employment, he had no right to the renewal of his appointment and that he was not given any reasonable expectancy of continued employment by the Organization. 20. However, the majority of the Panel took into consideration the fact that other staff members serving in ESCWA who had their contracts extended, were authorized by ESCWA to go to Baghdad to retrieve their personal effects. The majority of the Panel, therefore, recommends that the Appellant be paid compensation, equal to his salary, covering the period from 1 August 1991 through the date of his return to Syria from Baghdad, where he had gone to retrieve his personal effects, and that, in all other aspects, the appeal be rejected." In a dissenting opinion, dated 19 October 1992, a member of the Panel concluded:

Judgement No. 640

55

8. In view of the series of inconsistencies and evasive replies [by the Administration], I cannot but conclude that indeed the Appellant had a legal expectancy of continuing service, that he did not receive the fullest regard for renewal of his fixed-term appointment beyond July 1991, and that, consequently, the decision to terminate him was vitiated by prejudice, improper motives and extraneous considerations." On 23 November 1992, the Director of Personnel transmitted to the Applicant a copy of the Board's report and informed him as follows: "The Secretary-General has examined your case in the light of the Board's report, including the dissenting opinion. He concurs with the majority conclusion that you had no right to the renewal of your appointment and that you had not been given any reasonable expectancy of continued employment by the Organization. Although, under your terms of appointment, your contract expired automatically and without prior notice on the expiration date specified in your letter of appointment, the Secretary-General finds that, under the exceptional circumstances of your case, you should have been informed in advance of the Administration's intention not to renew your contract. Accordingly, the Secretary-General has decided that you should be paid compensation in lieu of the one month notice period which would have been appropriate under the circumstances." On 3 May 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Respondent's decision to separate him was "arbitrary and capricious", and, therefore, he should be reinstated in his post, or paid adequate compensation. 2. The Applicant's second fixed-term appointment constituted an arbitrary substitute for the existing fixed-term appointment, which he had been given pursuant to a recommendation by the Appointment and Promotion Board and which had been approved by the Secretary-General. 3. A new staff member, especially in a regional office, should not have to suspect that a document he is asked to sign by the Respondent is invalid and would prejudice his entitlements and rights. Whereas the Respondent's principal contentions are: 1. The Applicant had no legal expectancy to renewal of his fixed-term appointment. 2. The decision not to renew the Applicant's appointment was not vitiated by improper motives.

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Administrative Tribunal of the United Nations

3. The Applicant has been granted adequate compensation for not being informed in advance of the non-renewal of his appointment. The Tribunal, having deliberated from 24 June to 13 July 1994, now pronounces the following judgement: I. The Tribunal must first examine the shortening of the original two-year fixed-term appointment, starting on 1 February 1989 and ending on 31 January 1991. The Respondent sought to curtail this apparent two-year appointment by six months. II. There was an initial appointment for six months, starting on 1 August 1988 and expiring on 31 January 1989. A letter of 26 October 1988, from the Chief, Division of Administration, ESCWA, Baghdad to the Chairman of the Appointment and Promotion Committee, has as its subject "two years fixed-term appointment". The letter refers to eight applications for the post. In another letter of 1 February 1989, i.e. the day after the first contract had come to an end, the Chairman of the Appointment and Promotion Board recommended to the Appointment and Promotion Committee that the Applicant be given a two-year fixed-term appointment. III. On 23 February 1989, the Appointment and Promotion Board recommended the Applicant for a two-year fixed-term appointment. The Personnel Action form, dated 12 March 1989, notes the effective date as 1 February 1989 and it mentions the extension of the fixed-term appointment for a two-year period. Nevertheless, another Personnel Action form, dated 10 September 1989, purports to amend the two-year period to one year and six months, leaving the effective starting date still as 1 February 1989. IV. The Applicant asks that this amendment be found null and void since it sought to implement unauthorized changes in the contractual relationship between the parties. The Respondent says that the first appointment for a six-month period was made in anticipation of the expected approval by the Secretary-General of a two-year appointment, on the recommendation of the Appointment and Promotion bodies. When the approval was received, the Personnel Action form dated 12 March 1989, erroneously reflected, according to the Respondent, an extension of two years instead of eighteen months, which would have taken into account the six months already served. The Personnel Action form dated 10 September 1989, was a correction of this technical error. The Respondent also refers to the Applicant's signing the letter of appointment dated 21 September 1989, accepting a fixed-term contract of 18 months. V. The Tribunal cannot accept the Respondent's explanation that it was initially intended that the first period of six months was to form part of a two-year appointment to have commenced on 1 August 1988. Nor can the Tribunal accept that the commencement date was to have been

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57

1 February 1989 and that the appointment was to have been for eighteen months. VI. If this were the case, the question must be raised as to why eight applicants were still being considered for the post in October 1988, after, according to the Respondent's argument, the term of the appointment had, in effect, already begun. Moreover, if the appointment were to be taken as genuinely an eighteen-month appointment, it is strange that every letter and document, with the exception of the Personnel Action form dated 10 September 1989, mentions a two-year appointment in a context that can only reasonably be interpreted as referring to the future. VII. The fact that the Applicant signed a letter of appointment referring to the eighteen-month extension is overwhelmed by an abundance of evidence which suggests that this shorter term was not initially intended. It is obvious to the Tribunal that the Applicant, as an employee, must have perceived himself to have been in the weaker position vis a vis his employer. Also, the Applicant must have harboured hopes for his future with the Organization. The Tribunal considers that the failure of the Applicant to register a complaint at that time does not bar him from making the claim now, in the context of his separation. The difference between an eighteen-month and a two-year fixed-term contract had no apparent consequence to him at the time of the extension. The harm occurred to the Applicant at the time of his separation. The Tribunal finds, therefore, that the claim is not time-barred. VIII. The Administration subsequently granted the Applicant his final one-year appointment. As the preceding appointment properly expired on 31 January 1991, this new appointment should have begun on 1 February 1991. The Applicant should therefore have held a fixed-term appointment through 31 January 1992. IX. The Applicant does not argue that he had a legal expectancy of re-appointment. He asserts, however, that his separation was based on an arbitrary and capricious decision and, contrary to the Respondent's contention, was not the result of a fair and objective reorganization dictated by the exigencies of the service. The Applicant also contends that where circumstances indicate that the Administration's decision was flawed, the onus shifts to the Administration to show that the decision was fully justified. X. The Administration has explained that its non-extension of the Applicant's appointment was dictated by the re-orientation of ESCWA programmes in Science and Technology, according to the needs of the region. It maintains that the programme required the services of an engineer rather than those of a professional economist and that, in any case, a permanent staff member was available to provide the latter.

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XL However, the Chief of the Natural Resources Science and Technology Division, under whose supervision the Applicant had worked, was of the opinion that the Applicant could easily have been retained in his own post which was redeployed. He noted that the new job description stated that the qualifications required were those of a geologist or an economist and that the Applicant fit this description. XII. While the Tribunal is not entirely convinced by the Administration's claim that the work required an engineer in the light of the qualifications listed in the job description, it does not find this a sufficient basis for concluding that the decision was flawed. It does not erode, much less negate, the Administration's position that the decision resulted from an assessment of what a fair and objective reorganization required. XIII. Nevertheless, the wording of the job description was such that the Applicant could well have been left with the impression that his prospects were good, although the Administration had already made its decision not to engage an economist. To leave him with such a misleading impression caused injury to him for which he deserves compensation. The Tribunal assesses this compensation at a figure equivalent to six months of his final net base salary. XIV. The Tribunal notes the JAB's finding that the Applicant should receive reimbursement of expenses incurred for having had to go to Baghdad to retrieve his personal effects and is in agreement with this finding. This sum has already been paid. XV. Finally, another element of compensation arises from the curtailment of the last six months of the Applicant's two-year appointment. For this, he is entitled to six months of his final net base salary. XVI. For the foregoing reasons, the Tribunal orders the Respondent to pay to the Applicant a sum equivalent to 12 months of his net base salary at the rate in effect at the time of his separation from service. XVII. The Tribunal rejects all other pleas. (Signatures) Samar SEN President Francis SPAIN Member

Hubert THIERRY Member R. Maria VlClEN-MlLBURN Executive Secretary

Geneva, 13 July 1994

Judgement No. 641

Judgement No. 641

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(Original: English) Case No. 714: Farid

Against:

The Secretary-General of the United Nations

Application of aformer staff member of the Office of the United Nations High Commissioner for Refugees (UNHCR)for reinstatement and for compensation for the injury sustained and for unreasonable delays before the Joint Appeals Board. The Joint Appeals Board found that the decision to place the Applicant on special leave with pay was at variance with the Staff Rules and recommended that the Secretary-General should take this finding into consideration.—No further action was taken on this appeal.—In a second appeal, against the decision of summary dismissal for misconduct, the Board found irregularities in the procedure and undue delay and recommended the payment of a termination indemnity.—Recommendation rejected; decision to pay 2,000 $ as compensation for unsatisfactory aspects of the appeal process. The Tribunal examines whether the Applicant's dismissal was proper.—Article 101 of the Charter and staff regulation 1.4 lay down standards of integrity required of staff members.—Under staff regulation 10.2 the Secretary-General may impose disciplinary measures on staff members who do not satisfy these standards; the choice of disciplinary measures, including the right to terminate an appointment, falls within the Secretary-General's discretionary powers (Judgements No. 424—Ying, No. 425—Bruzual and No. 429—Beyele).—Reminder of the reasons of the Applicant's dismissal.—The Tribunal recalls its jurisprudence on the burden of proof in such cases (Judgement No. 479—Caine): the Respondent is not required to prove beyond any reasonable doubt a patent intent to commit irregularities or that the Applicant was solely responsible for them; the Tribunal will only determine whether the Secretary-General's action was vitiated by any prejudicial or extraneous factors, by significant procedural irregularity or by a significant mistake of fact.—The Tribunal finds that due process was respected by the Respondent and that the Applicant did not provide any evidence of prejudice or extraneous factors.—The Applicant should have been suspended from duty rather than placed on special leave with pay, but this procedural irregularity did not affect his interests adversely.—The Tribunal is satisfied that the Respondent had good reasons to decide that the Applicant should not be present at the audit of alleged irregularities.—The Tribunal finds that the delay in the proceedings before the Joint Appeals Board was due to the Applicant's attitude.—The Tribunal concludes that the Applicant's dismissal was within the broad discretionary powers of the Respondent in disciplinary matters and that it was based on an examination of facts free from prejudice and bias.—It was within the authority of the Secretary-General's to reject the recommendation of the Joint Appeals Board to grant the Applicant a termination indemnity, as the recommendations of the Board are advisory. Application rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Francis Spain; Mr. Mayer Gabay;

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Whereas at the request of Ghulan Farid, a former staff member of the Office of the United Nations High Commissioner for Refugees, hereinafter referred to as UNHCR, the President of the Tribunal, with the agreement of the Respondent, successively extended to 31 December 1992, 31 January and 28 February 1993 the time-limit for the filing of an application to the Tribunal; Whereas, on 26 February 1993, the Applicant filed an application requesting the Tribunal, inter alia: (9) To order the Respondent: (a) To... re-instate him... retroactive from 26 March 1986. .. pursuant to staff rule 104.3(b). (b) To pay the Applicant, in lieu of specific performance under item (a) above, three years' net base salary as at the time of his separation from UNHCR, and appropriate indemnity, pursuant to Annex III to the Staff Regulations, as recommended by the JAB [Joint Appeals Board]... (10) To award him appropriate and adequate compensation for the material and moral injuries suffered by him . . . (11) To award him appropriate and adequate compensation for the unreasonable delays in the JAB procedures for over six years Whereas the Respondent filed his answer on 15 April 1994; Whereas the Applicant filed written observations on 31 May 1994; Whereas the facts in the case are as follows: The Applicant entered the service of UNHCR on 20 May 1980, as an Administrative Assistant on a short-term appointment, at the GL-5 level, at the Islamabad Office. He served on a series of short-term and fixed-term appointments until 1 January 1983, when he was granted an indefinite appointment. The Applicant's grade and level were readjusted to GL-7, step III, with retroactive effect from 1 March 1981, when his functional title became Senior Administrative Assistant. The Applicant was dismissed for misconduct under staff rule 110.3(b) in force at the time, with effect from 25 March 1986. On 25 July 1983, the Chief of Mission at the Islamabad Office informed the Applicant that information had been received that he had been dismissed for misconduct from the British Embassy in 1977. It was noted that he had withheld this fact from UNHCR at the time of his recruitment, that no reference of good service had been given to him by the British Embassy, and that the document he had submitted to UNHCR upon re-

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cruitment was "not authentic". Accordingly, he was being suspended from duty with pay, pursuant to staff rule 110.4, pending investigation. The Applicant was asked to give his version of the matter and to contact the Chief or the Deputy Chief of Mission as soon as possible. In replies dated 28 July and 29 August 1983, the Applicant denied the allegations against him. On 22 August 1983, the Applicant requested the Secretary-General to review the decision to suspend him from duty. In a cable dated 29 December 1983, the Director of the Division of Personnel Administration at Headquarters asked the Chief of Mission, UNHCR, Islamabad, to inform the Applicant that the decision to suspend him from duty with pay pending disciplinary investigation was correct under staff rule 110.4 and personnel directive PD/1/76. However, it had been determined that the requirements for disciplinary action had not been met. As his case was, therefore, no longer disciplinary, his suspension with pay would cease and he would return to duty, unless the best interests of the Organization required UNHCR to put him on special leave with full pay under staff rule 105.2 pending a further decision. On 2 January 1984, the Chief of Mission at the Islamabad Office informed the Applicant as follows: "I am directed by UNHCR Headquarters to inform you that with immediate effect you have been placed on special leave with full pay under staff rule 105.2, in the best interest of the organization, and pending a final decision on your case." On 12 January 1984, the Applicant requested the Secretary-General to review the decision placing him on special leave with full pay. On 15 March 1984, the Assistant Secretary-General for Personnel Services informed the Applicant that this decision would be maintained. Meanwhile, on 28 February 1984, the Applicant lodged an appeal with the Joint Appeals Board (JAB) against this decision. The JAB adopted its report on 29 May 1986. Its conclusions and recommendations read, in part, as follows: '' 32. In view of the findings of the Board that Appellant was placed on special leave with pay at variance with the Staff Rules, the Board recommends that the Secretary-General consider the implications of the Board's findings with regard to the subsequent decision affecting Appellant's employment status." On 30 October 1986, the Assistant Secretary-General for Personnel Services transmitted to the Applicant a copy of the JAB report and informed him as follows:

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"The Secretary-General, having re-examined your case in the light of the Board's report, has decided to take no further action on your appeal. The Secretary-General's decision is based on the fact that you have already received full pay for more than two years without being required to work, which is more than adequate compensation for a possible misinterpretation by UNHCR of staff rule 105.2(a) on special leave without pay." In the meantime, on 3 February 1984, the Chief of the Geneva Service of the Internal Audit Division conducted an audit of the administrative activities of the UNHCR Office in Islamabad from 1 January 1982 to 31 August 1983. He also investigated the alleged non-disclosure of prior misconduct and forgery of a reference relating to the Applicant's previous employment with the British Embassy. As a result of the audit and the investigation, the Head of UNHCR Personnel Services, pursuant to the provisions of Personnel Directive PD/1/76, wrote to the Applicant, on 19 April 1984, reiterating the allegations in connection with his prior employment with the British Embassy. He also informed him of the discovery of financial irregularities and malpractices allegedly committed by the Applicant at the UNHCR Office. In a reply dated 27 September 1984, the Applicant, inter alia, objected to UNHCR's "re-opening" of the matters concerning his previous employment with the British Embassy. He also objected to not being provided with the complete audit report and other documentation relating to the allegations against him. He denied all the charges. On 20 May 1985, the Head of UNHCR Personnel Services transmitted to the Applicant, for his comments, the final report of the audit and investigation. The report cited the non-disclosure of prior misconduct and referred to the submission of a forged reference. It also stated, inter alia, that the Applicant violated UNHCR rules governing cash management, e.g. in connection with payments to suppliers; failed to exercise proper control over the use of UNHCR tax exemption certificates; failed to use adequate competitive bidding procedures for selecting local suppliers; failed to properly maintain records and provide adequate justification for the use and servicing of vehicles; and failed to properly account for spare parts. On 13 June 1985, the Applicant provided his comments on the report. On 25 March 1986, the Assistant Secretary-General for Personnel Services at Headquarters informed the Applicant as follows: "I regret to inform you that the Secretary-General has decided to dismiss you for misconduct as a disciplinary measure under staff rule 110.3(b).

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The Secretary-General's decision was taken upon his finding that you misrepresented facts about your previous employment, mismanaged cash and other assets of the United Nations High Commissioner for Refugees, and failed to ensure the regularity of financial matters entrusted to you. The Secretary-General concluded that you failed to maintain the standards of conduct incumbent upon international civil servants, and that your actions were incompatible with your continued employment. The dismissal is effective on the date of notice. You will be given compensation in lieu of one month's written notice of termination in accordance with staff rule 109.3(b). The Secretary-General has decided that in view of the serious and continuing nature of the offences, and in view of the length of your absence from duty on full pay, no termination indemnity shall be paid under Annex III, paragraph (c) of the Staff Regulations." On 5 June 1986, the Applicant lodged an appeal with the JAB against the decision to dismiss him for misconduct. The JAB adopted its report on 9 June 1992. Its considerations and recommendation read, in part, as follows: "Considerations 22. The Panel held the view that, if it could be proved that the Appellant was involved in mismanagement of UNHCR assets and accounting irregularities, his dismissal would be amply justified. The Panel therefore did not find it necessary to pronounce itself on whether the Administration was also justified in relying upon the allegedly misrepresented facts about the Appellant's previous employment with the British Embassy as an additional ground of dismissal. 24. The Panel was of the opinion, however, that such irregularities could not have been committed by the Appellant without a degree of laxity on the part of his supervisors, taking into account the degree of confidence shown towards the Appellant (as indicated by his good evaluations and promotion record). It is noted that whatever was prepared and signed by the Appellant had also been seen and countersigned by his supervisors ... 25. The Panel noted that the procedure whereby the Appellant was placed on special leave for an unspecified duration, was irregular, as found in the earlier JAB case .. . The correct procedure would have been to suspend the Appellant from service. The Panel also noted that the audit investigation took place at the request of the UNHCR, at a time when the Appellant was on special leave.

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Administrative Tribunal of the United Nations 27. . . .The Panel agreed that although the Appellant was on full pay status during his suspension, the undue delay in this case must have caused him significant mental anguish and considered it appropriate that compensation be granted to the Appellant.

Recommendation 29. The Panel therefore recommends that a termination indemnity, to be calculated in accordance with the criteria set out in Annex III to the Staff Regulations, be granted to the Appellant. 30. The Panel makes no further recommendation in support of this appeal." On 13 August 1992, the Assistant-Secretary-General for Human Resources Management informed the Applicant, inter alia, as follows: "The Secretary-General has re-examined your case in the light of the Board's report. He agrees with the Board's findings that the applicable procedures had been followed prior to the termination of your appointment for misconduct, and that there was no evidence of prejudice. However, bearing in mind that: (vi) Under Annex III(c) to the Staff Regulations, payment of one half of the normal termination indemnity to a staff member who is dismissed for disciplinary reasons is at the discretion of the Secretary-General, who finds it would not be appropriate to make such a payment in your case, the Secretary-General cannot accept the Board's conclusion that your due process rights were not respected. He must reject the recommendation that you be paid a termination indemnity calculated in accordance with the criteria set out in Annex III to the Staff Regulations. However, because part of the delays in considering your appeal can be attributed to unsatisfactory aspects of the appeal process, the Secretary-General has decided that you should be paid an amount of $2,000." On 26 February 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Respondent chose to conduct his investigation under the PD/1/76 procedure rather than through the Joint Disciplinary Committee at the United Nations Office in Geneva, thereby denying the Applicant due process in accordance with Chapter X of the Staff Rules then in force.

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2. The Respondent determined that there was no substantial evidence on record to justify disciplinary measures in connection with the Applicant's alleged misconduct in his prior employment with the British Embassy. 3. The penalty of summary dismissal, in the face of gross procedural irregularities under PD/1/76, was far out of proportion to the alleged misconduct, which had never been established by the Respondent under PD/1/76. 4. The Applicant suffered on account of the inordinate delays by the Administration in handling the case. Whereas the Respondent's principal contentions are: 1. The Secretary-General has broad discretion with regard to disciplinary matters, and this includes determinations of what constitutes misconduct warranting dismissal. 2. The Secretary-General's decision to dismiss the Applicant was a valid exercise of that discretionary authority, and was not vitiated by a mistake of fact, by lack of due process or by prejudice or any other extraneous factors. The Tribunal, having deliberated from 24 June to 13 July 1994, now pronounces the following judgement: I. The substantive issue in this case is whether the Applicant's dismissal was proper. Article 101 of the United Nations Charter vests in the Secretary-General the responsibility for appointment of staff members who must meet "the highest standards of efficiency, competence and integrity." In addition, staff regulation 1.4 states: "Members of the Secretariat shall conduct themselves at all times in a manner befitting their status as international civil servants. They shall not engage in any activity that is incompatible with the proper discharge of their duties with the United Nations. They shall avoid any action... which may adversely reflect on their status, or on the integrity, independence and impartiality which are required by that status..." II. Should staff members fail in their obligation to satisfy these standards of conduct, staff regulation 10.2 provides that the Secretary-General may impose disciplinary measures on them. The choice of disciplinary measures, including the right to terminate an appointment, falls within the Secretary-General's discretionary powers. (Cf. Judgement No. 424, Ying (1988); Judgement No. 425, Bruzual (1988) and Judgement No. 429, Beyele (1988).) III. The Applicant was dismissed principally for his failure to be truthful about his prior employment, supplying an allegedly forged letter

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of reference, and for committing financial irregularities in the course of his employment. The Applicant maintains throughout that there was a cover-up concerning the financial irregularities, alleging that other staff members were also involved. His feeling of being singled out for persecution by officials at the UNHCR office in Islamabad was commented upon by the JAB in the following terms: "... It is also unfortunate that the Appellant may have been left with the impression that he was chosen to be a scapegoat while others may have escaped scot-free." IV. Similarly, the Applicant repeatedly states that the UNHCR Administration did not "establish facts on the Applicant's case with absolute certainty". In this context and on the question of the burden of proof in such cases, the Tribunal held in Judgement No. 479, Caine (1990): ".. . Respondent is not required to establish beyond any reasonable doubt a patent intent to commit the alleged irregularities, or that the Applicant was solely responsible for them. The Tribunal's review of such cases is limited to determining whether the Secretary-General's action was vitiated by any prejudicial or extraneous factors, by significant procedural irregularity, or by a significant mistake of fact." V. The Applicant further claims that his case was tainted by procedural irregularity and that he was denied due process by the UNHCR Administration. The Tribunal must determine if the Respondent followed, throughout the case, all the relevant administrative procedures aimed at ensuring fairness and due process. VI. The Tribunal has examined the record and finds that due process was by and large respected by the Respondent. The findings against the Applicant were fully presented to him, and he was given, and he in fact took, every opportunity to respond to them. VII. In light of the jurisprudence of the Tribunal, the Applicant must provide satisfactory evidence of prejudice or extraneous factors which may have led the Respondent to dismiss him. The Applicant presented no evidence supporting his allegations of prejudice, and therefore, the Tribunal cannot hold that the Respondent's decision was motivated by prejudice or similar extraneous factors. VIII. The Tribunal also notes that the Applicant was placed on special leave with full pay pending a decision on his case. As noted by the JAB, the correct procedure would have been to suspend the Applicant from service. However, the Tribunal does not find that the actual procedure followed adversely affected the interests of the Applicant. IX. Regarding the audit which led to his dismissal, the Applicant claims that he was not present during the investigation and that he did not

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receive a complete report. The Tribunal holds that, in the circumstances of this case, it was reasonable for the Respondent to decide that an official suspected of financial irregularities should not be present at an audit. Furthermore, it appears that the audit was an exercise which dealt with the financial transactions of the whole UNHCR office in Islamabad. The Tribunal considers that it would have been improper for the Respondent to provide information to the Applicant that did not concern his case. X. The Applicant also contends that the delays in the JAB procedures have caused him a "denial of justice". However, as pointed out by the JAB report, as well as by the Applicant himself, any delay was largely due to the fact that the Applicant objected to the initial composition of the JAB panel. XI. The Applicant denies all allegations made against him, and submits that his dismissal was based on mistaken findings of fact. The Tribunal will not examine the details of all the charges and counter-charges. The Tribunal notes that the Respondent is vested with broad discretionary powers in imposing disciplinary measures and finds that the Applicant's dismissal was based on an examination of facts free from prejudice and bias. XII. The Tribunal concludes, from the evidence before it, that the Respondent took reasonable care to observe the relevant administrative rules and regulations. XIII. With regard to the Secretary-General's rejection of the JAB's recommendation to grant the Applicant a termination indemnity, the Tribunal finds that the Secretary-General was within his authority to reject the recommendation, as the JAB's recommendations are purely advisory. (Judgement No. 562, Al-Jaff( 1992).) XIV. Moreover, the Tribunal considers that as the Applicant has already received more than two years of full pay, while on leave, he is not entitled to compensation. XV. In the light of the foregoing, the application is rejected in its entirety. (Signatures) Samar SEN President Mayer GABAY Member Geneva, 13 July 1994

Francis SPAIN Member R. Maria VlCIEN-MlLBURN Executive Secretary

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Administrative Tribunal of the United Nations Judgement No. 642 (Original: English)

Cases: No. 696: No. 708: No. 723: No. 724: No. 725:

Sow Kane Diatta Dienne Camara

Against: The Secretary-General of the United Nations

Applications of five former staff members of the United Nations (African Institute for Economic Development and Planning—IDEP). Four of the Applicants request rescission of decisions abolishing their posts or terminating their fixed-term appointments, reinstatement and compensation for moral and material injury sustained. One of the Applicants requests payment of various benefits and compensation for material injury. The Joint Appeals Board considered one representative case with the understanding that it would apply to all the cases.—The Board considered the appeal in the light of an agreement concluded by IDEP with the Government of Senegal (the host country of IDEP).—It found that this agreement, which was binding on the Respondent, subordinated the United Nations Staff Rules to the Senegalese Labour Code and that the Applicants had been deprived of the treatment and of the due process to which they were entitled under this Code and under the Staff Rules.—It recommended (I) reinstatement with retroactive salary; (2) if the posts had been effectively abolished, payment of termination indemnity as if the Applicants had had a regular appointment; (3) compensation of US$ 2,000 for being deprived of fair treatment.—Recommendations (2) and (3) accepted. The Tribunal decides to consider the Applicants' cases together on the basis of their common contentions before dealing with other features of the claims. The central issue before the Tribunal is the Applicants' contention (accepted by the Joint Appeals Board) that, under a Treaty Agreement between the United Nations and the Government of Senegal, Senegalese staff members were subject to the United Nations Staff Rules only to the extent that these Rules did not conflict with the Labour Code of Senegal and that, under this code, their fixed-term appointments were deemed to be converted into indefinite appointments; moreover, they could not have been separated without the approval of an official of the Government of Senegal.—The Tribunal recalls (Judgement No. 588, Darlington) that its competence does not extend to the interpretation and application of a Headquarters Agreement in the absence of specific incorporation of the provisions of such agreement in the contract of employment.—No action had been taken by the General Assembly or by the Secretary-General to incorporate the provisions of the Treaty in the Staff Regulations and Staff Rules respectively.—The Tribunal cannot agree that the provisions of the Treaty and of the Senegalese Labour Code were parts of the Applicants' contracts of employment.—Its jurisdiction is limited to the assertions of violation of the terms of a staff member's contract of employment and of applicable Staff Regulations and Rules.—Any issues relating to the alleged violation by the United Nations of its treaty obligations to the Government of Senegal must be resolved between the Organization and the Government and are not within the competence of the Tribunal.—Applicants' contention that they were entitled, under General Assembly resolution 37/126, to a reasonable consideration for a career appointment. - The Tribunal accepts the Respondent's contention that, in view of its

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precarious financial situation, IDEP was unable to give the Applicants career appointments.—The Tribunal concurs with the view of the Joint Appeals Board that the Applicants should have been regarded as appointed under the 100 Series of the Staff Rules rather than under the 200 Series, but this does not affect their rights: as holders of fixed-term appointments they were not entitled to any termination indemnity, although in fact they received it, and the Respondent would have been entitled to terminate their appointments even if they were serving on permanent appointments.—The Tribunal finds no flaw in the procedures followed by IDEP to reduce its staff in order to cope with its financial problems. With respect to individual claims, the Tribunal finds that they were not submitted for consideration to the Joint Appeals Board and therefore are not properly before the Tribunal.—The claim of one of the Applicants that his post had not infact been abolished since he continues the same work under a Special Service Agreement is rejected: the Tribunal finds that the post was in fact abolished, that the Applicant was given a Special Service Agreementfor humanitarian reasons and recalls that an individual serving under such agreement is not a staff member. Applications rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, Vice-President, presiding; Mr. Francis Spain; Mr. Mayer Gabay; Whereas, on 3 September 1992, Demba Sow, a former staff member of the United Nations, filed an application requesting the Tribunal, inter alia: "(a) [To order] that the decision of termination be regarded as null and void; (b) [To order] that my indefinite appointment [sic] be renewed with effect from 1 July 1990, with a back payment of my salary, my dependency allowances and my rights, with retroactive effect from the date of my termination; (c) [To award] compensation for the moral and material injury suffered in the amount of US$ 30,000; (d) [To award] interest at the rate of 20 per cent per annum on the amounts mentioned in (b) and (c). [Or alternatively] to grant me: (a) On the basis that my termination took effect on the date of the decision of the Tribunal, retroactive salary with effect from the date of termination which took place on 1 July 1990, until the date of the Tribunal's decision, plus the dependency allowances, leave entitlements, etc.; (b) Compensation in lieu of notice equal to three months; (c) An end-of-service allowance calculated from my date of employment in 1984, until the decision of the Tribunal;

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(d) By way of compensation for the material injury suffered, an amount of US$ 30,000; (e) For the moral injury suffered, an amount of US$ 50,000; (f) Interest at the rate of 15 per cent per annum on the amounts mentioned in (a), (b), (c), (d) and (e)" Whereas the Respondent filed his answer on 3 June 1993; Whereas the Applicant Sow filed written observations on 13 August 1993; Whereas at the request of Abdou Salam Kane, a former staff member of the United Nations, the President of the Tribunal, with the agreement of the Respondent, extended to 15 January 1993, the time-limit for the filing of an application to the Tribunal; Whereas, on 16 December 1992, the Applicant Kane filed an application requesting the Tribunal, inter alia: (b) That it decide that the Secretary-General must pay me my entitlements to family allowances, leave, medical care; (c) That it decide that I am entitled to damages for material prejudice suffered, in the amount of US$ 10,000; (d) That it decide that I am entitled to the payment of 20 per cent interest on the sums mentioned in paragraphs (b) and (c) above." Whereas the Respondent filed his answer on 15 April 1994; Whereas at the request of Mbaye Diatta, a former staff member of the United Nations, the President of the Tribunal, with the agreement of the Respondent, extended to 15 April 1993, the time-limit for the filing of an application to the Tribunal; Whereas, on 2 April 1993, the Applicant Diatta filed an application requesting the Tribunal, inter alia: (b) That it revoke the decision to abolish my post; (c) That it decide that the Secretary-General must renew my indefinite appointment [sic] from 1 July 1990, with retroactive payment of my salary, my family allowances, my leave and my language allowance, it being understood that such payment will start from the day of termination; (d) That it decide that I am entitled to moral and material damages of US$ 50,000;

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(e) That it decide that I am entitled to the payment of 20 per cent interest on the sums mentioned in paragraphs (c) and (d) above." Whereas the Respondent filed his answer on 15 April 1994; Whereas at the request of Mamadou Makodou Dienne, a former staff member of the United Nations, the President of the Tribunal, with the agreement of the Respondent, extended to 15 April 1993, the time-limit for the filing of an application to the Tribunal; Whereas, on 30 March 1993, the Applicant Dienne filed an application requesting the Tribunal, inter alia: ''

(b) That it revoke the decision to abolish my post; (c) That it decide that the Secretary-General must renew my fixed-term appointment from 1 July 1990, with retroactive payment of my salary, my family allowances, my leave and my language allowance, it being understood that such payment will start from the day of my termination; (d) That it decide that I am entitled to material damages in the amount of US$ 10,000; (e) That it decide that I am entitled to the payment of 20 per cent interest on the sums mentioned in paragraphs (c) and (d) above." Whereas the Respondent filed his answer on 15 April 1994; Whereas at the request of Ali Camara, a former staff member of the United Nations, the President of the Tribunal, with the agreement of the Respondent, extended to 15 April 1993, the time-limit for the filing of an application to the Tribunal; Whereas, on 9 April 1993, the Applicant Camara filed an application requesting the Tribunal, inter alia: '' 2. To revoke the decision to abolish my post; 3. To decide to reinstate me on the basis of a permanent contract with retroactive payment of salary, allowances and benefits... 4. To decide that I am entitled to retroactive promotion; 5. To order the Respondent to submit to the Tribunal the report of the mission of enquiry into the disappearance of IDEP equipment; 6. To declare that [the Chief, Administration and Finance] and [the Administrative Assistant] have committed serious viola-

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tions and to decide on the penalties to be imposed in such circumstances." Whereas the Respondent filed his answer on 15 April 1994; Whereas the facts in the cases are as follows: The Applicant Sow entered the service of the United Nations on 1 January 1984, as a Watchman on a one year fixed-term appointment at the G-l, step I level, at the African Institute for Economic Development and Planning (IDEP) in Dakar, Senegal. On 10 October 1985, his functional title was changed to Clerical Worker. He was promoted to the G-2, step IX level on 1 February 1989. His appointment was extended continuously through 30 June 1990, when he separated from service upon the expiration of his last fixed-term appointment. The Applicant Kane was recruited by IDEP as a Watchman under a Special Service Agreement (SSA) for the period from 18 July to 2 September 1988. On 3 October 1988, he was given another SSA for the period from 1 October through 31 December 1988. On 1 January 1989, he was given a three-month appointment at the G-l, step I level. His appointment was subsequently extended for three-month periods through 30 June 1990, when he separated from service upon the expiration of his last fixed-term appointment. After his separation, the Applicant continued to work for IDEP under a series of SSAs, commencing on 1 October 1990. According to the record, he is currently employed by IDEP under an SSA. The Applicant Diatta entered the service of IDEP on 17 January 1977. He was given a three-month appointment as an Office Clerk at the G-4, step I level. His appointment was extended continuously through 30 June 1990, when he separated from service upon the expiration of his last fixed-term appointment. By then, he had reached the G-5, step IX level. The Applicant Dienne entered the service of IDEP on 1 January 1981, on a three-month appointment as an Accounting Assistant at the G-4, step I level. His appointment was extended continuously through 30 June 1990, when he separated from service upon the expiration of his last fixed-term appointment. The Applicant Camara entered the service of IDEP on 1 January 1978. He was given a three-month appointment as an Accounting Assistant at the G-4, step I level. His appointment was extended continuously through 30 June 1990, when he separated from service upon the expiration of his last fixed-term appointment. By then, he had reached the G-5, step VI level. On account of the financial crisis faced by IDEP and the need for restructuring its basic activities, the IDEP Governing Council, at its 32nd

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session on 11 May 1990, decided to abolish 11 posts funded from budgetary resources and encumbered by local staff. On 31 May 1990, the Chief, Administration and Finance, IDEP, informed the Applicants that the posts encumbered by them had been abolished and that they would not be entitled to the payment of a termination indemnity. In addition, he indicated that the posts to be abolished had been selected on the basis of the seniority of the incumbents. On 11 June 1990, nine staff members, including all the Applicants, requested the Secretary-General to review the decision not to extend their appointments and not to pay them termination indemnities. In a reply dated 8 October 1990, the Director, Staff Administration and Training Division, Office of Human Resources Management (OHRM), informed the Applicants that the decision would be maintained. On 11 October 1990, the Applicants lodged appeals with the Joint Appeals Board (JAB). The JAB grouped their appeals and considered a single representative case, which by agreement with the Applicants, would apply to all of them. The JAB adopted its report on 31 March 1991. Its considerations and recommendations read, in part, as follows: "Considerations 16. The Panel had, in the first instance, to deal with questions of fact. Appellant had submitted with his letter of 13 May 1991, addressed to the Secretary, JAB, copies of the agreement concerning the establishment of IDEP concluded between the Government of Senegal and the UN and of a portion of the Senegalese Labour Code, including Article 35. The Panel noted that Respondent did not question the validity of the text of the Labour Code. Respondent did, however, question the validity of the text of the agreement, as provided by Appellant. The Panel noted that the Office of Legal Affairs (OLA) had requested a copy of the agreement from the Director of IDEP (. . .), and that Respondent had requested additional time to submit a reply until OLA had received a copy of the authentic text and had commented on it. It was not clear, however, from Respondent's comments of 15 August 1991, whether the objections raised therein were based on the text provided by Appellant or on a text provided by the Director of IDEP in reply to OLA's cable. 17. The Panel found it difficult to believe that there was not a base agreement for an institution as important as IDEP, which had been in existence since at least 27 February 1964 (date of approval of its Statute by the Economic Commission for Africa (ECA)), and for which the General Assembly had approved a revised statute on 20 December 1979. The Panel noted that Respondent did not deny that such an agreement existed and that the Revised Statute (Article II, para. 2) states that the host government shall provide certain

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Administrative Tribunal of the United Nations facilities 'in agreement with the United Nations.' The Panel had no evidence that Respondent had searched the files and archives of the UN, the UNDP (which provides part of the financing of IDEP), and ECA for a true copy of any such agreement. 18. Respondent also attacks the validity of the text provided by the Appellant on the grounds that 'it purports to subject the application of the Staff Regulations and Rules to Senegalese labour law.' In an earlier paragraph of the same submission (15 August 1991), however, Respondent quotes the paragraph of the Revised Statute of IDEP, which provides that it shall be subject to the Staff Rules, except as authorized by the Secretary-General. As Respondent had failed (a) to demonstrate that no base agreement with respect to IDEP existed, or (b) to produce a text of the valid agreement, the Panel concluded that it had to accept the text submitted by Appellant as a basis for its further consideration. 19. The Panel noted that,..., the Respondent was bound by this Treaty Agreement, which effectively subordinates UN Staff Rules to the Senegalese Labour Code. The Panel rejected the contention of the Respondent that even if the United Nations had seemingly acceded to the Treaty Agreement, the Treaty Agreement should be considered null and void ab initio, as it was contrary to internal UN legislation. The Panel disagreed with this argument as a Treaty Agreement between the parties would supersede any internal laws of either party to the Agreement. The Panel had reached this stage in its considerations when it received from Appellant a copy of a letter dated 10 February 1992, from the Minister of Foreign Affairs, Republic of Senegal, (...). That letter removed any doubt that might have remained as to the existence of the Agreement and its validity. 23. ... the Panel finds that Appellant was deprived of the fair and just treatment to which he was entitled as a staff member and of due process under both the Senegalese Labour Code and the UN Staff Rules. Recommendations 24. The Panel recommends that: (a) Appellant be reinstated with full retroactive payment of salary, allowances and benefits; (b) If his post has in fact been abolished as stated by Respondent, and not reinstituted after Appellant's departure as alleged by Counsel, he be paid termination indemnities as if he had had a regular appointment under the 100 Series of the Staff Rules; and

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(c) In either case, in compensation for being deprived of fair treatment and due process, Appellant be paid an indemnity of US$ 2,000. (This indemnity should be paid to all appellants, including Mr. Kane)." On 9 July 1992, the Assistant Secretary-General for Human Resources Management transmitted to the Applicants a copy of the JAB report, and informed each of them as follows: "The Secretary-General has re-examined your case in the light of the Board's report. He has serious reservations with the Board's reasoning. Nevertheless, in view of the exceptional circumstances of the case where your terms of appointment may have been unclear to you, he has decided to accept the Board's recommendation contained in paragraph 24(b) of the report that you be paid a termination indemnity calculated on the basis of the schedule normally applicable to permanent appointments, as set out in Annex III(a) to the Staff Regulations. The Secretary-General has noted the delays which have prevented a prompt resolution of your case. On this ground, he has also decided to accept the Board's recommendation that you be paid US$ 2,000 in damages." On 3 September 1992, the Applicant Sow filed with the Tribunal the application referred to earlier. On 16 December 1992, the Applicant Kane filed with the Tribunal the application referred to earlier. On 2 April 1993, the Applicant Diatta filed with the Tribunal the application referred to earlier. On 30 March 1993, the Applicant Dienne filed with the Tribunal the application referred to earlier. On 9 April 1993, the Applicant Camara filed with the Tribunal the application referred to earlier. Whereas the Applicants' principal contentions are: 1. By virtue of the Agreement between the United Nations and the Government of Senegal, the relationship between IDEP and its staff is subject to the Senegalese Labour Code. 2. The Applicants were entitled to an indefinite appointment after 1985 and protection from separation, in accordance with the relevant provisions of the Senegalese Labour Code. 3. As all the Applicants, except the Applicant Kane, served IDEP satisfactorily for more than five years, they were entitled to a career appointment pursuant to General Assembly resolution 37/126. Whereas the Respondent's principal contentions are:

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1. The Administration of a UN subsidiary body has no authority to derogate from the Staff Regulations and Rules. 2. The provisions of the Agreement entered into between the United Nations and the Government of Senegal would not create rights and obligations for UN staff members. 3. The Applicants expressly accepted that their appointments with IDEP would be subject to the UN Staff Regulations and Rules. 4. The Applicants had no reasonable expectation of the renewal of their fixed-term appointments. 5. The Respondent properly exercised his discretion in establishing the amount of compensation to be paid to the Applicants. The Tribunal, having deliberated from 29 June to 14 July 1994, now pronounces the following judgement: I. As the Applicants' respective claims are all based fundamentally on common contentions, the Tribunal has decided to consider the Applicants' cases together and turns first to their central and common contentions before dealing with other features of the Applicants' claims. II. The Applicants appeal from a decision by the Secretary-General, dated 9 July 1992, to uphold the separation of the Applicants from the service of the Organization, following the expiration of their fixed-term appointments, and to accept a Joint Appeals Board (JAB) recommendation that the Applicants be paid an indemnity calculated on the basis of the schedule normally applicable to termination of permanent appointments. In addition, the Secretary-General accepted a recommendation of the JAB to pay each of the Applicants US$ 2,000 in damages on account of delays. III. The Applicants' claims are premised on the contention that, under the terms of a Treaty Agreement between the United Nations and the Government of Senegal (the Treaty), locally recruited staff of Senegalese nationality were subject to United Nations Staff Rules only to the extent that those Rules did not conflict with the Labour Code of Senegal, which was to remain applicable to those staff members. The Applicants assert that such a conflict existed and that it is pertinent to their situation. According to the Applicants, Article 35 of the Labour Code of Senegal provides that no worker can have more than two fixed-term contracts with the same employer and that service beyond those fixed-term contracts is deemed to continue under an indefinite contract. Under Article 47 of the Labour Code, separation is conditioned on approval by an official of the Government of Senegal. In their view, therefore, the Organization could not lawfully separate the Applicants from their posts, as it did, upon expiration of their last fixed-term appointments, despite the

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fact that the reason for doing so was a severe financial crisis faced by IDEP, a subsidiary body of the Economic Commission for Africa. IV. The JAB found merit in the Applicants' contention with regard to the applicability of the Labour Code of Senegal. In its view, the Respondent was bound by the terms of the Treaty. The JAB also concluded that the Applicants should have been appointed under the 100 Series of the Staff Rules rather than the 200 Series of the Staff Rules. The Administration had indicated its belief that the appointments had been made under the 200 Series of the Staff Rules. However, the JAB believed that this was improper, and that those Applicants who had served more than five years should have been entitled to every reasonable consideration for a career appointment, under General Assembly resolution 37/126. It found that no such consideration appeared to have been afforded to them. Accordingly, the JAB recommended reinstatement with full retroactive salary and benefits. If, in fact, the Applicants' posts had been abolished and not reinstituted, the JAB recommended that they be paid a termination indemnity as if they had held a regular appointment under the 100 Series of the Staff Rules, plus US$ 2,000 in damages. As noted above, the recommendations regarding termination indemnities and damages were adopted in the Secretary-General's decision under appeal. V. As presented to the Tribunal, the central issue in this case appears to revolve around whether the Treaty is applicable and may be invoked by the Applicants before the Tribunal. As a preliminary matter, the Tribunal has previously held that its competence does not extend to the interpretation and application of a Headquarters Agreement (similar to the Treaty) in the absence of specific language in the contract of employment incorporating the provisions of a Headquarters Agreement. (Cf. Judgement No. 588, Darlington (1993), para. VIII.) Nothing in the Staff Regulations or Staff Rules governing the Applicants' contract of employment incorporated any provision of the Treaty. VI. No action by the General Assembly incorporated any provisions of the Treaty into the Staff Regulations. Similarly, no such action was taken by the Secretary-General with respect to the Staff Rules, notwithstanding that he had authority under article 3, paragraph 2 of the IDEP Statute to make exceptions to the Staff Rules. And the Tribunal notes, parenthetically, that this authority does not appear to have been delegated under the IDEP Statute to the Director of IDEP, who signed the Treaty on behalf of the United Nations. Hence, the Tribunal is unable to agree with the view of the JAB that the Applicants' contracts of employment included both article IV of the Treaty and provisions of the Labour Code of Senegal. VII. The Respondent has contended that the Treaty does not create rights between the Organization and staff members enforceable before

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the Tribunal. He argues that it applies only to the parties who signed it. There is no need for the Tribunal to express an opinion on the issue of international law as such. It is sufficient for the Tribunal to point out, as it has in other cases, that its jurisdiction is limited to assertions of violation of the terms of a staff member's contract of employment, including terms of appointment, and applicable Staff Regulations and Rules. (Cf. Judgement No. 437, Ahmed (1988); Judgement No. 361, Minter (1986).) VIII. If, as has been contended by the Applicants, the Organization had obligations under the terms of the Treaty with respect to Senegalese nationals and failed to comply with these obligations, such failure presents an issue for resolution between the Organization and the Government of Senegal. In the context of this case, such issues are not within the competence of this Tribunal. IX. The Tribunal observes that, if the Labour Code of Senegal were applicable as part of the Applicants' contracts of employment, they would be entitled not only to conversion of their fixed-term appointments to permanent appointments, but also to immunity from separation pending authorization by an official of the Government of Senegal. This would constitute a most unusual state of affairs in terms of the administration of the staff of the United Nations. It might also raise questions under Article 8 of Chapter III of the Charter, or with respect to the principle of equal treatment which the Tribunal has addressed in its jurisprudence. But there is no necessity for the Tribunal to address these matters in this case. X. The Applicants who were in the service of IDEP for the requisite period have contended that they were entitled to but did not receive the benefit of General Assembly resolution 37/126, calling for "every reasonable consideration for a career appointment." The JAB found no indication that they received such consideration. The Respondent contends that, because of IDEP's precarious financial situation, it was not in a position to give the Applicants career appointments, and the evidence supports the Respondent's contention. In the circumstances of this case, the Tribunal is unable to find any material injury to the Applicants in this respect. XI. Although the Tribunal concurs in the JAB view that the Applicants should be regarded as having been appointed under the 100 Series rather than the 200 Series of the Staff Rules, it does not appear that the outcome of the Applicants' appeals is affected thereby. The Applicants, who were serving on fixed-term appointments, were entitled to and received 30 days' notice that their fixed-term appointments would not be renewed. As staff members serving under fixed-term appointments, they were not entitled to any termination indemnity. However, for the reason set forth in the Respondent's decision dated 9 July 1992 (which did not convert the Applicants' fixed-term appointments to permanent appoint-

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ments), the Respondent awarded them the same termination indemnity they would have received had they been serving under a career appointment, plus an additional sum of US$ 2,000. Under the circumstances of this case, the Tribunal considers that the Applicants have been fairly treated. Had they been serving on permanent appointments, the Respondent would have been authorized to terminate their appointments on 30 June 1990, under staff rule 109.1(c). At most, the Applicants would have been entitled to only an additional two months' advance notice, or pay in lieu thereof. The Tribunal sees no justification for treating the Applicants as though they had been separated as of the date of the Tribunal's judgement. While the Applicants contend that they were improperly selected for separation from the Organization, the Tribunal finds no flaw in the basic procedure followed by IDEP to reduce its staff in order to cope with the financial problems confronting it. XII. With respect to individual claims made by the Applicants, the Tribunal finds as follows: XIII. The Applicant Sow invites the Tribunal's attention to the recruitment by IDEP, after his separation, of a female staff member who was employed as a secretary, not the work previously done by the Applicant, and who later separated from the Organization, leaving a vacancy which the Applicant contends he should have been rehired to fill. The claim sought to be made by the Applicant Sow was not considered by the JAB. Indeed, it does not appear to have been raised until after the adoption of the JAB report. It is, therefore, not for consideration by the Tribunal under article 7 of the Tribunal's Statute. XIV. The Applicant Kane argues that, in fact, his post was not abolished. He cites in support of this contention the fact that he continues to do the same work for IDEP under a Special Service Agreement (SSA). In fact, the post was abolished. That he is doing the same work under an SSA does not alter the situation. An individual serving under an SSA is not a staff member. Moreover, the SSA was entered into with the Applicant Kane as a humanitarian gesture on the basis of his individual circumstances. It ill behooves the Applicant to attack the Organization for acting on humanitarian grounds to his benefit. XV. The Applicant Diatta also contends that, in fact, his post was not abolished and that it was offered to another individual who served under an SSA. The Applicant Diatta claims discrimination because he was not offered an SSA. In fact, the Applicant Diatta's post was abolished. The record shows that the work of the person serving under an SSA was different from the work the Applicant had done and was work for which the Applicant was not adequately qualified. The Tribunal also notes that this issue does not appear to have been presented to the JAB. He also cites the case of the Applicant Kane. The fact that the Applicant Kane received

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an SSA for humanitarian reasons does not constitute unlawful discrimination and is irrelevant to the central issue in this case. XVI. The Applicant Dienne contends that, after his separation, IDEP created a new post that he could have encumbered but which was given to another staff member. He contends that this was in violation of his rights under the Staff Rules and Regulations, as well as contrary to the spirit of the communication informing him of the abolition of his post. This issue does not appear to have been presented to the JAB, which dealt with the Applicant Dienne's case on the same basis as the case of the other Applicants. Before the JAB, the decisive issue was the legality of the abolition of the Applicants' posts and their resulting separation. Accordingly, the claim of the Applicant Dienne regarding the subsequent creation of a new post is not properly before the Tribunal. The Applicant Dienne also cites the case of the Applicant Kane who received an SSA as constituting unlawful discrimination. As the Tribunal notes above, the Applicant Kane's work under an SSA did not give him the status of a staff member and, under the circumstances, did not constitute unlawful discrimination in his favour. XVII. The Applicant Camara asserts a claim to a retroactive promotion. It does not appear that this issue was before the JAB, which treated the case as an appeal against a decision to separate the Applicant from the service of the Organization. That being so, the issue is not properly before the Tribunal. The Applicant Camara also asks the Tribunal to order the Respondent to submit a report dealing with an inquiry into the disappearance of IDEP equipment, and to declare that other staff members have committed serious violations. Neither of these matters was before the JAB and will not be considered by the Tribunal. XVIII. For the foregoing reasons, the applications are rejected in their entirety. (Signatures) Jerome ACKERMAN

Vice-President, presiding Mayer GABAY

Member Geneva, 14 July 1994

Francis SPAIN

Member R. Maria VICIEN-MILBURN

Executive Secretary

Judgement No. 643

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Judgement No. 643 (Original: English) Case No. 706: Al-Kishali

Against: The Secretary-General of the United Nations

Application of a former staff member of the United Nations (Economic and Social Commission for Western Asia—ESCWA) for rescission of decision not to renew his fixed-term appointment, for reinstatement and for compensation for material and moral injuries. The Joint Appeals Board found that, while the Respondent had the unquestioned right to terminate fixed-term contracts, the decision in this case had been vitiated as an important factor in the decision was the Applicant's nationality which should not play a part in the decisions affecting the career of an international civil servant, even if it may be taken into consideration at the time of appointment.—The Board recommended compensation equal to the Applicant's net base salary from the expiry of his appointment (16 November 1991) to 31 December 1992.—Recommendation rejected. The Tribunal determines that the only issue properly before it is the non-renewal of the Applicant's fixed-term appointment.—Various other issues raised by the Applicant during the proceedings concerning the circumstances in which the post he had vacated was subsequently advertised and filled constitute grievances which the Applicant should have raised through the appropriate procedures, within relevant time-limits.—There is no merit in the Applicant's allegation that the Executive Secretary of ESCWA contrived to accommodate a candidate of another nationality through the non-renewal of the Applicant's appointment.—The Tribunal does not accept the Applicant's claim that he had a legitimate expectancy of renewal.—In accordance with the Tribunal's jurisprudence, length of service and performance do not validly create an expectancy of renewal of a fixed-term appointment.—With regard to the Applicant's claim that he had the right to a « reasoned decision » when the Administration decided not to renew his appointment, the Tribunal finds that the final decision contained in fact a reasoned opinion. Application rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, First Vice-President, presiding; Mr. Luis de Posadas Montero, Second Vice-President; Mr. Mayer Gabay; Whereas, on 30 September 1992, Amir M.S. Al-Kishali, a former staff member of the United Nations, filed an application requesting the Tribunal, inter alia: '' (5) To order the Respondent:

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(a) To rescind his decision of 8 July 1992, to maintain his previous decision of 4 October 1991, not to renew the Applicant's fixed-term appointment beyond 15 November 1991 ... (b) To reinstate the Applicant to the post of Deputy Executive Secretary (D-2) of ESCWA [Economic and Social Commission for Western Asia], retroactive from 16 November 1991 ... (c) To grant the Applicant a final fixed-term appointment, retroactive from 16 November 1991, until his mandatory retirement age of 60 as of 1 July 1996. (6) To award the Applicant, in lieu of specific performance under items (a), (b) and (c) above, three years' net base salary as at his separation from ESCWA on 15 November 1991 ... (7) To award the Applicant appropriate and adequate compensation for material and moral injuries suffered by him as a direct consequence of the Respondent's decisions clearly vitiated by denial of due process, prejudice, improper motives and extraneous considerations ..." Whereas the Respondent filed his answer on 1 July 1993; Whereas the Applicant filed written observations on 6 October 1993; Whereas, on 23 November 1993, the Applicant filed an additional statement and further documents; Whereas, on 12 July 1994, the presiding member of the Panel ruled that no oral proceedings would be held in the case; Whereas the facts in the case are as follows: The Applicant, a national of Iraq, entered the service of the United Nations on 1 September 1984, as Deputy Executive Secretary for the Economic and Social Commission for Western Asia (ESCWA) on a two year fixed-term appointment, at the D-2, step 1 level. He served thereafter on further fixed-term appointments, the first one of two years, through 31 August 1988, and the second one of three years, through 31 August 1991. In July 1991, ESCWA was temporarily relocated to Amman, Jordan. The Executive Secretary of ESCWA recommended the extension of the Applicant's appointment for a further fixed-term period of one month, until 30 September 1991. He also recommended that, thereafter, Mr. Al-Saigh, a national of Saudi Arabia, be appointed to the post held by the Applicant. The Applicant's appointment was again extended for a further period of one month and fifteen days, through 15 November 1991, in order to advertise the vacant post and to "select a suitable candidate under the

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new procedure" established by the Secretary-General "governing appointments at the D-2 level". The Applicant separated from the service of the United Nations on 15 November 1991. The post of Deputy Executive Secretary was advertised under Vacancy Announcement No. 91 -E-EC W-067-BG, with a deadline for applications of 27 January 1992. However, due to the suspension of recruitment as of 6 February 1992, no action was taken to fill the vacant post. On 9 October 1991, the Applicant requested the Secretary-General to review the administrative decision not to extend his appointment. Having received no substantive reply to his request, on 16 December 1991, the Applicant lodged an appeal with the Joint Appeals Board (JAB). The JAB adopted its report on 5 June 1992. Its considerations and recommendation read, in part, as follows: "Considerations 15. ... the Panel decided to base its consideration on the Tribunal's own words (Judgement No. 345: Najjar [1985]), i.e., XI. ... the Tribunal's jurisprudence has consistently maintained that while, under the Regulations and Rules governing fixed-term contracts, the Respondent has [the] unquestioned right to terminate such contracts, it must nevertheless be ensured that the decision to terminate must not be tainted by caprice, prejudice, falsehood or any serious lack of due process.' 16. The Panel noted that Appellant was recruited because he was an Iraqi national and that an important factor—if not the major factor—in the decision to terminate him was his nationality. While the Secretary-General may be required to take political considerations into account in making certain appointments, once an individual has served satisfactorily as a staff member—and there is no evidence to show that Appellant had not—nationality should not play a part in decisions affecting his or her career as an international civil servant. The Panel was concerned, therefore, that the decision to terminate him may be deemed to have been tainted by prejudice. 17. In arguing that Appellant's due process rights were fully respected, Respondent points out that the vacancy was properly advertised and that Appellant apparently did not submit an application. Respondent does not explain how Appellant, who was in Baghdad and no longer a staff member, could have replied to an announcement which was distributed at Headquarters on 9 December 1991, with a deadline of 27 January 1992. More significantly, the Panel took Respondent's statement as a tacit admission that Appellant was not considered by the Senior Review Group established by ST/SGB/244.

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18. It is clear that the decision to advertise the prospective vacancy was made prior to Appellant's termination on 15 November 1991, (...), Appellant, as a person already in the service of the UN, should have been considered for a post for which he had the requisite qualifications and experience. 19. ... the Panel concluded that the decision to terminate him had been tainted by a serious lack of due process. Recommendation 20. The Panel recommends that Appellant be paid compensation equal to his net base salary from 16 November 1991 to 31 December 1992." On 8 July 1992, the Assistant Secretary-General for Human Resources Management transmitted to the Applicant a copy of the Board's report and informed him as follows: "The Secretary-General has re-examined your case in the light of the Board's report. Bearing in mind: (a) That you had been appointed in 1984 without any other candidate being considered; (b) That the decision not to renew your appointment was taken to allow qualified candidates to be considered for the post of Deputy Executive Secretary of ESCWA under ST/SGB/244 of 26 August 1991, with a view to ensuring that the selected candidate would meet the highest standards of efficiency, competence and integrity; and, (c) That no nationality was excluded from consideration in the vacancy announcement which was circulated for the post, the Secretary-General cannot accept the conclusions and recommendations of the Board. He finds that the contested decision conforms with Article 101, paragraph 3 of the Charter and staff regulation 4.2 and has decided to maintain the contested decision. Due to the current reorganization of the Secretariat and the temporary suspension on recruitment decided by the Secretary-General on 6 February 1992, no action has been taken to fill the post of Deputy Executive Secretary. If and when it is decided to proceed with the filling of the post, you will be considered along with the other candidates by the Senior Review Group which will advise the Secretary-General on this matter. In accordance with staff regulation 4.4 the fullest regard will be given hi the process to your experience and qualifications." On 30 September 1992, the Applicant filed with the Tribunal the application referred to earlier.

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85

Whereas the Applicant's principal contentions are: 1. The Applicant had a legal expectancy of the renewal of his fixed-term appointment beyond 15 November 1991. 2. The Applicant was not properly considered for extension of his appointment. 3. The Respondent erred in rejecting a unanimous JAB recommendation. 4. The Respondent engaged in "obstruction of justice" and failed to give a reasoned decision. Whereas the Respondent's principal contentions are: 1. The Applicant had neither the right nor the legal expectancy of continued employment beyond the expiry of his fixed-term appointment. Accordingly, his separation from service did not violate his rights. 2. The decision not to renew the Applicant's fixed-term contract was not motivated by prejudice or other extraneous factors. 3. The advice of joint bodies is in the nature of recommendations, and staff do not have a right to expect the Administration to accept unanimous recommendations of those joint bodies. The Tribunal, having deliberated from 29 June to 14 July 1994, now pronounces the following judgement: I. The Applicant held the post of Deputy Executive Secretary of ESCWA, a D-2 post to which he had been appointed by the Secretary-General in September 1984. He served on a fixed-term appointment which was extended several times and finally expired on 15 November 1991. The Applicant claims that his fixed-term appointment should have been further extended and that its non-extension was "vitiated by denial of due process, prejudice, improper motives and extraneous considerations". II. In particular, the Applicant alleges that the Executive Secretary of ESCWA favoured the non-extension of his appointment in order to accommodate another candidate of Saudi-Arabian nationality. The Applicant also submits that he had a legal expectancy to continue in the post until it was filled through the regular selection process. He claims that on account of his good work and his years of service, he had the right to continue to be employed until he reached the mandatory retirement age. Furthermore, he alleges that he was entitled to a "reasoned decision" for the non-renewal of his appointment. III. The JAB, when considering the Applicant's case, concluded that the Applicant had been unfairly treated because he had not been able to apply for his former post when it was advertised. This complaint was not raised by the Applicant in his submission to the JAB, or the Tribunal.

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IV. The JAB appears to have considered the Applicant's case in the erroneous belief that the post in question had not only been advertised, but filled by a candidate other than the Applicant. However, the Secretary-General, in his final decision on the JAB's report, noted that the post in question had not yet been filled, due to a recruitment freeze. The Secretary-General added that "if and when it is decided to proceed with the filling of the post, you will be considered along with the other candidates". Subsequently, the Tribunal was informed by the Applicant that the post had been filled in October 1993, by a candidate other than himself. V. The first concern of the Tribunal in considering this case is to determine clearly the issues that it is called upon to decide. In this respect, the Tribunal holds that the only issue properly before it is the non-renewal of the Applicant's fixed-term appointment. In the Tribunal's view, the other issues raised in the course of the proceedings, i.e. the advertisement of the post after it was vacated, the opportunity the Applicant might have had for the post, the misunderstanding which led the JAB to believe erroneously that the post had been filled, the decision to apply the recruitment freeze to the vacant post and the final decision to fill the post a year later, are all extraneous to the case. If the Applicant was of the opinion that he had been wronged in connection with these events, he should have raised his grievances through the appropriate procedures, within the relevant time-limits. The Tribunal now turns its attention to the non-renewal of the Applicant's fixed-term appointment. VI. The Tribunal finds no merit in the allegation that the Executive Secretary of ESCWA contrived to accommodate a Saudi-Arabian candidate through the non-renewal of the Applicant's fixed-term appointment. The post vacated by the Applicant was subsequently advertised. The Executive Secretary's recommendation as to who should fill the post was therefore not adopted. Thus, even if such a sequence of events was envisaged by the Executive Secretary of ESCWA (and this was not established), then it failed to materialize and is not germane. VII. The Applicant further claims that he had a legitimate expectancy to renewal of his appointment until the post was filled pursuant to the recruitment process. He submits that the renewal of his appointment was suggested twice and gave rise to an expectancy. He also claims that the Administration should compensate him because of its decision to vacate the post before the recruitment process was completed. VIII. The Tribunal is unable to agree with the Applicant. In the Tribunal's view, no commitment to extend the Applicant's fixed-term appointment until the post was finally filled arose as a consequence of the two short-term renewals of the Applicant's appointment. The Adminis-

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tration was entitled to change its policy and to decide to vacate the post rather than continue to fill it on a provisional basis. IX. With regard to the Applicant's claim that, on account of length of service and performance, he had an expectancy of renewal of his appointment until he reached the mandatory retirement age, the Tribunal recalls its jurisprudence that none of these elements validly creates an expectancy of renewal of a fixed-term appointment. X. The Applicant also claims that he had the right to a "reasoned decision" when the Administration decided not to renew his fixed-term appointment. The Tribunal notes that, in fact, a reasoned opinion appears in paragraph (b) of the Secretary-General's final decision, which states, "The decision not to renew your appointment was taken to allow qualified candidates to be considered for the post of Deputy Executive Secretary of ESCWA under ST/SGB/244." XL For the foregoing reasons the application is rejected in its entirety. (Signatures) Jerome ACKERMAN First Vice-President, presiding

Luis de POSADAS MONTERO Second Vice-President

Mayer GABAY Member

R. Maria VICIEN-MILBURN Executive Secretary

Geneva, 14 July 1994

Judgement No. 644 (Original: English) Case No. 704: Thabet

Against:

The Secretary-General of the United Nations

Application of a staff member of the United Nations (Economic and Social Commission for Western Asia—ESCWA) for a finding that the selection for a post was carried out illegally under the Vacancy Management System (VMS) and that the decision not to select him was vitiated by denial of due process, as well as for appropriate compensation. The Joint Appeals Board found that the Applicant's candidature for the post in question had been given due consideration. The Tribunal finds that the Vacancy Management System (VMS) was in force at the time of the contested decision.—Staff members who apply for vacant posts under the VMS are entitled to due consideration, according to the procedure described by the Tribunal in its

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Administrative Tribunal of the United Nations

Judgement No. 565 (Al-Atraqchi).—The Tribunal finds that the Applicant was given due consideration as his name appeared on the short list provided by the Appointment and Promotion Board which, according to the Tribunal's jurisprudence, establishes that the candidate was duly considered.—Final selection for a post can only be challenged on the grounds of prejudice, mistake of fact, discrimination or other extraneous considerations, none of which was proved in this case.—Due process was respected in the appointment of another candidate. Application rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, First Vice-President, presiding; Mr. Luis de Posadas Montero, Second Vice-President; Mr. Mayer Gabay; Whereas at the request of Mohammad Said Thabet, a staff member of the United Nations, the President of the Tribunal, with the agreement of the Respondent, successively extended to 30 June and 30 August 1992 the time-limit for the filing of an application to the Tribunal; Whereas, on 11 September 1992, the Applicant filed an application requesting the Tribunal, inter alia: '' 3. To find and rule that the Respondent illegally applied the VMS [Vacancy Management System] during 1990-1991 to the selection of a candidate for the post of Chief (P-5) of Personnel Section in the Division of Administration at ESCWA [Economic and Social Commission for Western Asia] ... 4. To find and rule that the Executive Secretary of ESCWA.. . arbitrarily selected ... his own Special Assistant..., as the candidate for the post of Chief of Personnel Section at ESCWA, effective from 24 March 1991. 6. To find and rule that the Respondent's decision not to appoint the Applicant as Chief of Personnel Section at ESCWA was clearly vitiated by denial of due process, prejudice, discrimination and extraneous considerations. 7. To order the Respondent, pursuant to article 9 of its Statute, to pay the Applicant appropriate and adequate compensation... 8. To direct the Respondent to give [him] full and fair consideration ... for promotion, at the earliest possible date, to a vacant P-5 post for which he is qualified,..." Whereas the Respondent filed his answer on 1 March 1993; Whereas the Applicant filed written observations on 1 June 1993; Whereas the facts in the case are as follows:

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The Applicant entered the service of the United Nations on 1 October 1980, on a one year and three months intermediate term appointment, as a Regional Adviser at the L-3, step IV level, with the United Nations Environment Programme in the Regional Office for West Asia, Beirut, Lebanon. On 1 January 1982, the Applicant's appointment was extended for a year. He was transferred to Nairobi, Kenya, with effect from 15 October 1982. On 1 January 1983, the Applicant's appointment was extended for another year. On 4 May 1983, the Applicant was transferred to the Economic and Social Commission for Western Asia (ESCWA) in Baghdad, Iraq, on a fixed-term appointment at the P-3, step VII level, as a Programme Management Officer. On 1 June 1984, the Applicant was granted a probationary appointment. The Applicant was reassigned to the ESCWA Personnel Section, as a Personnel Officer, with effect from 1 September 1984. He was assigned to Headquarters for a training period of one year. On 1 March 1985, his appointment became permanent. The Applicant returned to Baghdad on 1 September 1985. On 5 September 1985, he was appointed Deputy Chief, Personnel Section. He was promoted to the P-4 level, with effect from 1 April 1986. On 7 June 1990, the Chief, Division of Administration, ESCWA, announced to the staff in ESCWA/IC/1990/66 that on account of the illness of the Chief of Personnel, the Applicant would "be the Officer-in-Charge of the Section until further notice." On 1 August 1990, the post was vacated and the Applicant continued to act as Officer-in-Charge. He was granted a Special Post Allowance to the P-5 level, from 20 December 1990 through 23 March 1991, when another staff member was selected to fill the post. The Applicant was reassigned to the Programme Planning and Technical Cooperation Division, Technical Cooperation Unit, as Officer-in-Charge. The P-5 post of Chief, Personnel Section, Division of Administration, ESCWA, was advertised in Vacancy Announcement No. 90-AECW-375-BG. Selection for the post was conducted under the Vacancy Management and Staff Redeployment System (VMS) established under administrative instruction ST/AI/338 and its addenda, then in force. The deadline for submission of applications was 10 September 1990. Interested staff members at the P-5 and P-4 levels were invited to apply. The Applicant was among the staff members who applied for the post. On 23 January 1991, the Director, Recruitment and Placement Division, Office for Human Resources Management (OHRM), transmitted to the Chairman of the Appointment and Promotion Board (APB), a list of three names, including the Applicant's, who, in the opinion of OHRM, met the requirements for the post. The APB, at a meeting held on 24 Janu-

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ary 1991, established a provisional short list containing the same three names. In a letter dated 27 March 1991, the Senior Recruitment and Placement Officer, Professional Staffing Service, OHRM, informed the Applicant as follows: "Your candidacy has been carefully considered but I regret that another candidate has been selected". On 10 April 1991, the Applicant requested the Secretary-General to review the administrative decision not to select him for the post. Not having received a substantive reply to his request, on 13 August 1991, the Applicant lodged an appeal with the Geneva Joint Appeals Board (JAB). The JAB adopted its report on 16 January 1992. Its conclusion and recommendation read as follows: "23. The Panel concludes that the Appellant's candidature for the post in question was accorded due consideration. 24. Accordingly, while it understands the concern of the Appellant for what he may view as lack of development of his career as a result of his non-selection, the Panel makes no recommendation in support of the present appeal." On 20 January 1992, the Director, Office of the Under-SecretaryGeneral for Administration and Management, transmitted to the Applicant a copy of the JAB report and informed him as follows: "The Secretary-General has reviewed your case in the light of the Board's report. He fully shares the Board's conclusion and has decided, in accordance with its recommendation, to reject your request for compensation." On 11 September 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Applicant had a legal expectancy of promotion to the post of Chief of Personnel Section, ESCWA. 2. The application of the VMS in 1990-1991, at the time of the filling of the post in question, was illegal and therefore violated the Applicant's rights. 3. The Respondent's decision not to appoint the Applicant to the post was vitiated by denial of due process, prejudice, discrimination and extraneous considerations. Whereas the Respondent's principal contentions are: 1. Staff have no legal expectancy of promotion. The Applicant was considered for promotion in accordance with the procedures then in force. The fact that the Applicant was not promoted does not violate his rights.

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2. The VMS in force at the time of the filling of the post was valid and did not result in denial of the Applicant's right to full consideration for promotion. 3. The Applicant's allegation that the selection process for the post was vitiated by denial of due process, prejudice, discrimination and extraneous factors is not supported by evidence. The Tribunal, having deliberated from 29 June to 14 July 1994, now pronounces the following judgement: I. The Applicant claims that there was an irregularity in filling the post of Chief of Personnel at ESCWA, a post for which he applied but which was filled by a candidate other than himself. In support of his claim, the Applicant submits that resort to the VMS was improper. He also submits that the successful candidate had only been with ESCWA for a few months before he was selected. The Applicant also claims that he was subject to prejudice, discrimination and extraneous considerations and that the principles of due process were not respected. II. The Tribunal finds that: A. The VMS was in force at the time the post was filled, i.e. in March 1991, as confirmed by the Upadhya judgement, rendered in November 1991. (Cf. Judgement No. 537, Upadhya (1991).) B. Staff members who apply for vacant posts under the VMS are entitled to due consideration. As the Tribunal held in its Judgement No. 565, Al-Atmqchi (1992), paragraph V: "V. ... The VMS selection process according to ST/AI/338, is conducted in two steps: the applications are first considered by the APB and a short list is drawn up and submitted to the head of the department concerned; then, the head of the department makes his choice. As far as the first step is concerned, detailed guidelines, to be followed by the APB, are set forth in Section II of ST/AI/338. Once the APB concludes its review, the decision rests with the head of the department. For this second phase, there are no guidelines. Under Section III of ST/AI/338, the head of the department concerned is free to choose any short-listed candidate he judges to be best qualified for the job." C. The Applicant was duly considered for the post as his name appeared on the short list provided by the Appointment and Promotion Board. The Tribunal has held in Judgement No. 633, Al-Atraqchi (1993), paragraph IV that inclusion of a staff member's name on the short list establishes that the staff member was duly considered. D. The Administration's final selection of a candidate for the post can only be challenged on the grounds of such factors as prejudice, mistake of fact, discrimination or other extraneous considerations. The fact

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that the successful candidate for the ESCWA post had only been with ESCWA for a few months is not sufficient to prove the existence of any of these factors. E. The circumstances cited by the Applicant to show that the Administration had made a commitment to appoint him to the post are not sufficient to demonstrate the existence of such a commitment. F. Due process was respected in the appointment of a candidate other than the Applicant to the post. There is no merit to the Applicant's claim that the absence of a "reasoned decision" in this context establishes a lack of due process. G. The Applicant has not substantiated the existence of prejudice or other extraneous factors. III. For the foregoing reasons, the application is rejected in its entirety. (Signatures) Jerome ACKERMAN

Luis de POSADAS MONTERO

First Vice-President, presiding

Second Vice-President

Mayer GABAY

R. Maria VlCIEN-MlLBURN

Member Geneva, 14 July 1994

Executive Secretary

Judgement No. 645 (Original: English) Case No. 705: Fussimanya-Reyna

Against:

The Secretary-General of the United Nations

Application of a staff member of the United Nations for a remand of her case to the Joint Committee for Classification of General Service Posts, for retroactive reclassification of her post, for compensation and for costs. The Joint Appeals Board concluded that the Applicant had not received fair and proper treatment from her supervisors and that some of her claims had not been taken into consideration by the Classification Committee.—It recommended the remand of the case to the Classification Committee and a compensation equivalent to one month of net salary for the improper handling of the case.—Recommendations accepted. Respondent's contention that the Applicant's challenge to the classification of her post was time-barred.—The Tribunal finds that the Applicant failed to respect time limits laid down in staff rule 111.2 (a) with respect to the initial decision of classification of her post in

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1983 and that her application is time-barred with respect to the period preceding October 1987.—The Applicant contested within the prescribed time another decision on the classification of her post in 1987 and her application concerning this decision is not time-barred. The Tribunal recalls its jurisprudence in job classification matters as in its Judgement No. 396 (Waldegrave): it is not the role of the Tribunal to substitute itsjudgement for that of the Secretary-General and to attempt to determine how it would classify the post; the Tribunal's function is to determine whether the Respondent has acted within his reasonable discretion.—The Tribunal finds irregularities in the proceedings before the Classification Committee: failure to consult the Applicant on her modified job description and a reference to her conduct which was an extraneousfactor.—The evaluation of a postfor the purpose of classification must be conducted on the basis of objective criteria (Judgement No. 388, Moser).—The Committee failed to ensure that the job description was complete and reflected all of Applicant s duties and responsibilities. The Tribunal orders the remand of the case to the Respondent for an examination of the classification of the post on the basis of an objective evaluation of the Applicant's functions and awards the Applicant compensation of three months of net base salary, at the rate in effect on the date of judgement, for material and moral prejudice due to the mishandling of the case.—Request for costs rejected, pursuant to the Tribunal's jurisprudence (Judgement No. 237, Powell).

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, First Vice-President, presiding; Mr. Luis de Posadas Montero, Second Vice-President; Mr. Mayer Gabay; Whereas at the request of Montserrat Fussimanya-Reyna, a staff member of the United Nations, the President of the Tribunal, with the agreement of the Respondent, successively extended until 15 February, 15 May and 15 July 1992 the time-limit for the filing of an application to the Tribunal; Whereas, on 15 July 1992, the Applicant filed an application that did not fulfil all the formal requirements of article 7 of the Rules of the Tribunal; Whereas, on 4 November 1992, the Applicant, after making the necessary corrections, again filed an application, in which she requested the Tribunal, inter alia: '' To rescind the Secretary-General's decision of 6 September

1991 — Ordering that [the Applicant's] case be remanded to the Joint Committee for Classification of General Service Posts for a review as to whether changes in her functions have occurred since the initial classification of her post that would warrant its reclassification, and

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Administrative Tribunal of the United Nations — Granting [the Applicant] compensation equivalent to one month's net salary at her present grade and step. To declare that her post should be classified at the G-5 level retroactive to 2 July 1982; — To declare that [the Applicant] has been discriminated against since 3 March 1980 in respect of her job description and post classification, as well as her working conditions; — To award [the Applicant] compensation equivalent to the retroactive classification of her post at the G-5 level... — To award [the Applicant] compensation in an amount equivalent to at least one month's salary per year, as from 3 March 1980, in acknowledgement of and as reparation for the mental anguish she has suffered; — To award her a sum of US$ 5,000, as costs. »»

Whereas the Respondent filed his answer on 19 May 1993; Whereas the Applicant filed written observations on 5 November 1993; Whereas, on 5 July 1994, the Applicant submitted additional documents; Whereas the facts in the case are as follows: The Applicant entered the service of the United Nations on 3 May 1970. She was offered a probationary appointment as a Spanish Typist at the G-2, step 1 level at the UN Office in Geneva (UNOG). On 1 May 1973, the Applicant was transferred to the International Narcotics Control Board and given a permanent appointment. She was promoted to the G-3 level, with effect from 1 August 1972, as a Shorthand-Typist and to the G-4 level, with effect from 1 July 1975. On 3 March 1980, the Applicant was transferred to the General Services Division, Building and Engineering Branch. The Applicant's functional title was changed to Administrative Secretary, with effect from 1 April 1982. In connection with the reclassification of General Service posts at UNOG, mandated by the General Assembly in May 1980, the Applicant was given a copy of her job description. In a memorandum dated 8 January 1981, the Chief of the Engineering Unit recommended to the Chief of the Building and Engineering Branch that the Applicant be promoted to the G-5 level. On 2 July 1982, a Classification Officer interviewed the Applicant in the presence of the Chief of the Engineering Unit, to discuss her functions.

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In a letter dated 30 July 1982, the Applicant informed the Classification Officer that some elements were missing from her job description. On 16 February 1983, the Chief of General Services advised the Applicant that her post had been classified at the G-4 level. On 6 May 1983, the Applicant requested the Joint Committed for Classification of General Service posts (Joint Classification Committee) to review the decision. On 27 November 1984, the Secretary of the Joint Classification Committee informed the Applicant that, after considering the new information submitted, the Joint Classification Committee had decided to maintain the classification of her post at the G-4 level. On the same day, the Applicant filed a complaint with the Panel on Discrimination and Other Grievances (the Panel on Discrimination) alleging that she had been discriminated by acts of hostility and verbal aggression; non-recognition of the level of responsibilities inherent in her work and refusal to recommend her for promotion. On 7 June 1985, the Coordinator of the Panel on Discrimination submitted the Panel's report to the Director-General of UNOG and recommended that the Applicant's post be reclassified. On 21 June 1985, the Director-General informed the Coordinator of the Panel on Discrimination that he had decided to refer to the Personnel Service the question of the reclassification of the Applicant's post. In a confidential memorandum dated 19 November 1986, the Chief of Engineering Unit indicated to the Chief of Personnel that although certain changes had occurred in the Applicant's functions, these did not warrant a change in the classification of the level of her post. On 18 December 1987, the Chief of Personnel Administration Section informed the Applicant that the Joint Classification Committee had decided to maintain its decision to classify her post at the G-4 level. On 20 January 1988, the Applicant requested the Secretary-General to review this decision. In a reply dated 19 February 1988, the Assistant Secretary-General for Human Resources Management informed the Applicant that the Secretary-General had decided to maintain the decision. On 9 March 1988, the Applicant lodged an appeal against that decision with the Geneva Joint Appeals Board (JAB). On 20 May 1988, the Chief of Personnel Service wrote to the Co-Chairmen of the Joint Classification Committee, requesting them to review the Applicant's job description in light of the changes which had taken place in her functions since the last classification exercise. On the same date, the Chief, Personnel Administration Section, wrote to the Chief of General Services, asking him to prepare an updated job

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description of the Applicant's post for evaluation by the Joint Classification Committee. In a confidential memorandum dated 30 May 1988, the Chief of the Engineering Unit, who was the Applicant's supervisor, transmitted to the Classification Officer a modified job description for the Applicant's post. He reconfirmed his earlier assessment that the changes in the Applicant's functions were minor and did not warrant a reclassification of her post. In a letter dated 6 December 1988, to the Chief of Personnel Service, the Co-Chairmen of the Joint Classification Committee concluded that the changes in the Applicant's functions did not justify a modification in the level of the post. On 2 September 1988, the Applicant filed a detailed statement of appeal with the Joint Appeals Board (JAB). The Board adopted its report on 28 August 1991. Its conclusions and recommendations read as follows: "Conclusions and Recommendations 63. ... the Panel concludes that the Appellant did not receive fair and proper treatment from her supervisors in respect of her job description and consequently her post classification. 64. The Panel also concludes that the Appellant's claim that certain aspects of her functions were not sufficiently treated and that some elements, which were missing from her job description, had not been taken into consideration by the Classification Committee appears well-founded. 65. Accordingly, the Panel recommends that the Appellant's case of reclassification of her post be remanded to the Classification Committee for an objective and complete evaluation of her functions in accordance with pertinent rules and procedures regulating the classification process. In this connection, the Panel urges the Appellant to fully co-operate in this exercise. 66. The Panel also recommends that the Appellant be awarded a compensation in an amount equivalent to one month of her net salary at her present grade and step, for the mishandling of her job description, the regrettable delay in the consideration of this case and the mental anguish she suffered therefrom. 67. The Panel makes no further recommendation in support of the appeal." On 6 September 1991, the Acting Under-Secretary-General for Administration and Management transmitted to the Applicant a copy of the JAB report and informed her as follows: "The Secretary-General has re-examined your case in the light of the Board's report. He wishes first to reaffirm the validity of the

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initial classification of your post, your recourse against the classification decision having been rejected in 1984 by the Joint Classification Committee. In the light of the Board's recommendation in paragraph 65 of the report and bearing in mind that, in the reclassification review undertaken in 1988 at the request of the Chief, Personnel Service, the Joint Classification Committee considered: (i) a confidential memorandum from your supervisor which was not shown to you, and (ii) a revised job description prepared by your supervisor which you had refused to sign, without consideration having apparently been given to your views concerning the changes in functions, the Secretary-General has decided that the question of the reclassification of your post be remanded to the Joint Classification Committee for a full and fair review as to whether changes in functions which occurred after the initial classification of your post would warrant a reclassification. With regard to the Board's recommendation in paragraph 66 of the report, although the Secretary-General does not fully share the rationale of the Board's recommendation, he has decided, considering the entire circumstances of the case, to grant you compensation in an amount equivalent to one month's net salary at your present grade and step...." On 4 November 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contention is: The Applicant has been the victim of discrimination since 3 March 1980, with respect to her job description and post classification, as well as her working conditions. Whereas the Respondent's principal contentions are: 1. Any attempt by the Applicant to challenge the initial classification of her post is time-barred. 2. It is not the function of the Tribunal to substitute its judgement for that of the Secretary-General in job classification matters. 3. The Applicant has been adequately compensated for any irregularity which may have occurred in the handling of her case. The Tribunal, having deliberated from 23 June to 14 July 1994, now pronounces the following judgement: I. The Tribunal must first deal with the Respondent's contention that the Applicant's challenge to the initial classification of her post is time-barred.

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II. It is not in dispute and it appears clearly from the record that since July 1982, through various United Nations administrative venues, the Applicant has never ceased in her attempt to obtain the reclassification of her post at the G-5 level. Nevertheless, a distinction has to be made between the period preceding October 1987 and thereafter. III. The Respondent submits that with respect to the initial classification of her post, the Applicant failed to respect staff rule 111 .2(a) and therefore her claim is time-barred. On 16 February 1983, the Chief of Personnel Administration Section informed the Applicant that the classification of her post remained at the G-4 level. It was only in May 1983, that the Applicant contested that decision. Therefore, when she filed her appeal at this time, the Applicant was not within the two-month time-limit set forth in staff rule 111.2(a). The Applicant, instead of seeking a formal review of the decision to classify her post at the G-4 level, chose to file a complaint with the Panel on Discrimination. It may have been more expedient and efficient for the Applicant to choose this alternative since the decision not to reclassify her post at the G-5 level was inextricably bound to her allegations of discrimination and harassment by her superiors. However, the Panel on Discrimination is not the proper forum for reclassification matters. IV. Accordingly, the Tribunal concludes that the application is time-barred with respect to the period preceding October 1987, the time when the classification of the Applicant's post was reconsidered by the Joint Classification Committee. V. On 18 December 1987, the Chief of Personnel Administration Section informed the Applicant that the Joint Classification Committee had decided to maintain its decision to classify her post at the G-4 level. On 20 January 1988, the Applicant wrote to the Secretary-General requesting a review of this decision. Accordingly, the Applicant acted within the two-month time-limit provided in staff rule 111.2(a). Her application concerning this decision is not time-barred. VI. On the substantive issue, the Tribunal recalls its jurisprudence in Waldegrave that: "It is not the function of the Tribunal to substitute its judgement for that of the Secretary-General in job classification matters. This would be so even if the Tribunal had the required expertise in this area—which it does not. For the most part, the arguments advanced on behalf of the Applicant seek to have the Tribunal determine independently how it would classify the post in question, but this is not the role of the Tribunal. It is instead the function of the Tribunal to determine whether under all the circumstances, the Respondent has acted within his reasonable discretion. . . ." (Judgements No. 396, Waldegrave (1987), and No. 409, Trenner (1988).)

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The Tribunal now turns its attention to the issue before it, namely whether the Respondent acted within his reasonable discretion when he classified the Applicant's post at the G-4 level. VII. The Applicant alleges that, at her first meeting with her supervisor, the Chief of the Engineering Unit, she was informed of his belief that her post would be classified at the G-5 level as it entailed various administrative functions. This allegation has not been disputed. In a memorandum dated 8 January 1981, addressed to the Chief of the Building and Engineering Branch, the Chief of the Engineering Unit strongly recommended that the Applicant be promoted to the G-5 level. The Applicant's supervisor later changed her job description, without her consent or adequate prior consultation with her. VIII. The Tribunal notes that while the case was pending before the JAB, on 30 May 1988, the Chief of the Engineering Unit, without consulting the Applicant, sent a modified job description of her post to the Joint Classification Committee. He added that the change which had taken place in her functions did not warrant a change in the classification of the post. Moreover, he also referred to the Applicant's professional conduct. The failure to consult the Applicant, as well as the consideration of her conduct, which introduced an extraneous factor in the classification process, constituted irregularities. The Chief of the Engineering Unit may have indeed succeeded in influencing the Co-Chairmen of the Joint Classification Committee by this memorandum which they had before it when they reached their decision, in particular, as during the earlier deliberations of the Joint Classification Committee, the Applicant's post fell short of the G-5 level classification by a little over one point. In other words, her post fulfilled 98.44% of the requirements for this classification. IX. The evaluation of a post for the purpose of classification must be conducted on the basis of objective criteria. This principle has been underscored by the Administrative Tribunal in Judgement No. 388, Moser (1987) where it held: "The classification of each post depends on the nature of the duties and responsibilities assigned to it and not on the personal qualifications, experience or performance of the incumbent. Therefore, posts should be classified according to their respective job descriptions, which must be presumed to set forth accurately the nature of the duties and responsibilities of the job. Classification refers to the task to be performed by the incumbent of a given post; promotion is, in principle, connected to the way that task is performed, and takes into consideration performance evaluation reports." As classification of a post is based on the job description, the Joint Classification Committee, in order to properly classify the Applicant's

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post, should have ensured that the job description was complete and included all her duties and responsibilities. It appears that the Committee failed to do so. X. Based on the above considerations, the Tribunal finds that the Applicant's case should be remanded to the Respondent. He should arrange for the classification of the Applicant's post by the Joint Classification Committee, on the basis of an objective evaluation of her functions. (Cf. Judgement No. 602, Calder (1993) and Judgement No. 597, Colayco (1993).) The Tribunal assumes that the Applicant will co-operate in this exercise. XL It is clear to the Tribunal, having reviewed the facts, that the Applicant has suffered material and moral prejudice due to the mishandling of her case. The Tribunal assesses three months net base salary at the Applicant's present grade and step as adequate compensation. XII. In view of the foregoing, the Tribunal orders that: (a) The case be remanded as set forth in paragraph X above; (b) The Respondent pay to the Applicant the amount of three months of her net base salary at the rate in effect on the date of this judgement; (c) All other pleas are rejected, including the Applicant's pleas relating to the period prior to October 1987, which are time-barred. XIII. The Applicant's request for costs is rejected, pursuant to the Tribunal's jurisprudence, as stated in Judgement No. 237, Powell (1979). (Signatures) Jerome ACKERMAN

First Vice-President, presiding Mayer GABAY

Member Geneva, 14 July 1994

Luis de POSADAS MONTERO

Second Vice-President R. Maria VlCIEN-MlLBURN

Executive Secretary

Judgement No. 646

101

Judgement No. 646 (Original: English) Case No. 726: Soltes

Against: The Secretary-General of the United Nations

Application of aformer staff member of the United Nations for payment of his repatriation grant in US dollars, British pounds or Kuwaiti dinars and for reimbursement of income tax levied on his salary by the Czechoslovak government. The Joint Appeals Board concluded that the repatriation grant is normally paid in the country of the home country as its purpose of is to facilitate staff member's reintegration.—It found that the Applicant's intentions to reside in Kuwait had not materialized and that there was therefore no basis for the payment of the grant in that country's currency. The Tribunal declares that, under the Staff Regulations and Rules, the repatriation grant should be payable in the currency of the home country or in a different currency, subject to the submission of evidence of relocation away from the country of the last duty station.—Although the Applicant stated that he intended to establish his residence in Kuwait, he did not actually do so as he was evacuated from that country because of the war.—Evidence points that he resides in Slovakia.—The Tribunal concludes that, since the repatriation grant is intended to facilitate the integration of the staff member in the place where he or she will reside, the Administration correctly decided to pay the grant in the currency of the home country.—The claim concerning reimbursement of income tax is not receivable as it was not previously submitted to a joint appeals board. Application rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, First Vice-President, presiding; Mr. Luis de Posadas Montero, Second Vice-President; Mr. Mikuin Leliel Balanda; Whereas, on 23 March 1993, Dusan Soltes, a former staff member of the United Nations, filed an application in which he requested the Tribunal, inter alia: "(a) To order [the Secretary-General]: (ii) To submit [a complete itemized statement of the balance of his accounts for payments due for his] services in Burma under UNDTCD/BUR/83/004 (1985-90).... (b) ...

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Administrative Tribunal of the United Nations (i) [To make the final payment due to the Applicant in US dollars, in British Pounds or in Kuwaiti Dinars, instead of in the currency of his home country]; (ii) [To reimburse him for] income tax levied on my salary in 1989 in the amount of US$ 15,500 which I had to pay to the former Czechoslovak Socialist Government (...);

(d) [To compensate him for lost interest on the payment due at the rate paid on his] Chemical Bank . . . super-savings account during the period from October 1990 to the date of the deposit of all outstanding payments to my particular account..." Whereas the Respondent filed his answer on 15 July 1993; Whereas the Applicant filed written observations on 21 August 1993; Whereas, on 30 September 1993, the Respondent submitted an additional document and on 15 December 1993, the Applicant provided his comments thereon; Whereas, on 7 July 1994, the presiding member of the panel ruled that no oral proceedings would be held in the case; Whereas the facts in the case are as follows: The Applicant, a national of the former Czech and Slovak Federal Republic, served on a project personnel appointment, under the 200 Series of the Staff Regulations and Rules, at the L-5, step V level, as a Computer Training Expert in the former Department of Technical Co-operation for Development (DTCD), from 1 June 1985 through 30 June 1990. His official duty station was Yangoon, Union of Myanmar. At the end of the Applicant's assignment, in a cable dated 6 July 1990, DTCD authorized the Applicant's repatriation. The International Telecommunication Union (ITU) then recruited the Applicant for a mission in Kuwait, initially for a period of one year, with effect from 10 July 1990. On 21 July 1991, DTCD informed the Applicant that his repatriation grant would be payable in the currency of his home country, the Czech and Slovak Federal Republic. On 30 September and 16 October 1991, the Applicant requested the Secretary-General to review this decision. On 18 November 1991, the Office for Human Resources Management agreed, as an exception, to pay the repatriation grant in Kuwaiti currency, upon the condition that the Applicant legally change his residence to Kuwait. This decision was communicated to the Applicant on 2 December 1991.

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According to the record, the Applicant resides in the former Czech and Slovak Federal Republic,1 awaiting authorization to return to his assignment in Kuwait. On 19 January 1992, the Applicant lodged an appeal with the Joint Appeals Board (JAB). The JAB adopted its report on 14 January 1993. Its considerations, conclusions and recommendations read as follows: "Considerations 19. The Panel considered that it would be unlikely for the Appellant to return to Kuwait as ITU had advised the JAB, via fax dated 18 October 1992, that the Appellant's contract had ended on 18 July 1991. 20. The Panel further considered that repatriation grants are made in the currency of a staff member's home country because the purpose of such grants is to facilitate reintegration. The Appellant did return to his home country, the Czech and Slovak Federal Republic. Conclusions and Recommendations 21. The Panel concluded that there was no longer any basis for payment of the Appellant's repatriation grant in Kuwaiti currency because the Appellant neither returned to Kuwait nor does it appear that he is to be returned there by his former employer. 22. The Panel also concluded that the Appellant has given no grounds for demanding that his repatriation grant be paid in US dollars; he was not repatriated to the United States nor does he reside in that country. 23. Therefore, the Panel recommends that, in accordance with staff rule 209.8, the Appellant be paid his repatriation grant in the currency of his home country, the Czech and Slovak Federal Republic." On 3 February 1993, the Director of Personnel transmitted to the Applicant a copy of the JAB report and informed him as follows: "The Secretary-General has examined your case in the light of the Board's report. He agrees with the Board's conclusion and recommendation that, in the absence of proof of relocation you be paid repatriation grant, as provided for under staff rule 209.8, in the currency of your home country, the then Czech and Slovak Federal Republic." On 23 March 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 'As of December 1992, the Czech and Slovak Federal Republic ceased to exist. At present the Applicant resides in Slovakia.

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1. The repatriation grant should be paid in US dollars, in British pounds, or in Kuwaiti dinars. 2. The Applicant is entitled to reimbursement of taxes levied on his salary by the former Czech and Slovak Federal Republic. Whereas the Respondent's principal contentions are: 1. The Applicant's plea for reimbursement of income taxes is not receivable because it was not previously submitted to a joint appeals board, pursuant to article 7.1 of the Tribunal's Statute. 2. There is no legal basis for the payment of the Applicant's repatriation grant in a currency other than that of his country of residence. The Tribunal, having deliberated from 27 June to 15 July 1994, now pronounces the following judgement: I. The Applicant served as a Computer Training Expert in the former Department of Technical Co-operation for Development, Technical Assistance Recruitment and Administration Service (TARAS) in Yangoon, Union of Myanmar, until 30 June 1990. He was then recruited by the International Telecommunication Union for a mission in Kuwait, with effect from 10 July 1990. At the end of his assignment in Myanmar, the Applicant was informed that the repatriation grant due to him was payable in the currency of his home country, the Czech and Slovak Federal Republic. II. After requesting the Administration, without success, to pay his repatriation grant in US dollars, in British pounds, or in Kuwaiti dinars, the Applicant filed his appeal with the Tribunal. III. Firstly, the Applicant maintains that his repatriation grant should be paid in US dollars, in British pounds or in Kuwaiti dinars, on the ground that Kuwait was the country where he intended to establish his residence following the expiration of his appointment with TARAS, had he not been evacuated to his country of origin. IV. The Respondent maintains that there is no legal basis for the payment of the Applicant's repatriation grant in a currency other than that of his country of residence. In fact, the Respondent, in the exercise of his discretion, agreed to pay the grant in Kuwaiti currency, if the Applicant actually established his residence in Kuwait. V. According to current Staff Regulations and Rules, the repatriation grant should be payable in the currency of the home country of the staff member or in a different currency, subject to the submission by the former staff member of evidence of relocation away from the country of the last duty station. (See staff regulation 9.4 and Annex IV to the Staff Regulations and staff rule 209.8.) VI. In the present case, the Applicant states, but without submitting proof of residence in Kuwait, that he intended to reside there. His

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permit of residence was issued to this effect for five years, from 1 July 1990 to July 1995, but the Applicant was evacuated from Kuwait because of the Persian Gulf war. Hence, he did not actually establish a residence in Kuwait in any meaningful sense of the word. His intention alone is insufficient, as the employment contract on which it was based was not fulfilled because of the war. The Applicant does not prove that he has established his residence in the USA or in Great Britain. Thus, he has no basis for claiming payment of his repatriation grant in the currency of either of these two countries. VII. The Tribunal finds that the application, the written observations and a letter dated 1 June 1994, submitted by the Applicant, were sent from Bratislava in Slovakia, where, it appears to the Tribunal, the Applicant has maintained his residence since the expiration of his contract on 30 June 1990, after his evacuation from Kuwait. VIII. Therefore, in conformity with the objectives of the repatriation grant, to facilitate the integration of the staff member in the place where he or she will reside, the Administration correctly decided to pay the repatriation grant in the currency of the Applicant's home country. IX. Secondly, the Applicant contends that he has a right to reimbursement of taxes levied on his UN salary, in 1989, by the Czech and Slovak Federal Republic. The Respondent maintains that the claim is not receivable because it was not previously submitted to a joint appeals board. X. The Tribunal agrees with the Respondent and finds that this claim is not receivable because it was not previously submitted to a joint appeals board, pursuant to article 7.1 of the Tribunal's Statute. XI. For the foregoing reasons, the Tribunal rejects the application in its entirety. (Signatures) Jerome ACKERMAN First Vice-President, presiding Mikuin Leliel BALANDA Member Geneva, 15 July 1994

Luis de POSADAS MONTERO Second Vice-President R. Maria VlCIEN-MlLBURN Executive Secretary

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Administrative Tribunal of the United Nations Judgement No. 647 (Original: French)

Case No. 698: Pereyra

Against:

The Secretary-General of the United Nations

Application of a former staff member of the United Nations for rescission of decision not to renew her fixed-term appointment and for payment of a termination indemnity or of compensation, and for costs. The Joint Appeals Board concluded that, after seven years of continuous service the Applicant had a reasonable expectation of renewal and that her situation was analogous to that of a permanent staff member whose post had been abolished.—It recommended the payment of a termination indemnity which she would have received if she were a permanent staff member-Recommendation rejected. In accordance with its consistent case law, the Tribunal does not subscribe to the opinion of the Joint Appeals Board that, after several years of continuous service, the Applicant's legal status should be assimilated to that of a permanent staff member.—This would eliminate the distinction between the rights of staff members on permanent and on fixed-term appointments.—A staff member cannot claim a legal status different from his contractual status (Judgement No. 233, Texeira) and the Applicant had no right to a renewal of her appointment or to a termination indemnity.—However, in the absence of such a right a staff member on fixed-term appointment extended over a long period of time whose service have been favourably evaluated may have a reasonable expectancy of renewal.—The objective existence of such expectancy is not automatic and must be considered on a case-to-case basis.—Applying the case law deriving, inter alia, from Judgement No. 233, the Tribunal finds that in this case the Applicant had a reasonable expectation of renewal and is therefore entitled to some compensation. Applicant's plea of rescission of the decision not to renew her fixed-term appointment rejected.—Award of indemnity in the amount of $5,000.—Request for costs rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Hubert Thierry; Mr. Francis Spain; Whereas, on 12 October 1992, Dorilda Serafina Pereyra, a former staff member of the United Nations, filed an application requesting the Tribunal, inter alia: "To order the rescission of the decision . . . not to renew my contract or pay me an indemnity ...; To order that I be paid an indemnity equivalent to seven months' pensionable remuneration,..., plus costs;

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In the event that the Secretary-General decides that compensation be paid, in the interest of the United Nations, to order payment to me of compensation in the amount of $10,000." Whereas the Respondent filed his answer on 17 February 1993; Whereas the Applicant filed written observations on 12 April 1993; Whereas the facts in the case are as follows: The Applicant, a national of Argentina, a local recruit, was employed by the Economic Commission for Latin America and the Caribbean from 15 April to 31 December 1984 as a library assistant at the GS-3 or GS-4 level under a series of Special Service Agreements. On 1 January 1985, the Applicant was given a six-month fixed-term appointment at the GS-3, step 1, level as a typist on a part-time basis. She was subsequently given a series of fixed-term appointments, the last of which expired on 31 July 1991. The Applicant asserts that upon the expiration of mat last appointment she was informed that it would not be extended. According to the file, the appointment was not extended for budgetary reasons. The letters of appointment, as well as the personnel action forms implementing the appointments, specified that the Applicant's entitlements were to be considered in accordance with administrative instruction ST/AI/291 on part-time employment. With effect from 1 January 1985, the Applicant had the functional title of library clerk and her post was reclassified to GS-4, step 1. On 26 September 1991, the Applicant wrote to the Secretary-General requesting an administrative review of the decision not to renew her appointment and not to pay her a termination indemnity. On 23 December 1991, having received no substantive reply from the Secretary-General, the Applicant filed an appeal with the Joint Appeals Board (JAB). The JAB adopted its report on 18 June 1992. Its considerations and recommendation read, in part, as follows: '"''Considerations 13. In view of the length of the Appellant's continuous and apparently satisfactory service—involving more than a dozen renewals of her contract—the Board was of the opinion that she had a reasonable and justifiable expectation that her contract would be renewed again in July 1991. In fact the reason her last contract was not renewed was because there was no longer funding to cover her post, which was apparently abolished. Accordingly, the Board considered that her situation, after more than seven years of continuous service, was essentially analogous to that of a permanent staff member whose post is abolished and who is, therefore, entitled to a termination idemnity.

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14. As regards the calculation of a termination benefit in the Appellant's case, the Board was of the view that ST/AI/291 on part-time employment and Annex III of the Staff [Regulations] on termination benefits would allow the payment of a termination benefit at the part-time rate for her period of service under continuously renewed contracts, i.e. six years and seven months. Recommendation 15. The Board recommends that the Appellant be paid the same termination indemnity she would have received had she been a permanent part-time staff member. This amount, in accordance with paragraph 6 of ST/AI/291 and Annex III of the Staff [Regulations], should be calculated on the basis of six years and seven months of service at her part-time salary." On 1 July 1992, the Assistant Secretary-General for Human Resources Management transmitted to the Applicant a copy of the JAB report and informed her as follows: "The Secretary-General has re-examined your case in the light of the Board's report. Bearing in mind that: (a) Under your terms and conditions of employment set out in your successive letters of appointment and in staff rule 109.7(b), the expiration of your appointment on the expiration date specified in your letter of appointment cannot be regarded as a termination within the meaning of the Staff Regulations and Rules, and does not therefore give rise to a termination indemnity; (b) There is no provision in the Staff Regulations and Rules under which extended service would automatically trigger conversion of a fixed-term appointment to any other type of appointment; (c) Even though you were a staff member for six years and seven months, you served on a part-time basis under the provisions of ST/AI/291, the Secretary-General cannot accept the Board's conclusion that your situation was 'essentially analogous to that of a permanent staff member whose post is abolished and who is, therefore, entitled to a termination indemnity.' Accordingly, he has decided to reject the Board's recommendation that you should be paid a termination indemnity and to maintain the contested decision." On 12 October 1992, the Applicant filed with the Tribunal the application referred to above. Whereas the Applicant's principal contentions are: 1. Since the Applicant had given the Organization more than six years of continuous and satisfactory service and was performing functions of a permanent nature, she had a reasonable expectation that her appointment would be extended.

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2. The Applicant should be assimilated to a staff member on a permanent contract. Whereas the Respondent's principal contentions are: 1. Temporary appointments do not carry any expectation of renewal. No circumstances exist which give rise to any legal expectancy of renewal. 2. The Applicant cannot be assimilated to a permanent staff member in order to receive a termination indemnity; upon the expiration of her temporary appointment, she was not entitled to such an indemnity. The Tribunal, having deliberated from 27 June to 15 July 1994, now pronounces the following judgement: I. The Tribunal is asked to decide on the Applicant's legal status and to draw conclusions as to her rights following the non-renewal of contracts under which she discharged the functions of part-time library assistant with the Economic Commission for Latin America and the Caribbean from January 1985 until 31 July 1991. The Tribunal must determine whether the Applicant was entitled to the renewal of her last contract and whether she can claim compensation because of its non-renewal. II. According to the Applicant's arguments, in which the Joint Appeals Board concurred, because of her continuous service for more than six years and the favourable performance reports on that service her legal status was comparable or analogous to that of a permanent staff member and should be assimilated to it. In accordance with this view, the Applicant would have been entitled to the renewal of her contract and, in the event of non-renewal, to payment of a termination indemnity in accordance with Annex III to the Staff Regulations. The Tribunal, in accordance with its consistent case law on this matter, does not subscribe to such assimilation, which would contradict the terms of contracts freely accepted by the Applicant. It would also eliminate the distinction clearly established in the Staff Regulations between the rights of staff members on fixed-term contracts and those of permanent staff members. In the Teixeira case, where the Tribunal was also asked to take into consideration a factual situation which the Applicant maintained was in contradiction with his contractual status, the Tribunal stated that: "the Applicant cannot use his factual situation as an argument to claim a legal status different from his contractual status" (Judgement No. 233, para. IV (1978)). The same applies in the present case and the Applicant did not therefore have an acquired right to the renewal of her contract or to a termination indemnity in accordance with Annex III to the Staff Regulations.

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III. In the absence of a right to the renewal of their contract or to a termination indemnity in accordance with Annex III to the Staff Regulations, staff members on fixed-term contracts extended over a long period of time whose services have been favourably evaluated may, in certain cases, have a reasonable expectancy that their contracts will be renewed. When this expectancy is not met, for example if their post is abolished, it must be taken into account. The objective existence of such a reasonable expectancy is not automatic and must be considered on a case-by-case basis by the Administration and, when appropriate, by the Tribunal. It is because of the existence of such reasonable expectancy that the Tribunal decided in the Teixeira case that: "in view of the length of the period during which the Applicant worked for ECLA and the Administration's ratings of the quality of his work, as are contained in the dossier, the Tribunal considers that, although his contracts contained no provisions to that effect, the Applicant could count on receiving a termination indemnity from the Respondent." (Cf. Judgement No. 233, Teixeira, para. XII (1978).) In the present case and in view of the circumstances, the Tribunal considers that it should apply the case law deriving, inter alia, from Judgement No. 233. The Applicant was employed continuously and gave satisfactory service for more than six years. Her contracts were renewed 12 times and, even though she did not have a right to their renewal, the Tribunal finds that in the particular circumstances of this case, the Applicant had a reasonable expectation of renewal. This would justify the payment of some compensation. IV. For these reasons, the Tribunal: (a) Rejects the Applicant's plea for the rescission of the decision of the Secretary-General not to renew her contract. (b) Decides that she should be paid an indemnity in the amount of $5,000. (c) Rejects the plea for reimbursement of costs. (Signatures)

Samar SEN President

Francis SPAIN Member Geneva, 15 July 1994

Hubert THIERRY Member

R. Maria VICIEN-MlLBURN Executive Secretary

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Judgement No. 648 (Original: English) Case No. 690: Sa'adiyeh

Against: The CommissionerGeneral of the United Nations Relief and Works Agency for Palestine Refugees in the Near East

Application of a staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)for rescission of the decision not to accept the recommendation of the Joint Appeals Board, for consideration of the Applicant's cessation of service as special leave with pay, for compensation and for costs. The Joint Appeals Board concluded that there had been some irregularities in the decision to terminate the Applicant's appointment on grounds of redundancy.—It recommended his reinstatement and consideration of the period between the cessation of service and reinstatement as special leave with pay.—Recommendation rejected.—Subsequently the Applicant was reappointed to another post. The Tribunal finds that, when the Applicant's post was abolished, a situation of redundancy existed.—Having considered all the circumstance of the case the Tribunal is unable to find that the termination of the Applicant's services was due to prejudice and considers that correct procedures were followed in abolishing the post.—The Administration did not do all that it reasonably could to find an alternative postfor the Applicant, which it was under an obligation to do.—While noting with satisfaction that the Applicant was reappointed, the Tribunal takes into account several other factors.—The Administration made the Applicant's situation difficult by offering him subsequently a choice between reinstatement, with grade protection but with the repayment of separation benefits—which he was unable to do—and re-appointment at a lower grade with no repayment.—The Applicant, who had been working for 11 years and was not responsible for the redundancy, deserves compensation. The Tribunal orders the payment to the Applicant of his net base salary, at the rate in effect on the date of separation, from the date of his separation until re-appointment and the payment by way of damages of four months net base salary at the rate in effect on the date of separation.—Award of $500for legal costs, instead of $19,000 requested, in keeping with the Tribunal's jurisprudence.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Hubert Thierry; Mr. Francis Spain; Whereas, on 11 July 1992, Muwaffaq Mahmoud Sa'adiyeh, a staff member of the United Nations Relief and Works Agency for Palestine

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Refugees in the Near East, hereinafter referred to as UNRWA, filed an application, requesting the Tribunal to order, inter alia: "(a) As a preliminary measure, providing the Applicant with a copy of the Personnel Directive of the Respondent. (b) Rescinding the Commissioner-General's decision not to accept the recommendation of the Joint Appeals Board. (c) Considering the period of the Applicant's cessation from duty as special leave with full pay. (d) Payment of compensation for the injury sustained by the Applicant during the period of cessation, including expenses and legal counsel's fees estimated at US$ 19,000." Whereas the Respondent filed his answer on 22 January 1993; Whereas the Applicant filed written observations on 15 April 1993; Whereas, on 15 April 1993, the Applicant submitted additional pleas to the Tribunal, including a request for costs "estimated at US$ 750.00;" Whereas, on 28 June 1994, the President of the Tribunal ruled that no oral proceedings would be held in the case; Whereas the facts in the case are as follows: The Applicant, an area staff member, entered the service of UNRWA on 20 August 1980, on a one year fixed-term appointment, as a Trades Instructor (Welder General) at the grade 08, step 1 level, in the Damascus Vocational Training Centre (DVTC), in the Syrian Arab Republic. He was subsequently offered a temporary indefinite appointment to the same post, at grade 09, step 1 level, with effect from 1 September 1981. On 15 July 1991, the Applicant wrote to the Director of UNRWA Affairs in the Syrian Arab Republic, stating that he had learned from the Principal of the DVTC that a post of Trades Instructor (Welder General) would be made redundant. He requested that, should his post be abolished, he be given the opportunity to enrol in a "two year training course—Machine Maintenance and Repair . . ." at Wadi Al-Sir Vocational Training Centre in Jordan, "during the academic year 1991/1992". On 18 July 1991, the Principal of the DVTC wrote, through the Field Education Officer, to the Field Personnel Officer in the Syrian Arab Republic, recommending the abolition of the Applicant's post on the ground of redundancy. On 23 July 1991, the Field Administration Officer replied to the Field Education Officer. Noting that the proposal to abolish the Applicant's post was "reasonable" and "justified", he suggested that, before any action was taken, he consider the possibility of transferring one of the

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three Trades Instructors (Welder General) to the vacant post of Housemaster at the DVTC. In a reply dated 25 July 1991, the Field Education Officer advised the Field Administration Officer that none of the three welding instructors (including the Applicant) was qualified for the post of Housemaster. The Applicant wrote to the Director of UNRWA Affairs on 28 July 1991, explaining that his post was to be abolished and seeking his assistance in appointing him to the post of Housemaster. On 2 September 1991, the Field Personnel Officer wrote to the Applicant to inform him of the Agency's decision to terminate his services on grounds of redundancy, as follows: "Further to the information communicated to you through your supervisors, this is to confirm that the post of Trades Instructor Welder which you currently fill has been abolished effective 1 September 1991. In the circumstances, and as there is at present no suitable vacant post into which you can be accommodated, your services shall be terminated on grounds of redundancy effective Close of Business on 31 August 1991, under the provisions of area staff rule 109.1." On 25 September 1991, the Applicant requested administrative review of the decision to terminate his services on grounds of redundancy, in accordance with area staff rule 111.3(1). He claimed that he had not been considered for another post because of prejudice against him. He asked that his termination be reconsidered and that he be offered an alternative post. In a reply dated 9 October 1991, the Officer-in-Charge at the Field Office confirmed the Commissioner-General's decision, and assured the Applicant that the Agency would give due consideration to future applications for any position which matched his qualifications. On 24 October 1991, the Applicant lodged an appeal with the Joint Appeals Board (JAB). The JAB adopted its report on 23 April 1992. Its findings and recommendation read, in part, as follows: "c. ... the Board believes that more consideration could have been made to keep the Appellant in the Agency's service prior to terminating his services on grounds of redundancy. e. Although the Board does not see on [the] surface that the administrative procedure in dealing with the Appellant's case and his termination on grounds of redundancy were an abrogation of the Agency's standing rules and regulations, yet the clear lack of appropriate endeavours to find him an alternative suitable post makes the

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Board infer that the Appellant was a victim of some prejudice and that his redundancy problem was not handled carefully. 8. Recommendations In view of the foregoing, the Board makes the following recommendations: (a) Reinstatement of the Appellant in any vacant post with which his qualifications are commensurate and in a manner that is not disadvantageous to him. (b) Considering the period between the date of terminating his services, i.e. 31 August 1991 and the date of his reinstatement as special leave with full pay." On 21 May 1992, the Commissioner-General transmitted to the Applicant a copy of the JAB report and informed him as follows: "I understand that the Administration did endeavour to find another post for you, that you were duly considered for the only other suitable post that was vacant at the time of your separation, but that you were found not fully qualified for it. Therefore, regretfully, I have to inform you that I am unable to accept the Board's recommendations and that the decision to terminate your services on grounds of redundancy will stand. Although we can do nothing more in respect of your former service with UNRWA, I am pleased to note that you are now being offered new employment with UNRWA in a grade 06 post of Clerk 'B'." On 24 May 1992, the Field Administration Officer wrote to the Applicant, offering him re-employment by way of reinstatement to the post of Storekeeper, which is normally a grade 06 post, at grade 08, step 13, thereby minimizing as much as possible the salary difference between his former post of Trades Instructor (grade 10) and his new appointment. On the same date, the Applicant acknowledged with thanks the Field Administration Officer's letter and sought further information about the offer. In a reply dated 25 May 1992, the Field Administration Officer provided the Applicant with further details and confirmed that, on re-instatement, the Applicant would have to repay separation benefits he had received, in the same amount and currency. On 26 May 1992, the Applicant wrote to the Field Administration Officer, setting some conditions to his acceptance of the offer to re-employ him. However, on 28 May 1992, the Applicant signed a statement by which he accepted appointment to the post of Storekeeper, without prejudice to his recourse to the Tribunal. On or about 5 July 1992, the Field Personnel Officer explained to the Applicant that since his separation from the Agency had occurred less than 12 months ago, his re-employment should normally be implemented

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by way of reinstatement instead of reappointment. In a letter to the Applicant dated 15 July 1992, the Field Administration Officer explained that the offer of re-instatement included protection at grade 08, step 13, and that in the event of his accepting the alternative offer of re-appointment, he would be placed at grade 06, step 16. In a reply dated 25 July 1992, the Applicant requested, inter alia, that he be paid his salary for the period that followed the termination of his services until his re-employment, and that he be reappointed at grade 08, step 13, with effect from 1 September 1992. The Field Administration Officer wrote back on 27 July 1992, denying the request for back pay and stating the two options that were available to the Applicant, as: (a) To accept grade protection at grade 08, and repay separation benefits; or (b) To accept appointment at grade 06, with no grade protection, and not repay separation benefits. The Applicant elected, in a letter dated 5 August 1992, to be reappointed at grade 06, step 16, and reserved his right to pursue his case before the Tribunal. His re-appointment was later confirmed by the Field Personnel Officer, in a letter dated 31 August 1992. On 11 July 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contention is: An agreement had been made as to which instructors would be made redundant, and consequently, the decision to terminate the Applicant's services was based on prejudice and abuse of authority. Whereas the Respondent's principal contentions are: 1. The Joint Appeals Board duly considered all the submissions filed by the Applicant. 2. The Applicant's services were validly terminated on grounds of redundancy in accordance with the rules. 3. The Applicant has been re-employed and reappointed to another suitable post. The Tribunal, having deliberated from 27 June to 20 July 1994, now pronounces the following judgement: I. The Tribunal finds that, when the Applicant's post was abolished, a situation of redundancy existed. The question is whether the Applicant was selected from the three possible candidates for redundancy because of bias and prejudice against him. II. According to the record, as far back as 1988, the Applicant and his fellow instructors were told of the impending abolition of two Trades Instructor posts at the Damascus Training Centre.

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III. The first abolition of posts took place in 1990/1991. According to the Applicant, it had been agreed among the instructors, allegedly in the presence of the Senior Trades Instructor, that Mr. Yasin and Mr. Suleh, other area staff members, would accept termination. Mr. Yasin's post was eliminated in 1990/1991. He, in fact, requested early voluntary retirement in lieu of termination of appointment on grounds of redundancy. FV. With respect to the abolition of the second post, the Applicant claims that, although Mr. Suleh wanted to accept the redundancy of his post, he was not allowed to do so by the Principal, because the Principal wanted to get rid of the Applicant. V. The Applicant claims that when the Principal asked verbally which of the remaining three instructors wished his post to be abolished, Mr. Suleh requested that his post be the one but that the Principal told him to think carefully as his livelihood was involved. The Applicant also claims that Mr. Suleh told another person, who is unnamed, that when he went to the Principal to indicate that he would accept the redundancy, the Principal said that he should consider that the Principal had not heard him; when he again went to the Principal, Mr. Suleh was told that he was not free to take the decision. VI. It was the Principal who recommended that of the three remaining instructor posts, the Applicant's post be abolished. The Field Administration Officer, to whom this recommendation was made, asked that one of the three be considered for the post of Housemaster in lieu of termination. The Field Education Officer, however, replied that none of the three was qualified for this post. VII. As further evidence to support his contention of prejudice, the Applicant refers to the Principal's reluctance to discuss the matter directly with him and to his refusal to make an appointment for the Applicant to see the Director of UNRWA Affairs, Syrian Arab Republic. The Applicant also refers to what he describes as the Hourani case, a case which led to disciplinary action. He says that, because he refused to follow the Principal's line in that case, the Principal became enraged. Indeed, the Applicant says that a letter dated 3 June 1991, which was critical of him, arose only because of the Hourani incident. He claims that another letter critical of him, dated 2 July 1989, was also unjustified. On the matter of Hourani, the Applicant says that he was told by the Principal, in the presence of the Senior Trades Instructor: "Let Hourani do you good, you should not have testified as you did in Hourani's case." VIII. The Administration's response to the Applicant's case is that, in effect, the relevant rules, regulations and procedures were followed.

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IX. The question of whether there was properly a redundancy need not be discussed, as not even the Applicant denies this. The question is whether the decision to terminate the Applicant's services rather than those of Mr. Suleh was the correct one. X. The Agency says that the termination was effected on the basis of a study of past performance reports. It says that it acted in accordance with personnel directive A/9. The evaluation carried out showed one incumbent with better performance reports than the Applicant, the other two (including the Applicant) had the same grading. The incumbent with equal grading to the Applicant's had no letters of reprimand on his file. Finally, as the Applicant was the one with the shortest service, it was correct to choose his post for abolition. XL While the Agency acted properly on the face of it, should it have taken into account the agreement, if there was one, referred to by the Applicant? Mr. Yasin's departure was undoubtedly voluntary but what evidence is there that it resulted from an agreement? The agreement was supposedly made in the presence of several others, yet no evidence has been adduced from them. Equally, there is a lack of evidence from Mr. Suleh and from the Assistant Field Personnel Officer who was apparently approached by Mr. Suleh after the Applicant's termination, to enquire as to why his own post had not been abolished. There is also the letter dated 15 July 1991, from the Applicant to the Director of UNRWA Affairs, Syrian Arab Republic, in which he asks for enrolment in a two year training course if a decision were made to abolish his own post. XII. This request raises the question of how much faith the Applicant himself had in any agreement that he alleges was made. This and the absence of any evidence from Mr. Suleh or others, casts doubt on the existence of an agreement. Even if there had been such an agreement, it is difficult to see how it could have been binding on the Agency. XIII. Equally, it seems to the Tribunal that the Applicant has not compellingly shown that there was bias and prejudice against him on the part of the Principal. While it was the Principal who suggested abolition of the Applicant's post, there was no opposition to it from anybody in the Agency. The alleged statement of the Principal that he would pretend that he had not heard Mr. Suleh comes from an unnamed source. Despite the Principal's initial refusal to discuss the matter with the Applicant and to arrange an appointment for him with the Director General, UNRWA, Syrian Arab Republic, he eventually did both. XIV. The Hourani incident raises an unpleasant spectre, but the difficulty here, from the Applicant's point of view, is to tie it in conclusively with the decision to terminate his appointment. Indeed, his assertion that the second letter of criticism referred to in paragraph VII above

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was sent to him because of the Hourani episode, is weakened by his suggestion that the earlier letter was also unjustified. XV. On balance, the Tribunal is unable to find that the termination of the Applicant's services arose from bias and prejudice. In addition, the Tribunal holds that the Agency followed the correct procedures in abolishing the post. XVI. However, the matter does not end there. The question arises whether the Agency did all that it reasonably could to find an alternative post for the Applicant. The Agency was under an obligation to do so. Its initial suggestion that one of the three incumbents of the original posts be considered for the post of Housemaster cannot be taken seriously. Although the Applicant expressed interest in the post, he was not even interviewed. It is difficult to comprehend how the Applicant could be said to have been duly considered for this post. XVII. The recommendation of the. Joint Appeals Board is relevant because, as a result of that recommendation, the Administration offered the Applicant a new post, that of Clerk "B" grade 06. Subsequently, he was offered the post of Storekeeper A, grade 06. He was to be placed at grade 08, step 13, with protection. This was an area staff temporary indefinite appointment. The re-employment was to be by way of re-instatement, which required that he refund the Agency all the money he had received on termination, in the same currency. There was also to be a probationary period of one year. XVIII. The Applicant was offered the rather unappealing choice of either grade protection at grade 08, by way of reinstatement, with repayment of separation benefits or grade 06, by way of reappointment, with no grade protection but without the obligation to repay the benefits. Because he was not in a position to return the money, he accepted the post at grade 06. This was on condition that he could pursue his appeal and that he would also seek compensation. The Agency confirmed the grade 06 offer, subject to the same probationary period. XIX. While the Tribunal notes with satisfaction the re-appointment of the Applicant, it must also take into account several other factors. It was through no fault of his own that the Applicant became redundant. He would surely still be working in his original post if redundancy had not arisen. The Administration added to the worries and difficulties which must inevitably follow the loss of employment by not making adequate efforts to re-instate the Applicant in another post. He had been working for 11 years and had reached grade 10, step 8 when he was made redundant. He has had to face a probationary period in his new post and his choice at the end between the two available options was not really a free one. For all this, he deserves compensation.

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XX. The Tribunal wishes to make clear that the requests made by the Applicant in the incidental pleas are not essential in considering the case. XXI. The Applicant has requested compensation for the injuries sustained, including expenses and legal counsel's fees, estimated at US$ 19,000. He has also requested, in his additional pleas, payment of US$ 750 by way of costs and expenses. The Tribunal, in keeping with its jurisprudence (Judgement No. 237, Powell (1979), awards him the sum of US$ 500 only. XXII. For the foregoing reasons, the Tribunal orders the Respondent to: (a) Pay to the Applicant his net base salary, at the rate in effect on the date of his separation, from the date of his separation until his re-appointment; (b) Pay to the Applicant by way of further damages four months net base salary, at the rate in effect on the date of his separation; (c) Pay to the Applicant the sum of US$ 500, for legal expenses. (Signatures) Samar SEN President Francis SPAIN Member

Hubert THIERRY Member R. Maria VICIEN-MILBURN Executive Secretary

Geneva, 20 July 1994

Judgement No. 649 (Original: English) Case No. 700: Shehadeh

Against: The CommissionerGeneral of the United Nations Relief and Works Agency for Palestine Refugees in the Near East

Application of a former staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)for reinstatement and for compensation for humiliation and suffering sustained as a result of termination proceedings.

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The Joint Appeals Board recommended the reinstatement of the Applicant and consideration of the period between the cessation of service and reinstatement as special leave with pay.—Recommendation rejected. After a review of the Applicant's record of service the Tribunal finds that the Agency was entitled to terminate the Applicant's services as Guard as his work had not been fully satisfactory during his probationary period and there is nothing to suggest that there was any other reason for dismissing him.—The Tribunal also notes that the Agency took the initiative to offer the Applicant other posts and that it was not the Applicant's fault that the first two such posts did not work out.—The Agency thus did all it could reasonably have been expected to do.—With regard to the last post offered to the Applicant, the Tribunal does not accept the Applicant's contention that his health did not permit him to carry out the work and finds that his attitude in this post was unreasonable.—It holds that it would not be reasonable to expect the Agency to re-instate the Applicant's contention that his health did not permit him to carry out the work and finds that his attitude in this post was unreasonable.—It holds that it would not be reasonable to expect the Agency to re-instate the Applicant.—However, it considers that, before offering the Applicant the two posts which turned out not to be suitable, the Agency should have ensured that they would be suitable.—This situation caused upset, distress and disappointment for the Applicant for which he is entitled to a compensation. Award of compensation of six months of the Applicant's net base salary, at the rate in effect on the date of separation.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Hubert Thierry; Mr. Francis Spain; Whereas, on 30 April and 15 July 1992, Mohammad Husein Shehadeh, a former staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, hereinafter referred to as UNRWA, filed an application that did not fulfil all the formal requirements of article 7 of the Rules of the Tribunal; Whereas, on 15 October 1992, the Applicant, after making the necessary corrections, again filed an application requesting the Tribunal, inter alia, to order: 1. Reappointment to an equivalent post within the same qualifications and classification in the Jerusalem Field Office. 2. $30,000 compensation for the suffering, humiliation and pain sustained in the lengthy termination disagreement." Whereas the Respondent filed his answer on 29 March 1993; Whereas the Applicant filed written observations on 30 April 1993; Whereas the facts in the case are as follows: The Applicant, an area staff member, entered the service of UNRWA on 12 June 1989, as Guard "A" at the grade 2, step 1 level, at the West

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Bank Field Office. His appointment was subject to probationary service of one year. On 28 July 1990, the Director of UNRWA Operations, West Bank, wrote to the Applicant, stating that during his probationary period of service, his "work performance and official conduct were subject to many complaints" and as he had "failed to improve [his] work performance up to the required standard" his services with the Agency would be terminated with effect from 7 August 1990. On 3 August 1990, the Applicant requested the CommissionerGeneral to review the administrative decision to terminate his services. On 10 September 1990, he lodged an appeal with the Joint Appeals Board (JAB). After consultations between the Agency's Headquarters and the West Bank Field Office, on 3 December 1990, the Acting Director of UNRWA Operations, West Bank, informed the Applicant that the Administration had reconsidered his case and had decided to reinstate him with effect from 8 August 1990. The Field Administration also granted the Applicant special leave with full pay to cover the period between 8 August 1990 and the date of his return to duty. The probationary period was extended for six months from the date of reinstatement, and the Applicant was provisionally assigned to the post of Sanitation Foreman in the Shu'fat Camp, at his previous grade and salary, until a suitable post became available. The Applicant began to work as Sanitation Foreman in the Shu'fat Camp on 7 December 1990. In a letter dated 5 January 1991, the Applicant reported to the Field Director that on 12 December 1990, six masked men assaulted him in the Camp and prevented him from performing his work, and that masked men assaulted him a second time, on 2 January 1991. The Administration thereafter transferred the Applicant on 4 January 1991, to the post of Kitchen Worker, at the Kalandia Vocational Training Centre. In his letter, the Applicant claimed that he could not "carry out the duties of a Kitchen Worker" as he was too old for this type of work and requested a different assignment. In a reply dated 6 April 1991, the Officer-in-Charge of the Department of Administration at the West Bank Field Office informed the Applicant that he would be transferred to the post of Sanitation Labourer at the Kalandia Camp, with effect from 15 April 1991. The Applicant was given until 10 April 1991, to accept the post. On 22 April 1991, the Applicant requested a transfer back to the Field Office. He noted that he had made an effort to negotiate an alternative to the post of Sanitation Labourer which he considered to be an "affront" to him. He claimed he was too old to perform these tasks and could not bear the physical effects they had on him. He noted that he had previously requested to return to his former post as Guard at the Field Office, as he had understood that a post was available, but he had not been

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selected for the post. In a letter dated 29 April 1991, the Field Director, noting that the Applicant had been transferred to three posts, informed the Applicant that he would not change his assignment. He also noted that the Applicant had not communicated his acceptance of the post and advised him to make his intentions known or he would risk termination for abandonment of post. On 9 May 1991, the Applicant wrote to the Commissioner-General, rejecting the post of Sanitation Labourer, as it degraded his status among his family and the community. He asked that he be transferred back to his former post of Guard at the Field Office. On the same date, the Applicant wrote to the Secretary of the Joint Appeals Board (JAB) asking that his case "be looked into with equity and justice". On 24 May 1991, the Applicant responded to the Field Director's letter of 29 April 1991. After reviewing the difficulties that he had encountered in his three posts, he asked that he be returned to the Field Office in a post suited to his qualifications. According to the record, on 29 May 1991, the Field Administration Officer, the Field Personnel Officer and the Assistant Field Administration Officer met with the Applicant at the West Bank Field Office, to discuss his current situation. They explained to him that two alternatives to his present assignment had been considered, but proved impracticable because of threats that had been made to his life in connection with both appointments. The Field Administration Officer told the Applicant that his options were (a) to accept his appointment as Sanitation Labourer, (b) to resign, or (c) to be separated from service with the Agency. The Field Administration Officer also explained to the Applicant the consequences attached to each option. The Applicant reiterated on that occasion, that he would not accept the post of Sanitation Labourer in the Kalandia Camp, which he also confirmed in writing. On 29 May 1991, the Director of UNRWA Operations, West Bank, informed the Applicant that "with effect from 29 May 1991, [he was] terminated in the interests of the Agency, following [his] non acceptance of the post of Sanitation Labourer at Kalandia Camp." On 10 June 1991, the Applicant requested the Field Director to reconsider the decision to terminate his services and to re-employ him in certain posts which he claimed were vacant. In a reply dated 22 July 1991, the Field Director informed the Applicant that there was no suitable vacancy for him at the Field Office and that the termination of his services was caused by his refusal to accept the employment offered to him. In the meantime, on 1 July 1991, the Applicant lodged an appeal with the JAB. The JAB adopted its report on 4 February 1992. It recommended as follows:

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"(a) Reinstatement of the Appellant in any post in a vicinity that is far from circumstances that led to his termination and which is commensurate with his qualifications and age. (b) Considering the period between the time of termination and the effective date of reinstatement as special leave without pay. (c) Placing the Appellant under strict supervision during a further probationary period of six months." On 16 March 1992, the Commissioner-General transmitted to the Applicant a copy of the JAB report and informed him as follows: "A careful review of your history of employment with the Agency has convinced me that the Administration has made all reasonable efforts to keep you in service. I noted that after your reinstatement on 3 December 1990, the Administration accepted to transfer you several times, on account of difficulties that you experienced in each assignment. In view of the fact that you have refused appointment to the only available post, I can only confirm the decision to terminate your employment, which will therefore stand." On 15 October 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The decision to terminate the Applicant's employment was unfounded. He did not refuse appointment but was only stating a strong preference for another post if there was one available. 2. The Applicant had reasons to believe that there were other posts available, as he had been so informed by an UNRWA official. Whereas the Respondent's principal contentions are: 1. The purpose of probationary service is to allow the employer to ascertain whether or not the staff member is suitable for service. The Applicant, by his conduct, demonstrated that he should not be kept in service with UNRWA. 2. The Applicant refused the only post available for him, thereby demonstrating that he was not willing to cooperate with bonafide efforts of the Administration to find a solution. 3. The termination of the Applicant's services during probation was made in accordance with the Agency's Regulations and Rules and section 2 of the Applicant's letter of appointment. 4. The Applicant has failed to demonstrate that the impugned decision was based on inadequate or erroneous information or motivated by prejudice or some other extraneous factor. The Tribunal, having deliberated from 27 June to 20 July 1994, now pronounces the following judgement:

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I. To adjudicate on the question of the Applicant's separation from his post of Sanitation Labourer, with effect from 29 May 1991, the Tribunal must deal with the history that led to the Applicant's separation. II. The Applicant was initially separated from his post of Guard with effect from 7 August 1990. This termination, according to the Agency, was due to the Applicant's less than wholly satisfactory performance during his twelve-month probationary period. The Tribunal notes that following the Applicant's request that his case be referred to the Joint Appeals Board, he was offered re-instatement. He was, provisionally, appointed to the post of Sanitation Foreman, Shu'fat Camp, until a suitable post would become available. However, from this point forward, the Applicant's history is an unhappy one. He had scarcely taken up his work when six masked men assaulted him, and within less than a month, he was again assaulted. Because of these incidents, he was appointed a Kitchen Worker, but again, this proved an impossible task. By the Applicant's account, he could not carry out the work because of his age. As a result, the Applicant was appointed Sanitation Labourer at the Kalandia Camp, with effect from 15 April 1991. III. The saga did not end there. The Applicant considered the appointment an affront. He was not physically capable of doing the work and the work was degrading, demeaning and humiliating. He protested at being given this post. He wanted back his post as a Guard at the Field Office, as he felt that such a vacancy existed. The dispute continued between the parties and resulted in his appointment being terminated on 29 May 1991. IV. In his pleas, the Applicant seeks, in addition to compensation, appointment to an equivalent post with the same qualifications and classification in the West Bank Field Office. He appears to say, in his argument, that he did not refuse appointment to the sanitation post. His unhappiness was, in part, due to his perception that other posts were available. It is difficult to see how, in the main thrust of its actions, the Agency behaved unreasonably. It would appear that the Agency was entitled to terminate the Applicant's services as Guard. His work had not been fully satisfactory, and there is nothing to suggest that there was any other reason for dismissing him. V. Can the Agency's subsequent behaviour be said to have been unfair or wrong in any way? The assaults on the Applicant cannot be laid at the door of the Agency. Nor was the Agency remiss in relation to the problems that occurred during his work in the kitchen. The Agency finally sought to place the Applicant as Sanitation Labourer, and it was when this post did not work out that the end was finally

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reached. In the absence of any evidence, particularly medical evidence, the Tribunal is not inclined to accept the Applicant's contention that his health did not permit him to carry out the work. His own doctor appears to have prescribed no more than three days' rest. The Applicant's problems seem to have been due less to his health than to injured pride and hurt feelings. The Tribunal notes, however, that the Applicant had no control over the situation that obtained when he was Sanitation Foreman; he bears no responsibility for the assaults. In fact, he was a victim. It must also be borne in mind that, as he says he could not do the kitchen work, it seems the reality was that somebody of a younger age was, in fact, required for such work. Furthermore, if he had continued to work in the kitchen, it would have exposed to risk the students who were working with him, because of the threats to him. VI. In the Tribunal's view, the Agency was justified in dismissing the Applicant from his post of Guard. It then took the initiative of giving him other posts. It was not the Applicant's fault that the first two such posts did not work out. When the Applicant's appointment to the post of Sanitation Labourer, with grade protection, ended badly, it does seem to the Tribunal that the Agency had done all that it could reasonably have been expected to do. The Applicant was somewhat ambivalent in his attitude to this post. He says, at one stage, that though he did not agree with the procedures adopted, there was no outright rejection of the appointment, and he was ultimately dismissed. At first glance, the process of termination may seem to have happened rather quickly. However, the Tribunal is of the view that, because the appointment was actually made as far back as April 1991, the Applicant had ample time in which to consider his position and accept that the Agency was serious in its intent not to appoint him to any other post. Its decision seems to have been reasonable in the circumstances, there being no compelling evidence of the availability of any other suitable post. VII. While the Joint Appeals Board recommended that, with certain provisos, the Applicant should be re-instated, the Tribunal's view is that this would be unreasonable. The Agency has shown itself, at all stages, to be willing to place the Applicant in different posts and it could not reasonably be expected to have done more. The Applicant, in his attitude to the final post, was unreasonable in his reaction. However, the Agency appointed him to two posts which through no particular fault of the Applicant, turned out not to have been suitable. It is the Tribunal's view that, in taking it upon itself to appoint the Applicant to these posts, the Agency should have ensured, in so far as it could, that the posts would be suitable for the Applicant. In not doing so, and in so

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appointing the Applicant, the Agency caused him to believe, not just once but twice, that his employment problems were at an end. When this turned out not to be so, the inevitable result was acute upset, distress and disappointment for the Applicant. VIII. Having taken all the relevant factors into account the Tribunal orders the Respondent to pay to the Applicant six months of his net base salary at the rate in effect on the date of his separation. (Signatures) Samar SEN President Francis SPAIN Member

Hubert THIERRY Member R. Maria VlCIEN-MlLBURN Executive Secretary

Geneva, 20 July 1994

Judgement No. 650 (Original: English) Case No. 703: Bakr et al.

Against: The CommissionerGeneral of the United Nations Relief and Works Agency for Palestine Refugees in the Near East

Application of six former staff members of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)for reinstatement and for compensation for injury and loss sustained. The Joint Appeals Board found that the Applicants did not have the status of staff members at the time the events leading to the litigation occurred and therefore could not invoke thejurisdiction of the Board.—It considered accordingly that the appeal was not receivable. The Tribunal decides to join the claims which are related and have been submitted jointly and to deal with them in one judgement. Respondent's argument that, at the time when the Applicants resigned from service (between November 1986 and February 1987) and at the time when they applied for re-employment (between September 1988 and May 1989) the Area Staff Regulations and Rules governing their appointment did not assignjurisdiction to the Tribunal which was therefore without competence rationae materiae to entertain the application (the amendment to these Regulations conferring jurisdiction upon the Tribunal was adopted on 14 June 1991).—Consideration of the legal nature of UNRWA and reminder of the division of its

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staff into the international staff and the area staff, each with its own set of Regulations and Rules.—Respondent's contention that the Tribunal is also without competence rationae temporis as the cause of action arose before the amendments of 14 June 1991 which have a prospective effect.—The Tribunal, recalling its jurisprudence in Judgements No. 57 (Hilpern), No. 461 (Zafari) and No. 628 (Shkukani) and referring to the Advisory Opinion of the International Court of Justice of 15 July 1954, restates that it is competent to entertain cases, such as this one, where the primary concern is the absence of anyjudicial procedure for the settlement of disputes.—It rejects therefore the Respondent's argument that it is without competence. —It does not accept the Respondent's arguments based on policy and practical difficulties, as equity and justice cannot take second place to mere practicalities and administrative difficulties.—Respondent's arguments that the standing before the Tribunal depends on the non-observance of an employment contract in relation to a staff member.—The Tribunal holds that the Applicants are former staff members who allege non-observance of their contracts of employment.—The Applicants' claim on substance rests on a Personnel Directive of 1 July 1980 which provides that teachers who resigned from UNRWA to accept other teaching posts and who apply for re-employment by reinstatement within three years of resignation are given priority over other candidates similarly qualified, while the Respondent submits that the rules governing re-employment were changed in 1985.—The Tribunal finds that the Agency made no reasonable effort to inform its staff of thisfundamental change and holds that the Applicants are entitled to base their case on the 1980 Personnel Directive which it considers to be a term of their contract of employment.—The Tribunal rejects the Respondent's argument that the claims are time-barred, as this argument was not invoked before the Joint Appeals Board.—The Tribunal holds accordingly that the Applicants must be given priority in future allocation of posts. The Tribunal orders that the Applicants be accorded priority for posts for which they apply and are qualified.—Award of compensation of 12 months of net base salary at the time of resignation to any of the Applicants not so appointed within 9 months of the date of the judgement.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Hubert Thierry; Mr. Francis Spain; Whereas, on 17 June 1992, Daoud Nehar Bakr, Mohammad Nayef Abbas, Eilan Mahmoud Mi'ari, Khaled Ahmad Yasin, Hassan Abdulla Al Sha'bi and Mahmoud Mohammed Said Tamim, former staff members of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, hereinafter referred to as UNRWA, filed an application that did not fulfil all the formal requirements of article 7 of the Rules of the Tribunal; Whereas, on 10 October 1992, the Applicants, after making the necessary corrections, again filed an application requesting the Tribunal to order, inter alia: "(a) [The production of certain documents]. (b) Rescinding the Respondent's decisions not to reinstate Applicants, or to compensate them for their services (...).

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(c) Reinstating the Applicants to service, and considering them on special leave with pay since they applied for reinstatement i.e. 1.9.1988, and repayment of their Provident Fund benefits under the UN operational rate available at the time. (d) Compensating the Applicants for the injury, hardship, and loss sustained with the following: BAKR: US$ 55,000, ABBAS: US$ 45,000 MI'ARI: US$ 45,000, YASIN: US$ 50,000 SHA'BI: US$45,000, TAMIM: US$40,000" Whereas the Respondent filed his answer on 29 March 1993; Whereas the Applicants filed written observations on 25 April 1993; Whereas, on 9 March 1994, the President of the Tribunal requested the Respondent to produce an answer on the merits, which he did on 20 April 1994; Whereas, on 9 and 16 May 1994, the Applicants submitted additional statements; Whereas the facts in the case are as follows: The Applicant DaoudNehar Bakr entered the service of UNRWA on 9 February 1955, as a Primary School Teacher, at the Kastal Boys School, in Horns Town, Syrian Arab Republic, on a contract of "indefinite duration" as an area staff member. He served thereafter until 30 September 1986, when he resigned from the Agency with effect from 1 November 1986. The Applicant was then paid the termination benefits to which he was entitled, including his Provident Fund benefits. Mohammad Nayef Abbas entered the service of UNRWA on 1 April 1965, on a temporary indefinite appointment at the grade 6, step 1 level, as an area staff member, as an Elementary School Teacher at the Shajara School, North Area, Horns, Syrian Arab Republic. He served thereafter, always as a Teacher, until 7 February 1987, when he resigned from the Agency, having reached the position of Senior Teacher. The Applicant was then paid the separation benefits to which he was entitled, including his Provident Fund benefits. Eilan Mahmoud Mi'ari entered the service of UNRWA on 16 October 1963, on a temporary indefinite appointment at the grade 5, step 1 level, as an area staff member, as a Teacher at the Beisan School, Kama, North Area, Horns, Syrian Arab Republic. She served thereafter until 17 February 1987, when she resigned from the Agency, having reached the position of Teacher B. The Applicant was then paid the separation benefits to which she was entitled, including her Provident Fund benefits. Khalad Ahmad Yasin entered the service of UNRWA on 21 October 1959, on a temporary indefinite appointment, at the grade 5, step 1 level,

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as an area staff member, as a Teacher V at the Samkh Boys School, Hama, Syrian Arab Republic. He served thereafter until 15 February 1987, when he resigned from the Agency, with the functional title of Teacher C. The Applicant was then paid the separation benefits to which he was entitled, including his Provident Fund benefits. Hassan Abdulla Al Sha'bi entered the service of UNRWA on 3 October 1964, on a temporary indefinite appointment at the grade 6, step 1 level, as an area staff member, as a Teacher D at the Khariyeh School in Lattakia, North Area, Syrian Arab Republic. He served thereafter until 7 February 1987, when he resigned from the Agency, with the functional title of Teacher A. The Applicant was then paid the separation benefits to which he was entitled, including his Provident Fund benefits. Mahmoud Mohammed Said Tamim entered the service of UNRWA on 19 October 1966, on a temporary indefinite appointment at the grade 6, step 1 level, as an area staff member, as a Certified Preparatory Teacher at the Al Jora Boys School at Sanaber, South Area, Syrian Arab Republic. He served thereafter until 7 February 1987, when he resigned from the Agency, with the functional title of Senior Teacher. The Applicant was then paid the separation benefits to which he was entitled, including his Provident Fund benefits. On 19 September 1988, the Applicants Abbas, Yasin, Sha'bi and Tamim wrote to the Field Director in the Syrian Arab Republic, claiming the right to be re-employed as teachers with priority over other candidates. In a reply dated 11 October 1988, the Acting Field Administration Officer advised the Applicants that the Agency's rules governing re-employment had changed in 1985 and that the new Agency policy was to recruit the best qualified teachers. On 29 May 1989, the Applicant Mi'ari wrote to the Field Administration in the Syrian Arab Republic, enquiring about the possibilities of employment with the Agency. In a reply dated 1 June 1989, the Officer-in-Charge at the Syria Field Office informed the Applicant that her request for re-employment could not be entertained in light of rules relating to qualifications and age because she was more than 35 years old. In October 1989, the Applicants wrote to the Field Director in the Syrian Arab Republic, asserting their rights to be re-employed as teachers with priority over other candidates. In a reply dated 1 November 1989, the Field Office Director informed the Applicants as follows: "Judging by your above referenced letter, it is quite clear and unquestionable that you are well informed of the content of paragraph 3.6 of Personnel Directive A/4 part VI which you implicitly refer to in your letter and which was valid till October 1985, when it was cancelled.

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This prior knowledge of the provisions of the said Personnel Directive, together with the fact that rules and regulations in the Agency as in any other establishment or organization are in no way unamendable or not liable to change, which you must undoubtedly have realized through your long service with this Agency, should logically have urged you to raise an earnest question as to whether or not the said provision was still valid before you tendered your resignations; particularly so, because you had pinned your hopes for re-employment with the Agency on that provision." On 5 August 1991, the Applicants asked to be paid termination indemnities. The Administration rejected this request on 5 September 1991, on the ground that "the Agency Rules do not provide for payment of any Termination Indemnity to any staff member who resigns his job at his own will before reaching the age of early voluntary retirement." After a further exchange of correspondence between the respective Applicants and the Respondent, on 12 December 1991, the Applicants lodged an appeal with the Joint Appeals Board (JAB). The JAB adopted its reports, on 23 April 1992. Its findings and recommendation in cases Bakr, Abbas, Yasin, Sha'bi and Tamim read as follows: "11. Findings The Board examined the appeal, the Administration's reply and the Applicant[s]' observations on it. The Board focused on the content of paragraph 3.6 of Personnel Directive A/4/Rev.4/Amend.9 effective 1 July 1980, titled 'Reinstatement of Teachers' and [finds] that it does not invoke [a] contractual relation between the Agency and the Applicant in any sense. 12. The Board ... also [finds] that only 'a staff member' can file an appeal against a disciplinary measure or on anything that touches on the terms of his/her appointment. 13. In this context, the Board finds that the Applicant's case does not qualify to invoke the competence of the Board as the matter raised is outside its jurisdiction and at the material time, the Applicant did not have the status of a staff member of the Agency. Recommendation 14. In view of the foregoing, the Board submits that it lacks jurisdiction to entertain such an appeal and therefore, without prejudice to any other submission as may become necessary, makes its recommendation to declare this appeal case unreceivable." Its findings and recommendation in the Mi'ari case read as follows: "10. The Board examined the appeal, the Administration's reply and the Applicant's observations on it. The Board focused on the content of paragraph 3.6 of Personnel Directive A/4/Rev.4/Amend.9, effective

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1 July 1980, titled 'Reinstatement of Teachers' and [finds] that it does not invoke [a] contractual relation between the Agency and the Applicant in any sense; and on the provisions of Area Staff Rules 109.6 and 109.9 and [found] that the Applicant could not be indemnified for her services with the Agency. 11. The Board has also considered appeal procedures as stipulated in Staff Rule 111.3 which sets forth that only 'a staff member' can file an appeal against a disciplinary measure or on anything that touches on the terms of his/her appointment. 13 [sic]. In this context, the Board finds that the Applicant's case does not qualify to invoke the competence of the Board as the matter raised is outside its jurisdiction and at the material time, the Applicant did not have the status of a staff member of the Agency. Recommendation 14. In view of the foregoing, the Board submits that it lacks jurisdiction to entertain such an appeal and therefore without prejudice to any other submission as may become necessary, makes its recommendation to declare this appeal case unreceivable." On 13 May 1993, the Officer-in-Charge, Headquarters, UNRWA, transmitted to the Applicants copies of the JAB's reports and informed them as follows: "... the Board has concluded that it has no jurisdiction to consider your application, which was held to be not receivable. I accept this conclusion and your application therefore stands dismissed." On 10 October 1992, the Applicants filed with the Tribunal the application referred to earlier. Whereas the Applicants' principal contentions are: 1. The Area Staff Rules can only be amended without prejudice to the acquired rights of staff members. 2. Staff members, including the Applicants, were not properly notified of changes to the Personnel Directive A/5/77. Whereas the Respondent's principal contentions are: 1. The Area Staff Regulations and Rules governing the Applicants' appointment when they resigned from service and/or applied for re-employment did not assign jurisdiction to the United Nations Administrative Tribunal, which is therefore without competence ratione materiae to entertain the present application. 2. The United Nations Administrative Tribunal is without competence ratione temporis to hear applications from UNRWA Area staff members when the cause of action arose before 14 June 1991.

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3. The Applicants have no standing to bring their claim. 4. The Applicants' claims against the Respondent are time-barred. 5. There is no evidence that the Respondent's decision was in any way improper. The Tribunal, having deliberated from 27 June to 20 July 1994, now pronounces the following judgement: I. As all the Applicants' claims are related and have been submitted jointly, the Tribunal decides that they should be joined and dealt with in one judgement. II. The Respondent's first legal argument is that the Area Staff Regulations and Rules governing the Applicants' appointments when they resigned from service and/or applied for re-employment did not assign jurisdiction to the United Nations Administrative Tribunal which is, therefore, without competence ratione materiae to entertain the present application. This argument is based on the fact that the Applicants were area staff members and therefore subject to the Area Staff Regulations and Rules. These regulations and rules were amended on 14 June 1991, to give staff members a broader range of remedies in respect of administrative disciplinary decisions taken by the Agency. As the Applicants' resignations from the service and their subsequent applications for re-employment took place prior to 14 June 1991, they come under the scope of the rules and regulations that obtained prior to 14 June 1991. III. The Applicants each appealed to the Joint Appeals Board (JAB) which found the appeals to be unreceivable. The Commissioner-General accepted the Board's conclusions. In his legal argument, the Respondent describes UNRWA as a subsidiary organ of the General Assembly established under resolution 302(iv) of 8 December 1949, to deal with a specific emergency situation. The Agency is of a temporary nature and the General Assembly has, in recognition of this, granted the Director, now the Commissioner-General of UNRWA, broad powers to deal with all aspects of its work, including the recruitment and management of staff. Thus, under paragraph 9(b) of General Assembly resolution 302(iv), the Commissioner-General was authorized to select and appoint his staff in accordance with general arrangements made in agreement with the Secretary-General, and in accordance with the Staff Regulations and Rules of the United Nations as the Commissioner-General and the Secretary-General would agree should be applicable. IV. For operational and historical reasons, UNRWA's approximately 19,000 staff have been divided into two entirely separate categories, with separate conditions of service. A very limited number (about

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175) belong to the category of "international staff' and are governed by the set of staff regulations and rules known as the International Staff Regulations and Rules which are virtually identical to the 100 Series of the United Nations Staff Regulations and Rules. This category of staff has always had access to the Administrative Tribunal. The rest of the UNRWA staff, comprising the majority, are governed by the Area Staff Regulations and Rules which were amended on 14 June 1991. V. The main innovations brought about by these amendments were that area staff members could from then on (a) appeal against any administrative decision alleging non-observance of their terms of appointment and against any type of disciplinary action, and (b) appeal to the United Nations Administrative Tribunal. VI. The Respondent contends that the Applicants, as area staff members, were governed at the time they submitted their resignations and/or applied for re-employment, by the special set of Area Staff Regulations and Rules referred to in paragraphs III and IV above. These regulations and rules, which provided for recourse procedures against an administrative decision to terminate services or disciplinary action under Regulation 10.3, were the only ones that governed the Applicants' appointments, and they made no reference to the United Nations Administrative Tribunal. As recognized by the Tribunal in Judgement No. 70, Radicopoulos vs. UNRWA, the right to make applications to the Tribunal can be denied in certain cases. The Respondent's submission is that, therefore, the United Nations Administrative Tribunal has no competence ratione materiae to review the substance of the decisions taken before 14 June 1991, not to re-employ the Applicants. VII. The Respondent further contends that the United Nations Administrative Tribunal is without competence ratione temporis to hear applications from UNRWA staff members when the cause of action arose before 14 June 1991; that the amendments of 14 June 1991 should be construed as having a prospective effect; that the recourse procedures provided therein can only be invoked when the cause of action arose on or after that date; that the decisions not to re-employ cannot, therefore, be appealed to the Administrative Tribunal. The Respondent also refers to important policy reasons for ensuring that all administrative decisions taken by the Agency before 14 June 1991 should not automatically be open to review by the Administrative Tribunal. There would, he argues, be serious administrative consequences in allowing some 19,000 area staff members to question administrative decisions taken as far back as forty years. VIII. The Tribunal, in dealing with the Respondent's contention that it is without competence to entertain the applications, must take cognizance of its own previous approach in this area and, indeed, to the most

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recent case in which it dealt with this question, Judgement No. 628, Shkukani vs. UNRWA (1993). The Tribunal considers the Respondent's reference to Radicopoulos to be selective. In that case, while indicating that no mandatory provisions instituting another procedure had been laid down at the relevant time, the Tribunal considered itself competent to deal with the application on the basis of the agreement pursuant to General Assembly resolution 302(iv) referred to in paragraph III above. In the earlier 1955 case of Hilpern (Judgement No. 57), the Tribunal also rejected the Respondent's contention that "the Tribunal is competent to hear applications from staff members of the United Nations Secretariat only." The Tribunal refers to these early cases merely to indicate that it was of the view that it was not precluded from hearing cases involving staff members such as the Applicants, there being no other judicial forum for dealing with such cases. In the more recent case of Zafari (cf. Judgement No. 461 (1989)) the Tribunal made reference to the following advisory opinion of the International Court of Justice of 13 July 1954: "It would, in the opinion of the Court, hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals and with the constant preoccupation of the United Nations Organization to promote this aim that it should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them" (Effect of awards of compensation made by the U.N. Administrative Tribunal, Advisory Opinion of July 13th, 1954:I.C.J. Reports 1954, p. 57). IX. The Tribunal restated this view as recently as last year in the Shkukani case, that it is competent to entertain cases, such as this one, where the primary concern is the absence of any judicial procedure established by the Area Staff Regulations and Rules for the settlement of disputes submitted to the JAB. Indeed, the Tribunal is surprised, in view of the clear and unequivocal finding in the Shkukani case, that the Respondent seeks, yet again, to make this argument. X. Any body to which these Applicants had recourse under the Area Staff Regulations and Rules was an internal body. The Applicants should have had available to them, in fairness and equity, an external judicial body to which they could have appealed. The international staff members of UNRWA had such recourse but not the area staff members. There can be no justification for this. XI. The Tribunal, therefore, rejects the Respondent's argument that the Tribunal is without competence ratione materiae and ratione temporis to receive the application. XII. Nor can the Tribunal accept the Respondent's arguments which are based on reasons of policy and practical difficulties. To do so,

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would be to hold that equity and justice should take second place to mere practicalities and administrative difficulties. XIII. The Respondent also argues that the Applicants have no standing to bring their claim, as they have not alleged the non-observance of their employment contracts and as they were not staff members. The Respondent refers to the JAB's determination that it did not have competence to entertain the Applicants' appeal on the grounds that their claims "did not invoke a contractual relation between the Agency and the Applicants" and that they were not staff members as defined by the Staff Rules at the time the alleged claims arose. The Respondent cites article 2 of the Statute of the Tribunal, which he says, limits the Tribunal's competence to applications alleging non-observance of contracts of employment of staff members, including all pertinent regulations and rules in force at the time of the alleged non-observance. Therefore, according to the Respondent, standing to bring an application to the Tribunal depends on the non-observance of an employment contract by the Agency in relation to a staff member. In the absence of such a contract, and allegations of its non-observance, the Applicants have no standing to bring the action and the Tribunal is not competent to receive the application. The Respondent submits that the Applicants fail on both grounds. XIV. While it clearly is the case that the Applicants were not staff members following their resignation, can one say validly that this cuts them off from recourse to the appeal procedures? Does it mean that the Tribunal is not competent to hear their appeals? In the Tribunal's view, the fact that the Applicants were not staff members does not necessarily deprive them of recourse. These, of course, are former staff members who filed appeals relating to alleged non-observance of the terms of their contracts of employment. XV. This brings the Tribunal to a consideration of the status of staff circular A/5/77 of 29 June 1977. Paragraph 10(c) states: "The Agency has agreed to amend the relevant Personnel Directive to provide that if a teacher resigns from the Agency to accept another teaching post within the Middle East and he subsequently applies for re-employment by re-instatement within two years from [the] date of resignation, the Agency will give him priority over new candidates who are equally qualified." On 1 July 1980, the Administration issued Personnel Directive A/4 Rev.4/Amend.9. Paragraph 3.6 of this Directive states: "Re-employment of Teachers

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Teachers who have resigned from the Agency's service to accept other teaching posts within the Middle East, and who apply for re-employment by reinstatement within three years from the date of their resignation, will be given priority over new candidates who are equally qualified." The Applicants resigned and subsequently applied for re-employment within the newly designated period of three years. They were not given priority on the grounds that the rules governing re-employment changed in 1985. The Applicants knew nothing of this change, but the Agency's attitude was that such ignorance can only be considered to have been culpable. The Agency's position was that their applications for employment would be considered on their merits with those of the other candidates. In a letter dated 15 January 1989, the Deputy Director UNRWA Affairs, Syrian Arab Republic, noted that the Personnel Directive still contained the reference to "priority". However, he said that "that reference was cancelled in June 1983, at a Cabinet Meeting although the change may not have been made clear to all those who are now concerned with such problems". He also said that the existing position was that the appointment of staff should be strictly on the basis of merit and that the Personnel Directive was being revised. XVI. It is clear that no reasonable effort was made by the Agency to inform its staff of this fundamental change. The Applicants resigned while under a misapprehension concerning the true position regarding priority in re-employment and this, through no fault of their own. It is the Tribunal's view, therefore, that this matter must be approached on the basis that the Personnel Directive, as amended in 1980, was still in force at the time of the resignations and subsequent applications for re-employment. XVII. But what is the effect of the Personnel Directive? If one were to accept the Respondent's argument that the Directive was not a term of the Applicant's contract of employment, the Directive has no effect. Is it rational to seek to look upon this provision as being without enforceability and without purpose, simply because it was not written into the Applicant's contract? Surely not. Does it not seem illogical that the Applicants should have no right of redress if the Agency seeks to ignore this particular provision of the Personnel Directive? What is the purpose in having such a Directive at all if this were to be the case? It appears to the Tribunal to be only fair and just that the Personnel Directive carries within it the inference that if it were to be ignored, the Applicants would have a right of redress. On that basis, the Tribunal does not consider it an exaggeration to say that it is akin to being a term of the contract of employment and that it should be inferred to be a term of the contract of employment. The Tribunal therefore rejects this argument.

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XVIII. The Respondent then argues that the Area Staff Regulations, at the time of the impugned decisions, did not provide for appeal other than against the termination of services. The Respondent chooses to bolster his argument by reference to the Shkukani case, but he tends to be selective in his view of it. While he quotes the Tribunal's finding in that case, that it had to be considered in the light of the rules as they were prior to the date of the amendment, he ignores the thrust of the case to the effect that if such rules were discriminatory, they could not be relied on. Why should the Applicants be in a disadvantaged position now, when compared with others who can rely on a broader range of appeals against administrative decisions, including applications from staff members alleging non-observance of their terms of appointment? It offends equity and justice that this should be so. If it had been the intention to perpetuate that position, the provisions extending the jurisdiction of the Tribunal should have provided expressly for this result. XIX. Finally, the Respondent argues that the claims are barred by lapse of time. This argument is based on the proposition that the JAB did not exercise its discretion to waive the time limits and properly held the Applicants' appeal not receivable. This statement does not represent the true situation. The JAB found the case not to be receivable on other grounds and the Respondent did not make the case to the JAB that the appeal was time-barred. Having failed to do so before the JAB, the Respondent cannot do so now and cannot seek to rely on a finding that was not made on that basis. This argument is rejected. XX. The Respondent says that the Applicants have impugned the Respondent's discretionary administrative decision not to re-employ them as teachers, that their only allegation is that they were not accorded a right to re-employment, rather than that there was error in the Respondent's actions. This is not the Applicants' case. Their claim is that they were not given priority. XXI. In view of its findings on the various matters raised by both parties, the Tribunal is of the view that it would be unjust and inequitable if the Applicants were not to be given priority in future allocation of posts. It must be remembered, however, that even with such priority, they, or at least some of them, might not necessarily be re-appointed in the immediate future. Therefore, the Tribunal orders: (i) That the Applicants be accorded priority for the posts for which they apply and for which they are qualified; and (ii) If any of the Applicants is not appointed within 9 months from the date of this judgement, the Respondent pay to such Applicant compensation equivalent to 12 months of his or her net base salary at the rate in effect at the time of such Applicant's resignation.

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(Signatures) Samar SEN President Francis SPAIN Member

Hubert THIERRY Member R. Maria VICIEN-MILBURN Executive Secretary

Geneva, 20 July 1994

Judgement No. 651 (Original: English) Case No. 707: El-Said

Against: The CommissionerGeneral of the United Nations Relief and Works Agency for Palestine Refugees in the Near East

Application of a former staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) for compensation for the time elapsed since termination and for reinstatement or financial settlement. The appeal was not considered by the Joint Appeals Board: the Secretary of the Board informed the Applicant that, after a preliminary consideration, the members of the Board found that the Applicant had not observed the prescribed time-limits. The Tribunal decides that the question to be decided is whether the case was considered by a properly established and convened joint appeals body.—It notes that the issue of receivability was dealt with by the Secretary of the Board by correspondence with the members, the majority of whom were of the opinion that the appeal was not receivable, while one member was of the opinion that the Board should convene.—The Tribunal finds that the procedure was flawed because the Board never convened.—The Applicant is entitled to have his appeal heard by a properly convened Board. The Tribunal remands the case to the Respondent for proper consideration by the Joint Appeals Board.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Hubert Thierry; Mr. Francis Spain; Whereas, on 2 May, 26 June and 24 July 1992, AH El-Said, a former staff member of the United Nations Relief and Works Agency for Pales-

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tine Refugees in the Near East, hereinafter referred to as UNRWA, filed an application that did not fulfil all the formal requirements of article 7 of the Rules of the Tribunal; Whereas, on 3 August 1992, the Applicant, after making the necessary corrections, again filed an application requesting, inter alia: " ... net salary for the period between the date of separation (15/02/1991) and the date of the Tribunal's decision." Whereas the Respondent filed his answer on 3 June 1993; Whereas the Applicant filed written observations on 6 December 1993; Whereas, on 26 May 1994, the Applicant clarified that what he sought from the Tribunal was: "1. Compensation for the elapsed time since termination according to UNAT Statute and Rules. 2. Same or similar post or financial settlement. 3. ... In-service training ..." Whereas, on 27 June 1994, the Tribunal put questions to the Respondent to which he provided answers on 28 June 1994; Whereas the facts in the case are as follows: The Applicant entered the service of UNRWA on 18 January 1990, as a Senior Vocational Training Instructor (Mechanic), grade 10, step 1 level, at the Siblin Training Centre in Lebanon. Under section 2 of the letter of appointment, his appointment was subject to probationary service of one year. On 7 April 1990, the Deputy Principal and Chief Instructor, who was the Applicant's immediate supervisor, wrote to the Principal of the Siblin Training Centre to report on the Applicant's unsatisfactory performance. He stated that the Applicant had no control over his classes "due to his weak personality and due to [the] lack of knowledge of the material he is supposed to teach. Besides, he lacks reasonable judgement for solving problems or making decisions." On 24 April 1990, the Principal of the Siblin Training Centre, through the Field Education Officer, recommended to the Field Personnel Officer that the Applicant's services with the Agency be terminated because of his inefficiency. The Field Education Officer, however, recommended that the Applicant be given more time to improve his work performance. In a letter dated 27 April 1990, the Principal warned the Applicant that as the quality of his work, both professionally and administratively, had been unsatisfactory, he should improve his performance. He added that: "Should no improvement show itself in your performance, appropriate action will be taken."

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In a memorandum dated 9 January 1991, to the Field Education Officer, the Principal of the Siblin Training Centre evaluated the Applicant's performance. He noted that the Applicant had shown no improvement in his ability to control classes, nor in his professional or administrative skills. He recommended that the Applicant be separated from the Agency "on the grounds of his inefficiency." Also, in the Applicant's performance evaluation report, his principal supervisor, the Field Education Officer, stated on 6 February 1991: "Separation from service strongly recommended." After an exchange of correspondence between the authorities at the Centre and the Headquarters Branch in Amman, and with the concurrence of the Director of UNRWA Affairs in Lebanon, on 13 February 1991, the Field Administration Officer informed the Applicant as follows: "I regret to advise you that your confirmation in the post of Senior Vocational Training Instructor (Mechanic) at Siblin Training Centre, was not recommended due to your unsatisfactory work performance. As per instructions in force, there is no other alternative but to terminate your services effective from the close of business on 15 February 1991, as per para. 7 of your Letter of Appointment dated 24 January 1990 ..." On 21 February 1991, the Applicant requested the Field Administration Officer to review the decision to terminate his services. In a reply dated 1 March 1991, the Field Administration Officer informed the Applicant that the decision would be maintained "in view of the clear reasons which made it unavoidable." On 15 July 1991, the Applicant lodged an appeal with the Joint Appeals Board (JAB), through a communication to the Director of Personnel at UNRWA Headquarters. On 28 October 1991, the Secretary of the JAB informed the Applicant as follows: "Further to my letter of 12 September 1991, I hereby inform you that the preliminary consideration of your appeal case by the members of the Joint Appeals Board comprised of..., has not eventuated the entertainment of your appeal case since you have failed to observe the time limits governing appeal procedures... as in accordance with paragraph 3(B) of staff rule 111.3. Attached please find a summary of the chronological sequence of events that have led to the aforementioned decision of the Joint Appeals Board, together with the relevant comments. Event Date Comments

Judgement No. 651 1. Decision to terminate your services with the Agency 2. Your request to Administration to review its decision in your respect 3. Administration's reply to your request 4. Your appeal to Secretary, Joint Appeals Board

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13.02.91 21.02.91

Consistent with para. 2 of staff rule 111.3.

01.03.91

Consistent with para. 3 (B) of staff rule 111.3. Not consistent with para. 3 (B) of staff rule 111.3, as the ultimate date for appealing would have been 22 March 1991."

15.07.91

However, on 15 November 1991, one of the members of the Joint Appeals Board wrote to the Secretary of the Board, as follows: "1. First, I would like to refer you to the content of my letter dated 8 October 1991 and addressed to Chairman JAB (a copy to you) where I assured the need of holding the Board as the case is considered justified. 2. I don't agree to the decision taken by Chairman JAB and I assure that I don't share ... the same view. 3. Regarding staff rule 3(B) III.3 [the Applicant] who is newly appointed, is not well aware of this rule. 4. Para. 4 of staff rule III.3 says that the Board may waive time limits in exceptional circumstances is applicable to this case, as Lebanon in a whole is living the most exceptional circumstances. 5. So, and in light of the above-mentioned, I still request to consider the case and to hold the Board." In a reply dated 21 November 1991, the Secretary, JAB, wrote to the members of the Board, as follows: "With reference to your letter dated 15 November 1991, in respect of [the Applicant's] appeal case, please be informed that I have pursued the case further with the other Board members who constitute a majority on the Board and they confirmed their previous opinion of not entertaining the appeal case in question. Therefore my letter . . . dated 28 October 1991, addressed to [the Applicant] and copied to you stands as it is." On 3 August 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are:

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1. The decision to terminate his employment with UNRWA, allegedly due to unsatisfactory work performance, was inappropriate and the assessment on which it was based was biased as a result of interpersonal conflict. 2. The UNRWA Joint Appeals Board did not consider his case. Whereas the Respondent's principal contentions are: 1. The application is time-barred. 2. The Applicant's services were terminated upon completion of his probation, without prejudice, improper motivation or misuse of authority. 3. The Applicant's performance during probation demonstrated that he was not suited for permanent appointment with UNRWA. 4. The non-granting of a Teaching diploma from the UNRWA Institute of Education at Amman was not tainted by prejudice, improper motivation or misuse of authority. The Tribunal, having deliberated from 27 June to 20 July 1994, now pronounces the following judgement: I. The question to be decided by the Tribunal is whether the Applicant's case was considered by a properly established and convened joint appeals body. II. The answers to the questions posed by the Tribunal to the Respondent, concerning the constitution and procedures followed by the Joint Appeals Board (JAB) in this case, disclose that two of the JAB members were stationed in Vienna and one in Lebanon. The issue of receivability of the Applicant's appeal was dealt with by the Secretary of the JAB, circulating a memorandum identifying the issue and requesting that the members communicate amongst themselves and notify him of their views. The members of the JAB subsequently informed the Secretary of their views—the majority view being that the Applicant's case was not receivable. This so-called finding was transmitted to the Applicant. But, even after that, one of the members of the JAB was still seeking consideration of the case and the convening of a Board meeting. III. The Applicant sought the convening of the JAB. His request was not granted and the JAB did not convene. One of the members of the JAB has expressed his dissatisfaction with the procedures adopted. IV. The Tribunal holds that the procedures followed by the JAB in this case were flawed because the JAB never convened. The Applicant is therefore entitled to have his appeal heard by a properly convened JAB. Accordingly, in accordance with its jurisprudence in Judgements No. 511,

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Parker (1991) and No. 598, Nicolas (1993), the Tribunal remands this case to the Respondent for proper consideration by the JAB. (Signatures)

Samar SEN

Hubert THIERRY

President Francis SPAIN Member

Member R. Maria VICIEN-MILBURN Executive Secretary

Geneva, 20 July 1994

Judgement No. 652 (Original: English) Case No. 689: Su'oud

Against: The CommissionerGeneral of the United Nations Relief and Works Agency for Palestine Refugees in the Near East

Application of a staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)for rescission of decision ordering his transfer on demotion, for compensation for injury and humiliation andfor costs.—Request for production of documents and for oral proceedings. The Joint Appeals Board considered that the report of the Board of Enquiry was fully credible and recommended to uphold the decision. The Tribunal considers that the Respondent was applying Area Staff Rules in deciding who could represent the Applicant before the Joint Appeals Board. The Tribunal noted that this case was closely related to the case dealt with in Judgement No. 654 of the same day (Hourani): while Mr. Hourani, whose services were terminated, was responsible for organizing and directing thefts from UNRWA stores, the Applicant was his accomplice and was demoted and transferred as disciplinary measure.—Consideration of the circumstances of the case and of the various documents, in particular the report of the Board of Enquiry, which led to the conclusion that the Applicant was an accomplice of the principal culprit.—The Tribunal considers that the procedure followed did not adversely affect the Applicant's rights.—With regard to the Applicant's assertion that other staff members -were involved, the Tribunal considers that the Applicant cannot escape his own responsibility by pointing an accusing finger at others.—In accordance with the Tribunal's jurisprudence, the Respondent has broad discretion in disciplinary matters, provided there is no proof of bias, prejudice or other similar extraneous factors.—The Tribunal concludes that the disciplinary measure taken was within the Respondent's discre-

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tion and that the Applicant has not produced evidence of bias, prejudice or other similar factors. Application and request for costs rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Hubert Thierry; Mr. Francis Spain; Whereas, on 10 July 1992, Sa'id Khaled Su'oud, a staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, hereinafter referred to as UNRWA, filed an application requesting the Tribunal to order, inter alia: (b) Rescinding the decisions of the Respondent..., ordering the Applicant's transfer on demotion, and addressing him with a final warning ... (c) Payment of compensation for the injury, humiliation and discrimination suffered by the Applicant..., and the expenses sustained estimated at US$ 15,000; (d) Declaring the proceedings . . . being vitiated by abuse of procedure 'detournement de procedure' by not accepting my legal counsel, the retired area staff member, as my representative ...; (e) Ordering the Respondent's payment of the fees of my legal counsel." Whereas the Respondent filed his answer on 22 January 1993; Whereas the Applicant filed written observations on 15 April 1993; Whereas, on 16 April 1993, the Applicant submitted additional pleas requesting the Tribunal "to hold oral hearings and to order the production of certain documents and files,... [as well as] costs sustained which include mail fees, telexes to COMGEN [Commissioner General] [which are] estimated at US$ 800... Whereas, on 27 June 1994, the President of the Tribunal ruled that no oral proceedings would be held in the case; Whereas the facts in the case are as follows: The Applicant entered the service of UNRWA on 28 December 1981, on a temporary assistance basis, as an area staff member, as a Cleaner in the Damascus Vocational Training Centre (DVTC). On 8 February 1982, his appointment was converted to a temporary indefinite appointment at the G-l, step 1 level. On 15 September 1982, the Applicant was transferred to the post of Guard "A", also at the DVTC. After com-

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pletion of his probationary service of one year, the Applicant was promoted to G-2, step 1 level. On 13 April 1991, the Principal of the DVTC informed the Acting Field Administration Officer in the Syrian Arab Republic of the theft of tools and consumable items at the DVTC, on 4 April 1991. According to the Principal, the Applicant did not pass on all the information he had regarding the theft. The Principal, accordingly, recommended that the Applicant be downgraded from grade 02 to grade 01 and transferred "to a post of Labourer or similar post grade 01 when a vacant post is available in the Centre." On 20 April 1991, the Director of UNRWA Affairs in the Syrian Arab Republic appointed a Board of Enquiry to investigate the matter. On 21 May 1991, the Board submitted to the Field Director its report, which concluded that the Applicant had been involved in the misappropriation of tools and consumable items from the Centre and had "acted as an accomplice to Mr. Ibrahim Hourani and assisted him in taking training supplies out from the Damascus Training Centre." In a memorandum dated 13 June 1991, the Acting Field Administration Officer informed the Applicant that in the light of those conclusions: "... It has, therefore, been decided to demote you to grade 01 and to transfer you to a post of Sanitation Labourer grade 01 at Sbeineh Camp, Damascus Area, with effect from 15 June 1991. In view of the foregoing, this letter is a final warning. If your work performance should again be the subject of complaints, or any future misconduct, the Agency will be obliged to take appropriate action. Such action may include your immediate dismissal from the Agency's service." On 14 July 1991, the Applicant lodged an appeal with the Joint Appeals Board (JAB). On 6 October 1991, the Applicant requested the Field Director to review the administrative decision of 13 June 1991. In a reply dated 9 October 1991, the Officer-in-Charge at the Field Office informed the Applicant that the decision would be maintained. The JAB adopted its report on 4 February 1992. Its evaluations and recommendations read, in part, as follows: "IV. Evaluations 1. The report of the Board of Enquiry which propelled findings made upon investigations, queries and hearing testimonies of witnesses does not lack any credibility, as is alleged by the Appellant, for the following reasons:

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The Board believes that the Administration's decision of transferring the Appellant on demotion effective 15 June 1991, has also given him a real chance to remain in the Agency's service, thus enabling him to cater to his needs, with a view to improved performance and devotion while conforming to Agency Rules and Regulations. V. Recommendations In view of the foregoing, the Board unanimously makes its recommendations that 1. The Administration's decision of 13 June 1991 in respect of the Appellant be upheld, and 2. That the case be dismissed." On 18 June 1992, the Commissioner-General transmitted to the Applicant a copy of the JAB's report and informed him as follows: "I have examined the report of the Joint Appeals Board and accept the conclusions arrived at by the Board. I must, therefore, inform you that the Administration's decision to transfer you on demotion will stand." On 10 July 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Respondent failed to produce documents or witnesses to support his views. 2. The Applicant's alleged accomplice provided the Respondent with material evidence to show that the incident of 4 April 1991 occurred on written instructions from the Principal. 3. The Respondent's decision constitutes a detoumement de pouvoir. 4. The Applicant was entitled to be represented before the JAB by outside counsel. Whereas the Respondent's principal contentions are: 1. It is within the discretionary authority of the Commissioner-General to allow representation by serving staff members only to make the JAB procedure more efficient. 2. In view of the exceptional circumstances of his case, involving the security of witnesses, the Applicant should not be given access, as he requested, to the identity of trainees and staffmembers and of witnesses whose names have been deleted from the first report of the Board of Enquiry. 3. The decision to demote the Applicant was based essentially on the report of the Board of Enquiry. 4. The Applicant's conduct could have justified a more severe disciplinary measure than transfer on demotion.

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The Tribunal, having deliberated from 27 June to 20 July 1994, now pronounces the following judgement: I. This case is closely related to the case dealt with by the Tribunal in its Judgement No. 654, Hourani, rendered today. II. The Tribunal notes that the Respondent was strictly applying the Area Staff Rules in deciding who could represent the Applicant before the JAB. III. The Respondent demoted and transferred the Applicant to the post of Sanitation Labourer, with effect from 15 June 1991. He also took disciplinary action against Mr. Ibrahim Hourani, another area staff member, by terminating his services. The basis of the Respondent's action seems to be that both of them were involved in the theft of considerable stores from the DVTC. While Mr. Hourani was mainly responsible for organizing and directing these thefts, spread over a long period of time, the Applicant was merely his accomplice, carrying out his wishes and instructions. IV. The thefts of equipment from the DVTC had been continuing for quite a while, but because of poor administration, combined with little or no supervision and control, nothing came to the notice of the Agency until 4 April 1991, when the Principal, DVTC, was informed that "a substantial theft of tools and consumable items had taken place". The Principal made a preliminary investigation and eventually a Board of Enquiry was established. On 21 May 1991, the Board submitted its report, entitled "Misappropriation of Tools and Consumable items as well as other irregularities in the Damascus Training Centre". It concluded with a scathing criticism of Mr. Hourani and identified the Applicant as one of his accomplices. It stated inter alia that had the Board had time to investigate more in this direction, "there existed a realistic chance to detect another accomplice of Mr. Hourani". This Board of Enquiry was followed by an "Operational Audit Report on Vocational Training Centre in Damascus" which establishes, with proof and conviction, that much was remiss in the administration of the Centre. The Respondent now asserts that most of the audit report's recommendations have been properly implemented. V. Be that as it may, the Tribunal considers that these investigations and reports, as well as the report of the JAB, show conclusively that there were many opportunities in the DVTC for corruption and other wrong-doings and that apart from the Applicant, there were many others who might have been guilty of misdemeanours of some kind. However, such a conclusion has no relevance to deciding if the Applicant was properly found to be responsible for thefts which undoubtedly occurred. The Tribunal considers that the Applicant cannot escape his own responsibility by simply pointing an accusing finger at others.

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VI. Before determining the main issue—whether the culpability of the Applicant has been properly established and the consequent punishment correctly imposed—the Tribunal will deal with some peripheral issues raised by the Applicant. The Applicant asks for various documents and testimony on which, he asserts, the Respondent based his opinion adverse to the Applicant. These have been denied to him. He adds that he was deprived of the opportunity to cross-examine witnesses. The Respondent argues that, in the circumstances of the case, making available some of the evidence and/or identifying several of the witnesses would expose them to physical violence and other threats. The Tribunal holds that the procedure followed by the Respondent in the particular circumstances of this case, did not adversely affect the rights of the Applicant, and consequently, did not lead to a miscarriage of justice. This conclusion is strengthened by the painstaking way in which the Board of Enquiry set about its task to determine the course of events, particularly those of 4 April 1991, when the loss of much material, through theft, was suffered by the Agency. Furthermore, the Tribunal considers that the evidence available to it is adequate for deciding whether the Applicant has been fairly treated or not. VII. The Tribunal has considered, with special attention, four important documents: The Report dated 13 April 1991 of the Principal (who died early in 1992); the Report of the Board of Enquiry of 21 May 1991; the Audit Report of the DVTC of 15 November 1991, covering all the activities of the Centre, and the JAB report of 12 May 1992. Leaving aside the Audit Report, whose criticism the Respondent accepts and which lends some strength to the Applicant's contention that many others in the DVTC could have been involved in wrong-doings, the Tribunal finds that, despite minor shortcomings and deficiencies, both of reference and language (often translation from Arabic), all the reports have made serious and conscientious efforts to establish the truth about the widespread theft of the Agency stores at the DVTC and to assess the Applicant's responsibility in some of them. They are unanimous in concluding that the Applicant was involved, as an accomplice of Mr. Hourani, the principal culprit. The Tribunal finds no reason to disagree. All the criticisms, objections and innuendos which the Applicant has levelled not only against the reports, but also against the witnesses and the evidence on which the Respondent relied, do not, in the view of the Tribunal, contradict the broad conclusions reached by the Board of Enquiry, and later upheld by the Joint Appeals Board. VIII. The disciplinary measure taken by the Respondent—demotion with transfer—is entirely within the discretion of the Respondent. The Applicant has not produced any convincing evidence of bias, preju-

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dice or other extraneous factors which might vitiate the exercise of such discretion. In a place where people work in close proximity to each other, the Principal's views on the Applicant's involvement might be widely known in advance. Even if the Applicant's statement of 22 September 1991 (four months after the Board of Enquiry Report) suggesting that the punishment of the Applicant had been decided in advance were true, it would make no material difference to the conclusion reached by the JAB. IX. In the circumstances of the case and consistent with its jurisprudence that in disciplinary matters the Respondent has broad discretion, provided there is no proof of bias, prejudice or other similar extraneous factors, the Tribunal holds that the Respondent exercised his discretion properly, taking into account the Applicant's secondary role in the activities of Mr. Hourani. X. In view of the foregoing, the Tribunal rejects the application as well as the Applicant's request for costs. (Signatures) Samar SEN

Hubert THIERRY

President Francis SPAIN

Member R. Maria VICIEN-MILBURN

Member

Executive Secretary

Geneva, 20 July 1994

Judgement No. 653 (Original: English) Case No. 691: Hayek

Against: The CommissionerGeneral of the United Nations Relief and Works Agency for Palestine Refugees in the Near East

Application of a staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)for rescission of decision ordering his transfer on demotion, for reinstatement, for compensation for loss and injury and for costs. The Joint Appeals Board recommended to uphold the decision.—It recommended also that the Applicant be transferred as soon as possible to his former duty station.

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Consideration of the circumstances of the case.—The Tribunal notes that as a result of his transfer on demotion the Applicant was assigned to a duty station some 250 kilometers from his home area, which led to serious difficulties in his family life.—It notes further that it took the Respondent nearly two years to transfer the Applicant back to hisformer duty station.—While it is unable tojudge whether this relief could have been granted earlier, in view of the circumstances—some of them extenuating—in which the appellant committed the serious errorfor which he was punished, the Tribunal considers that some compensation is due for the delay in moving the Applicant back to his home area. Award of compensation of US$ 1,000.—Award of US$ 250 for legal costs.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Hubert Thierry; Mr. Francis Spain; Whereas, on 30 July 1992, Mohammed Saleh Hayek, a staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, hereinafter referred to as UNRWA, filed an application requesting the Tribunal to order, inter alia: "

(b) Rescission of the Respondent's decision to transfer the Applicant on demotion (...). (c) Reinstate[ment of] the Applicant in his previous post as Social Case Worker in Homs, Central Area. (d) Compensati[on of] the Applicant for the loss and injury he sustained... (e) Payment of fees and expenses including the legal counsel's fees." Whereas the Respondent filed his answer on 29 January 1993; Whereas, on 6 April 1992, the Applicant submitted "incidental pleas" in which read he further requested: "3. Costs sustained represent[ing] secretarial work, including translation of letters and documents at the different stages ... mail fees, telexes to Respondent... estimated roughly at US$ 450—" and "... an average extra expense of US$ 250 a month over the moral and physical injury done to him... as... [on account of the contested decision] the Applicant is compelled to live far from his family in Damascus." Whereas the Applicant filed written observations on 22 April 1993; Whereas, on 27 June 1994, the President of the Tribunal ruled that no oral proceedings would be held in the case;

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Whereas, on 28 June 1994, the Tribunal put a question to the Respondent to which he provided an answer on 30 June 1994; Whereas, on 5 July 1994, the Applicant submitted additional statements and on 8 July 1994, the Respondent provided his comments thereon; Whereas, on 13 July 1994, the Applicant submitted a further statement; Whereas the facts in the case are as follows: The Applicant entered the service of UNRWA, on 4 August 1981, as an Administrative Clerk, on a temporary basis, at the Homs/Hama Area Office in the Syrian Arab Republic. He was later given a temporary indefinite appointment as a Welfare Worker at the grade 7, step 1 level, with effect from 1 April 1984. On 20 June 1991, the Field Relief and Social Services Officer in the Syrian Arab Republic reported that the Applicant had allegedly falsified a prison certificate, in order to entitle a family of a refugee to food rations normally reserved for "special hardship cases". The Applicant initially denied any involvement, but finally admitted that he had falsified the document, claiming to have done so under threat to his life. The Field Relief and Social Services Officer recommended in his report that the Applicant be demoted to a lower post, as a disciplinary measure. On 25 June 1991, the Acting Director of UNRWA Affairs in the Syrian Arab Republic asked the Field Administration Officer to convene and chair an ad hoc Board of Enquiry to investigate the circumstances of the falsification of documents. He also instructed the Field Administration Officer to suspend the Applicant without pay until further notice. On the same day, the Field Administration Officer informed the Applicant of the suspension. In its report dated 29 July 1991, the Board of Enquiry recommended, in part, as follows: " 8. To prevent a dangerous precedent by allowing refugees to succeed in gaining rations by threat, and to make it clear to all social workers that falsification of documents is not tolerated, severe disciplinary action is recommended. On the other hand, it should be taken into account that [the Applicant] is a timid, fearful man and committed his act under pressure. Whether he is fit to continue as a social worker or [in] another capacity, would have to be determined by his supervisors. »» On 15 August 1991, the Field Administration Officer wrote to the Applicant, advising him that in the light of the findings of the Board of

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Enquiry "it had been decided to transfer [him] with demotion" from his present post to the post of Clerk "D" at the Area Registration Office in Damascus, or Clerk "C" at the Field Supply and Transport Department, also in Damascus, both posts being at grade 5. The Applicant was asked to advise whether or not he accepted his transfer to one of these posts. The Field Administration Officer added: "I have to advise you further that if you should not accept the above transfer, your services shall then be terminated in the interest of the Agency under the provisions of area staff regulation 9.1 and area staff rules 109.1 and 109.9." On 25 August 1991, the Applicant accepted the transfer to the post of Clerk "C" at the Field Supply and Transport Department. On the same date, the Field Personnel Officer advised the Applicant that the transfer would take effect on 3 September 1991. On 26 August 1991, the Applicant wrote to the Director of UNRWA Affairs for the Syrian Arab Republic requesting a copy of the report of the Board of Enquiry, together with an explanation of the reasons for the disciplinary action imposed upon him. In a reply dated 7 September 1991, the Director transmitted to the Applicant a copy of the Board of Enquiry's report. He added: "Based on the findings of the Enquiry Board and the recommendation of your supervisors, I have decided to transfer you on demotion to a clerical post. Because there was no vacant post in the Central Area to which you could be accommodated, you were transferred to the post of Clerk 'C' at Supply and Transport Department of Damascus." In a letter dated 15 September 1991, the Applicant requested the Field Director to review the decision to transfer him on demotion for disciplinary reasons. The Applicant admitted having forged documents to support entitlements to "special hardship cases" rations, but contended that he had done so under threat from a violent person. On 28 September 1991, the Field Director informed the Applicant that he had decided to maintain the decision in view of the breach of trust committed by the Applicant. On 10 October 1991, the Applicant lodged an appeal with the Joint Appeals Board (JAB). The JAB adopted its report on 23 April 1992. Its recommendations read as follows: "9. Recommendations (a) The Board unanimously and, after a thorough consideration of all aspects of the case, recommends that the Administration's decision be upheld and the case be dismissed. (b) However, for humanitarian reasons, the Board wishes to recommend that the Appellant be given a consideration of transfer

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to Hama in his same present grade and salary whenever a suitable opportunity arises and without prejudice to the interests of the Agency, which interests remain paramount." On 15 May 1992, the Officer-in-Charge, Headquarters, UNRWA, transmitted to the Applicant a copy of the Board report and informed him as follows: "... As you can see, the Board has recommended that the Administration's decision be upheld and the case dismissed. I accept these conclusions, and the contested decision will therefore stand. As for the Board's recommendation that you be transferred to a post in the Horns Area, provided that it is not prejudicial to the interest of the Agency, I understand that the Field Administration has already informed you that it would be done as soon as a suitable post at your current level becomes available." On 30 July 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Applicant was threatened by a professional murderer and thus acted in fear of his life. 2. In the circumstances, the Respondent's decision was arbitrary. Whereas the Respondent's principal contentions are: 1. The decision to impose a disciplinary measure upon the Applicant was based on objective evidence of misconduct and constituted a valid exercise of the Commissioner-General's discretionary authority. 2. The Applicant's transfer on demotion was made in accordance with the Agency's regulations and rules. 3. The Applicant has failed to demonstrate that the impugned decision was flawed by a mistake of fact, an error of law, a denial of due process or was vitiated by extraneous or prejudicial factors. The Tribunal, having deliberated from 27 June to 20 July 1994, now pronounces the following judgement: I. This is a simple case in which the Applicant, a Social Welfare Worker at Horns falsified a "prison certificate under threat or the impression of threat" which would have entitled the family of Mr. Yasin Qudsi to receive rations reserved for "Special hardship cases". Mr. Qudsi was in prison, convicted of manslaughter, when these rations were first allotted to his family. But, even after his release, when he saw the Applicant on or about 23 May 1991, he insisted that his family should continue to receive rations as before, and in fact, received from the Applicant a forged certificate of entitlement to rations.

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II. The Applicant first denied and later confessed that he had provided a forged certificate, entitling Mr. Qudsi's family to receive rations, apparently worth $40.00. He was suspended on 25 June 1991. A Board of Enquiry was set up. In its report, dated 29 July 1991, the Board concluded that the Applicant's guilt had been established. In recommending severe disciplinary action, the Board added: "On the other hand it should be taken into account that Mr. Hayek is a timid, fearful man and committed his act under pressure." The Respondent, who had lifted his suspension order with effect from 21 July 1991, demoted the Applicant and transferred him with effect from 3 September 1991, from Homs (his home area) to Damascus—a distance of about 250 kilometres. The Applicant has a large family, with some handicapped children, and aged and sick parents. The family had to be looked after from a distance and with a reduced income. The Respondent was not insensitive to the Applicant's plight and considered the disciplinary measures taken against him "the mildest possible under the circumstances." The Applicant persuaded the JAB to recommend that the Respondent make an effort to transfer him closer to home when a suitable opportunity arose to do so. III. As a consequence of the JAB recommendation, the Respondent informed the Applicant, on 15 May 1992, that he would be transferred to the Homs area as soon as a suitable post in his current grade became available. In a reply to a question put by the Tribunal, the Respondent stated that with effect from 1 April 1994, the Applicant was transferred "to the post of social worker in the Syrian Field Office Control Area, which is where Horns is located. [The Applicant's] posting is at grade 7, step 12, which was his grade prior to demotion. [The Applicant] is currently working in this post." IV. This transfer would have settled the problem, except that it took the Respondent nearly two years to effect it. The Applicant complains that the Respondent could have kept his promise to transfer the Applicant back to the Homs area earlier if he had been so inclined. The Tribunal notes that the Respondent has often stated he was fully aware of and sensitive to the Applicant's circumstances. The Tribunal, therefore, finds some substance in the Applicant's complaint, but cannot judge definitively whether the Respondent could, in keeping with the rules, practice and interest of the Agency, have given the promised relief to the Applicant earlier. V. However, in view of the circumstances—some of them extenuating—in which the Applicant committed and later admitted a serious error, and also, recognizing the sympathy and understanding shown to the Applicant by the Respondent, the Tribunal, nevertheless, considers that for having been obliged to stay away from his home on demotion for nearly three years with consequent hardship, he is entitled to some com-

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pensation for the delay which took place in moving him back to the Homs area. The Tribunal assesses this compensation at US$ 1,000.00. VI. The Applicant has requested in his pleas "Payment of fees and expenses including the legal counsel's fees." He has also requested, in his additional pleas "Costs sustained . . . including translation of letters and documents... mail fees, telexes to Respondent, which is estimated roughly at US$ 450.00." The Tribunal, in keeping with its jurisprudence (Judgement No. 237, Powell (1979)), awards him the sum of US$ 250.00 only. VII. In view of the above, the Tribunal orders the Respondent to: (a) Pay to the Applicant a sum of US$ 1,000.00. (b) Pay to the Applicant the sum of US$ 250.00, as legal expenses. (Signatures) Samar SEN

Hubert THIERRY

President Francis SPAIN

Member R. Maria VICIEN-MILBURN

Member Geneva, 20 July 1994

Executive Secretary

Judgement No. 654 (Original: English) Case No. 692: Hourani

Against: The CommissionerGeneral of the United Nations Relief and Works Agency for Palestine Refugees in the Near East

Application of a former staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) for rescission of decision of dismissal, for compensation for injury sustained and for costs. The Joint Appeals Board considered that the report of the Board of Enquiry was fully credible, that misappropriation by the Applicant of UNRWA property had been proved and that the Applicant had provided no evidence of prejudice.—It recommended to uphold the decision. The Tribunal considers that the Respondent carried out proper investigations on the Applicant's alleged wrongdoing.—It finds that the Board of Enquiry and the Joint Appeals Board performed their work conscientiously and that there is no ground to question their

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conclusions and it upholds their findings that the Applicant was guilty of theft and misappropriations ofUNRWA property.—The guilt or innocence of other persons is not at issue before the Tribunal, but only the question whether the findings against the Applicant are justified.—Applicant's request to be given access to all documents and right to cross-examine witnesses.—The Tribunal has consistently maintained the right of Applicants to see all evidence against them and their right to cross-examine witnesses.—In this case, however, when there is evidence that witnesses are likely to be suborned or subjected to threats and physical harm, the Respondent is entitled to withhold certain information from the Applicant.—The Tribunal is satisfied that the material before it is adequate and that there will be no miscarriage of justice in this case.—The Tribunal holds that, in deciding that the Applicant could not be represented before the Joint Appeals Board by an outside counsel, the Respondent followed the Staff Rules.—The Tribunal recalls that it does not object to the liberal exercise of discretion by the Respondent in disciplinary cases, especially in cases of corruption, provided it is not tainted with bias, prejudice or similar factors.—The Tribunal finds that the Respondent exercised his discretion properly and without bias, prejudice or other extraneous factors and that the sanction of termination was not excessive. Application and request for costs rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Hubert Thierry; Mr. Francis Spain; Whereas, on 20 August 1992, Ibrahim Fu'ad Hourani, a former staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, hereinafter referred to as UNRWA, filed an application requesting the Tribunal to order, inter alia: ii. Rescinding the decision of dismissal, considering the period of cessation as special leave with full pay, and refunding to the Applicant the amount of $710 discounted unjustifiably from the Applicant's provident benefits. iii. Compensating the Applicant for the severe injury [caused by] . . ., abuse of authority, exercised intentionally and persistently by the Respondent, estimated at $200,000. v. Payment of all expenses and fees the Applicant sustained including the legal counsel's fees." Whereas the Respondent filed his answer on 17 December 1992; Whereas, on 26 April 1993, the Applicant filed written observations on the Respondent's answer as well as incidental pleas in which he requested, in part: "Costs sustained represent[ing] secretarial work including the translation of documents, photo copying, seeking criminal technical expertise, during the different stages of the appeal,... [and also]... mail and telexes fees, typing, etc ... estimated at $2,000.00."

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Whereas, on 27 June 1994, the President of the Tribunal ruled that no oral proceedings will be held in the case; Whereas the facts in the case are as follows: The Applicant entered the service of UNRWA as a Trades Instructor, Plumbing, at the Damascus Vocational Training Centre (DVTC), on 1 September 1986, on a temporary indefinite appointment at the grade 8, step 1 level. After satisfactory completion of his probationary period, the Applicant's appointment was confirmed, with effect from 1 September 1987. He remained in the same post, at the same level, until the termination of his services on 18 June 1991. On 13 April 1991, the Principal of the DVTC informed the Acting Field Administration Officer in the Syrian Arab Republic that a substantial theft of training supplies had taken place at the DVTC on 4 April 1991. He described how the theft had been committed, based on the statements of different witnesses who reported the incident to the Principal. In his conclusion, the Principal identified the Applicant as "the major [perpetrator] responsible" for the theft and recommended his suspension without pay. He also recommended that if the Applicant did not resign, his services with the Agency should be terminated with effect from 16 April 1991. On 20 April 1991, the Director of UNRWA Affairs in the Syrian Arab Republic appointed a Board of Enquiry to investigate the matter. Also on 20 April 1991, the Applicant was advised by the Acting Field Administration Officer that he would be suspended from service pending an investigation. In its report to the Field Director, dated 21 May 1991, the Board of Enquiry concluded that the Applicant had "not only caused substantial losses to the Centre's property over several years, but has shown himself as a man of considerable brutality". On 18 June 1991, the Field Administration Officer informed the Applicant as follows: "... this is to advise you that based on the findings of the Board of Investigation, it has been decided to terminate your services with the Agency for misconduct, effective Close of Business on 19 April 1991, under the provisions of area staff rule 110.1. In the circumstances, you shall not be entitled to any termination indemnity. Anyway, you shall be paid your credits and exceptionally the Agency credits standing to your name in the Provident Fund Account." In an undated letter sent in August 1991, the Applicant requested the Field Director to review this administrative decision.

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Administrative Tribunal of the United Nations

On 6 August 1991, the Applicant lodged an appeal with the Joint Appeals Board (JAB). The JAB adopted its report on 12 May 1992. Its findings and recommendation read, in part, as follows: "IV.... 1. The report of the Board of Enquiry which propelled findings made upon investigations, queries and hearing witnesses does not lack any credibility, as is alleged by the Appellant due to the following reasons: (a) the constituency of the Board of Enquiry comprised Agency staff members that the Appellant and the Administration raised no question about their impartiality or credibility and thus,.. ., could not have been motivated by prejudice against the Appellant; 2. The Board contends that the Appellant's evidence to establish his obtainment of a permission from the late Principal, DVTC, to take tools and materials to outside the DVTC for the purpose of training an engineer does not furnish sufficient grounds for the Appellant's acquittal as balanced against testimonies not in the Appellant's favour and which referred to habitual acts of misappropriation over years carried out by the Appellant. 3. The Appellant's allegation that misappropriations were taking place in other parts of the Centre, does not,..., provide any materiality, relevance or coherence to the Appellant's defence against the findings of the Board of Enquiry convicting him. 4. After a thorough consideration, the Board finds it difficult to see how the late Principal, DVTC, could have been personally motivated against the Appellant. This is based on the failure of the Appellant to provide material evidence to that effect and which could, if [it] existed, impel concurrence with the Appellant's allegation. V. Recommendation In view of the foregoing, the Board unanimously makes its recommendation: 1. The Administration's decision of 18 June 1991, in respect of the Appellant, be upheld, and 2. That the case be dismissed." On 18 June 1992, the Commissioner General transmitted to the Applicant a copy of the JAB report and informed him as follows: "I have examined the report of the Joint Appeals Board and accept the conclusions arrived at by the Board. I must, therefore, in-

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form you that the Administration's decision to terminate your services will stand." On 20 August 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The decision to terminate the Applicant's services is unfounded and was based on false allegations, fabricated by the Principal of the Centre. 2. The JAB recommendations were biased and based on an unsubstantiated erroneous preconception of the facts. 3. The Applicant was not allowed to cross examine witnesses. 4. The Applicant was entitled to be represented before the JAB by outside counsel. Whereas the Respondent's principal contentions are: 1. It is within the discretionary authority of the Commissioner General to consider that the purpose of keeping the proceedings of the JAB straightforward and efficient is better served by allowing representation by serving staff members only. 2. In view of the exceptional circumstances of this case, where the security of witnesses is at risk, the Applicant should not be given access to certain documents that he requested. 3. The Respondent validly exercised his discretion to terminate the Applicant's appointment. 4. The gravity of the offence committed by the Applicant, i.e. wilfully plotting to and succeeding in stealing from the Agency, justified the disciplinary measure that was applied in this case. 5. The Applicant has failed to demonstrate that the impugned decision was flawed by a mistake of fact, an error of law, a deprivation of due process or was vitiated by extraneous or prejudicial factors. The Tribunal, having deliberated from 27 June to 20 July 1994, now pronounces the following judgement: I. The Tribunal notes that when the theft of stores in the DVTC was reported on 4 April 1991, the Respondent spared no time or effort to conduct proper investigations. As a result of these enquiries, it was established, beyond doubt, that large-scale misappropriation of stocks and consumer goods, spread over a long time and apparently involving a number of people, had taken place at the DVTC. II. The Respondent admits, by implication at least, that one factor leading to the wide and systematic stealing of supplies of all kinds—entailing a substantial loss to the Agency—could have been the lack of timely and effective supervision. Although the Applicant had been in ser-

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vice for several years, the only audit report which the Tribunal has seen relates to the year 1991. It reveals that "over the preceding years, failure within the DVTC to ensure compliance with the Agency's operational procedures caused a general breakdown in the internal control of supplies movement, stock-taking and surveyed Agency property". In this atmosphere of slackness of supervision and control, much pilfering took place and the Applicant was considered a major operator with at least one accomplice, Mr. Su'oud, whose case has been dealt with by the Tribunal separately, in its Judgement No. 652, signed today. III. The Applicant repeatedly challenges all aspects of the handling of the charges brought against him by the Respondent. He asks the Tribunal for an oral hearing, the production and examination of documents already examined earlier by the Board of Enquiry, the JAB and even in the earlier enquiry held by the Principal, DVTC. IV. In the long complaint of 38 pages (in Arabic and later in English) finally sent by the Applicant on 6 August 1991, to the JAB, he attempts to present a picture that he is innocent and honest and has been made a scapegoat for the losses suffered by the DVTC as a result of the wrong-doings of other people, particularly of the Principal. The Principal died early in 1992. V. In his appeal to the JAB, the Applicant elaborated on his right to have a counsel of his choice and asked for a number of documents which, he asserted, had been wrongly denied to him. To the Tribunal, he has repeated many of his pleas before the JAB, including his request for numerous documents which, he claims, formed the basis of conclusions against him, arrived at as a result of various investigations carried out by the Respondent. The Applicant also asks for the witnesses to be identified and cross-examined. VI. The Tribunal has considered these requests. It has also taken into account the Respondent's objection that various witnesses and others would be exposed to risk and threat if the Applicant had access to their identities and statements. The Tribunal has consistently maintained the right of Applicants to see all evidence against them and their right to cross-examine witnesses. The Tribunal notes that in certain exceptional circumstances, and so long as it is established to the Tribunal's satisfaction that the Applicant was afforded fair and legitimate opportunities to defend his or her position, extra precautionary measures to protect witnesses may be justified. The Tribunal is of the view, that in this case—when evidence shows that witnesses are likely to be suborned or subjected to threats and physical harm—the Respondent would be justified in withholding certain information from the Applicant, including the identity of some witnesses and others involved in assisting the investigations. The Tribunal, there-

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fore, considers that the material before it is adequate for its purpose and there has not been, nor will there be, any miscarriage of justice in this case. This decision of the Tribunal is in conformity with its views expressed in its Judgement No. 558, Faruq (1992). VII. The Tribunal does not consider itself called upon to rule on who could and who could not represent the Applicant as his counsel before the JAB, inasmuch as in this and other matters the Respondent was following the area Staff Rules in force in 1991. Besides, the Tribunal does not find that the appointment of the counsel who eventually represented the Applicant before the JAB had the slightest adverse effect on his case. VIII. The Tribunal, in considering the evidence presented to it, finds that the two main bodies—the Board of Enquiry established by the Agency, and subsequently the JAB, performed their work conscientiously and there is no ground to question their conclusions. The Tribunal notes that there were some difficulties and some minor irregularities, but none of them stood in the way of establishing that the Applicant was responsible, directly or indirectly, for the theft and misappropriation of stocks belonging to the Agency. If any credence is to be given to the protestations of the Applicant, there should have been some explanation as to why such a large number of people would have testified against him. Simply to assert blandly and repeatedly, but without any evidence, that he disagrees with the Respondent entirely and that all was concocted by the now dead Principal of the DVTC, carries little conviction. The Tribunal notes that many of the allegations against the Principal and the Respondent were made after the Board of Enquiry had come to its conclusions and in some instances, even after the JAB had made its recommendation on 12 May 1992. IX. The Tribunal further notes that no objection was raised to the composition of the Board of Enquiry or of the JAB before they began their work, and finds that late complaints on these matters are not tenable. The Tribunal accepts that many other persons might have been involved, as suggested by the Applicant, in the large-scale abuse and misappropriation of stocks from the DVTC, but the issue before the Tribunal is not the guilt or innocence of other persons, but essentially the determination of whether the conclusions reached against the Applicant by the JAB are justified or whether he has been, as he claims, a victim of other people's intrigue, malice and conspiracy. Taking account of all the evidence before it, the Tribunal finds that the Applicant has not established his contentions. It therefore upholds the findings of the Board of Enquiry and the conclusions of the JAB. X. The only question left for the Tribunal to consider is whether the penalty imposed on the Applicant—termination—was justified. The Tribunal notes that the disciplinary measure imposed was within the dis-

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cretion of the Respondent and, in the circumstances of this case, cannot be considered excessive. Finally, the Tribunal states once again that in disciplinary cases, especially where large-scale corruption is rampant, it would not object to the liberal exercise of discretion by the Respondent, provided it is not tainted with bias, prejudice or similar factors. The Tribunal holds that, in this case, the Respondent exercised his discretion properly and that such exercise was not influenced by bias, prejudice, and other extraneous factors. XI. In view of the above, the Tribunal rejects the application as well as the Applicant's request for costs. (Signatures) Samar SEN

Hubert THIERRY

President Francis SPAIN

Member R. Maria VlCIEN-MlLBURN

Member

Executive Secretary

Geneva, 20 July 1994

Judgement No. 655 (Original: English) Case No. 695: Habash

Against: The CommissionerGeneral of the United Nations Relief and Works Agency for Palestine Refugees in the Near East

Application of a staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)for rescission of disciplinary and financial measures against him, for reinstatement in his former grade and for compensation for losses sustained. The Joint Appeals Board found that the disciplinary measure was taken at a time when the Staff Rules had no provision for dealing with appeals of this sort.—It recommended that the appeal was out of time and declared it not receivable. Respondent's contention that, at the time the disciplinary measures were taken against the Applicant (suspension without pay for one month and transfer on demotion), the Area Staff Regulations and Rules did not confer jurisdiction on the Tribunal.—The Tribunal has

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already disposed of this contention in its Judgements No. 628 (Shkukani) and No. 650 (Bakr et al).—However, the Tribunal must conclude that, because of the time which elapsed before the Applicant lodged his appeal with the Joint Appeals Board, the appeal is time-barred. Application declared time-barred.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Hubert Thierry; Mr. Francis Spain; Whereas, on 12 May 1992, Abdallah Mohamad Habash, a staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, hereinafter referred to as UNRWA, filed an application that did not fulfil all the formal requirements of article 7 of the Rules of the Tribunal; Whereas, on 28 August 1992, the Applicant, after making the necessary corrections, again filed an application requesting the Tribunal, inter alia, to: 7. Rescind all the disciplinary and financial measures which were applied against me. 8. Reinstate me to a post with a grade in parity to Area Registration and Distribution Officer. 9. Compensate me for all the financial recurring losses which were being entailed since my demotion. " Whereas the Respondent filed his answer on 22 January 1993; Whereas, on 9 March 1994, the President of the Tribunal requested the Respondent to produce an answer on the merits, which he did on 20 April 1994; Whereas the Applicant submitted an additional undated document; Whereas the facts in the case are as follows: The Applicant entered the service of UNRWA as an area staff member on 1 September 1964, as Assistant Distribution Team Leader at the grade 2, step 1 level, on a temporary indefinite appointment. He served thereafter at the Jerusalem Field Office of the West Bank, having reached the grade 9, step 1 level, with the functional title of Area Registration and Distribution Officer. During the period 16 May to 15 June 1989, the Agency undertook an operational audit of the Supply, Distribution and Warehousing Opera-

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tions in the West Bank Field, being concerned about pilferage which was taking place there. In a surprise visit to the Jerusalem Area Stores, an auditor discovered irregularities, including the excessive loading of commodities on trucks for daily distribution. The auditor made a second surprise visit to the Jerusalem Area Stores and found additional irregularities. He recommended that a Board of Enquiry be established to investigate the distribution operations of the Jerusalem Area Stores. A Board of Enquiry (the Board) was appointed to investigate irregularities in the distribution of rations in the Jerusalem Area. Commencing its work on 23 August 1989, the Board found that the Distribution Team almost uniformly failed to follow the Agency rules and guidelines regulating the storage and distribution of commodities; that the Applicant "carried out no proper checking of the figures on the distribution list sent to him by the Team Leader" and, given that he was "responsible for verification and modification of records, this was a serious dereliction of duty." The Board found that the Applicant's serious dereliction of duty constituted misconduct. On 2 November 1989, the Director of UNRWA Operations in the West Bank informed the Applicant as follows: "... as the result of irregularities discovered by an audit and a Board of Enquiry into distribution of commodities with which you were involved, the Agency has decided, as a disciplinary measure, to suspend you without pay for a period of 30 days with effect from 3 November 1989, and upon completion of this suspension without pay to reassign you to another post which has yet to be identified." On 19 December 1989, the Field Administration Officer informed the Applicant that he would be transferred to the post of Clerk "B", at the grade 6, step 20 level, at the Registration Office of the Jerusalem Area, with effect from 12 December 1989. On 8 November 1989, the Applicant asked the Field Director to reconsider the decision to suspend him. In a reply dated 28 November 1989, the Field Director informed the Applicant that his decision would be maintained. After a further exchange of correspondence, on 21 February 1990, the Applicant wrote to the Director of Personnel at the Agency's Headquarters in Vienna, requesting that the Joint Appeals Board (JAB) be convened to examine his case. On 7 March 1990, the Director of Personnel informed the Applicant that the Secretary of the JAB had advised him that there was no basis for an appeal under area staff regulation 11.1 then in force. On 30 April 1990, the Applicant wrote to the Field Director, requesting to be reinstated in his former post. In a letter dated 26 July 1990, the

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Field Administration Officer informed the Applicant that the decision to suspend him and to transfer him to another post was irrevocable. On 26 July 1991, the Applicant lodged an appeal with the JAB. The Board adopted its report on 4 February 1992. The recommendation of the majority of the Panel reads as follows: "The disciplinary measure of transferring the Appellant on demotion arose on 2 November 1989 i.e. at a time when Staff Rules did not provide for dealing with an appeal case of the sort. Therefore, the Board submits and makes its recommendation to the effect that the appeal of [the Applicant] is out of time and consequently declares it as not being receivable for consideration by the Board." In a dissenting opinion, one member of the JAB recommended as follows: 2. It remains a fact that the main objective of the Joint Appeals Board is trying to realize justice through reviewing the case(s) and making recommendations to the Commissioner-General. I am of the opinion that achieving this noble objective cannot and should not be blocked by procedural matters such as time limits, taking into consideration that the respective staff rule is flexible on this point. Please refer to staff rule 111 .3(4). " On 5 March 1992, the Commissioner General transmitted to the Applicant a copy of the JAB report and informed him as follows: "As you can see, the Board has declared that your 'appeal' is not receivable because it was submitted out of time. The Board has also considered that the cause of action arose at a time when the Staff Regulations and Rules did not provide for such remedy. I must therefore inform you that the Administration's decision of 2 November 1989, to transfer you to the post of Clerk B at the Jerusalem Health Centre will stand." On 28 August 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Respondent's decision to suspend the Applicant was unjust and caused him financial hardship. 2. The Applicant was innocent and should not have been subject to disciplinary sanctions. Whereas the Respondent's principal contentions are:

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1. The Area Staff Regulations and Rules governing the Applicant's appointment at the time of its termination did not assign jurisdiction to the United Nations Administrative Tribunal, which is therefore without competence ratione materiae to entertain the present application. 2. The United Nations Administrative Tribunal is without competence ratione temporis to hear applications from UNRWA Area staff members when the cause of action arose before 14 June 1991. 3. The Applicant is without locus standi. 4. The Applicant's claim against the Respondent is time-barred. 5. The evidence demonstrates that the Respondent's imposition of disciplinary measures against the Applicant was proper. The Tribunal, having deliberated from 27 June to 20 July 1994, now pronounces the following judgement: I. The Applicant was suspended without pay, with effect from 3 November 1989, "as a result of irregularities discovered by an audit and a Board of Enquiry [looking] into distribution of commodities with which [he was] involved." Later he was transferred on demotion to another post. He made a number of complaints and representations, but the Respondent maintained his decision. The Applicant's main plea was that he was innocent and had been made a scapegoat as a result of malice and intrigue against him. II. The preliminary question which the Respondent has raised is that at the time the Applicant's wrong-doings were discovered, the Tribunal had no jurisdiction over cases involving area staff members (such as the Applicant) who were governed by the Area Staff Regulations and Rules then in force. These were later modified on 14 June 1991, but as the incidents and events under consideration occurred before this date, the Respondent asserts that the Tribunal has no jurisdiction to decide this case. The Tribunal has already dealt with these contentions in its Judgements No. 628, Shkukani (1993) and No. 650, Bakr et al, rendered today. It will not address them here. III. The question to be determined is whether the Applicant's appeal to the Joint Appeals Board (JAB) is time-barred. According to the JAB it is. The dissenting member of the JAB expresses his concern that justice might not be done if the Respondent's argument that the Tribunal was without competence were accepted. As stated above, the Tribunal has ruled on this matter in its Judgement No. 628, Shkukani and in Judgement No. 650, Bakr et al, rendered today. However, despite the understandable concerns expressed by the dissenting member of the JAB, the Tribunal is compelled to conclude, as the JAB itself did, that, because of the period of time which elapsed before the Applicant lodged his appeal with the JAB, it is time-barred.

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(Signatures)

Samar SEN President Francis SPAIN Member

Hubert THIERRY Member R. Maria VICIEN-MILBURN Executive Secretary

Geneva, 20 July 1994

Judgement No. 656 (Original: English) Cases: No. 637: Kremer No. 642: Gourdon

Against: The Secretary-General of the United Nations

Application of a former staff member of the United Nations and of aformer member of the Joint Inspection Unit (JIU) for payment of the repatriation grant. Application directly submitted to the Tribunal. The Tribunal decides to consider the two applications jointly as the issues presented by the Applicants are identical.—The Respondent has not raised any issue concerning the Tribunal's jurisdiction in respect of the Applicant who was member of the JIU. The Applicants were refused the payment of the repatriation grant on the ground that, at the time of their separation from service, they resided in their home country (France) although their duty station (Geneva) was outside of that country.—The Tribunal examines the relevant texts (staff rules 109.5 (i) and (d) and Annex IV to the Staff Regulations, in the light of its Judgement No. 408 (Rigoulet) of 1987 (including the dissenting opinion of Mr. Roger Pinto) in which it upheld, by a majority, the decision to deny the repatriation grant in a similar case.—Reminder of principles of interpretation: Different provisions should be read together and not in isolation in order to obtain their proper construction.—An interpretation which would leave without effect part of the text should be rejected.—Interpretation should lead to the discovery of the intention of the original drafters.—Review of the history of the repatriation grant.—In the presence of two possible interpretations, interpretation leading to an unreasonable result should be rejected in favour of an interpretation leading to a reasonable and just result.—The Tribunal concludes that relocation upon separation from service and the consequent payment of the repatriation grant are contingent upon the location of the duty station and not the location of the staff member's residence.—Such is the interpretation adopted by all Geneva-based organizations, except the United Nations and GATT.-The policy of these two organizations amounts to discrimination, violating the principle of equality.-Regarding the principle of stare decisis, the Tribunal is not convinced that it cannot reverse one of its previous findings. The Tribunal concludes that the Applicants are entitled to the repatriation grant and orders its payment.

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Dissenting opinion of Mr. Samar Sen.—He disagrees with the majority's interpretation of the relevant rules and with the finding that there was a discrimination.—He agrees that the Tribunal can revise its opinion, but there must be some newfacts or new considerations, which is not the case since the Rigoulet decision.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of: Mr. Samar Sen, President; Mr. Francis Spain; Mr. Mayer Gabay; Whereas, on 4 December 1991, Henri Julien Kremer, a former staff member of the United Nations, filed an application requesting the Tribunal, inter alia: "... to order the Secretary-General of the United Nations to pay me the repatriation grant to which I am entitled under staff rule 109.5, plus the interest accruing as from the date of my separation from service. Whereas the Respondent filed his answer on 11 March 1992; Whereas the Applicant filed written observations on 10 April 1992; Whereas at the request of Alain Andre Marie Gourdon, a former member of the Joint Inspection Unit (JIU), the President of the Tribunal, with the agreement of the Respondent, successively extended until 31 October 1991 and 31 January 1992 the time-limit for the filing of an application with the Tribunal; Whereas, on 12 December 1991, the Applicant Gourdon filed an application requesting the Tribunal, inter alia: ... to rescind the decision taken by the Chief, Personnel Service at UNOG and upheld by the Secretary-General of the United Nations, which denies me any right to payment of a repatriation grant. " Whereas the Respondent filed his answer on 5 March 1992; Whereas the Applicant filed written observations on 5 June 1992; Whereas, on 17 June 1993, the Tribunal decided to adjourn consideration of the cases and to put questions to the Respondent, to which he provided answers on 25 August 1993; Whereas in November 1993, the Tribunal decided to further adjourn consideration of the cases and on 9 February 1994, put additional ques-

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tions to the Respondent, to which he provided answers on 9 March, 30 March and 6 April 1994; Whereas the facts in the cases are as follows: The Applicant Kremer, a French national, entered the service of the United Nations on 29 April 1971, as a Translator-Trainee at the P-2 level. After serving on fixed-term appointments and on a probationary appointment, he was given a permanent appointment with effect from 1 April 1973. His duty station was New York. The Personnel Action Form issued upon recruitment stated, inter alia, that the Applicant was "entitled to repatriation grant" to France. His place of home leave was Paris, France. After completing a one-year assignment at the Economic Commission for Africa in Addis Ababa, from 1 July 1976 through 30 June 1977, the Applicant returned to Headquarters and was promoted to the P-4 level as a Revisor, with effect from 1 April 1981. The Applicant was then assigned to the Economic and Social Commission for Asia and the Pacific in Bangkok, with effect from 11 January 1983. He was reassigned to the United Nations Office in Geneva (UNOG) as a Translator, with effect from 13 August 1985. The Applicant separated from the Organization on 7 May 1991. During his service at UNOG, the Applicant lived in PrevessinMoe'ns, a town located in the French "Zone franche du Pays de Gex et de la Haute Savoie" adjacent to Geneva. In a memorandum dated 10 August 1987, a Personnel Officer informed the Applicant, in connection with his request for home leave, that: ". . . The Staff Rules of the United Nations (rule 105.3, paragraph (a)) provide a right of home leave for staff members who are internationally recruited and serving outside their country of origin. In your case, as a French national, residing in France since 15 October 1985, you have unfortunately lost the right to home leave, an entitlement which you exercised during your service in other duty stations. I should also take this opportunity to remind you that while you are residing in France, you no longer have the right to a repatriation grant..." (Translation by the Tribunal) On his separation from service, the Applicant was not paid a repatriation grant. In the Personnel Payroll Clearance Action Form issued in connection with his separation, it is stated under item 17 that he was not entitled to the repatriation grant because he "lived in France from 15.10.85 until c.o.b. [close of business]". Under item 15 of the same form, it is stated that the Applicant's residence after separation would be Paris.

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In a letter dated 14 May 1991, the Applicant asked the SecretaryGeneral to review the administrative decision not to grant him the repatriation grant and, in case his reply were in the negative, to grant him permission to submit his appeal directly to the Administrative Tribunal. On 6 September 1991, the Assistant Secretary-General for Human Resources Management informed the Applicant that the Secretary-General had decided to maintain the decision not to pay him the repatriation grant and had agreed to the direct submission of an appeal against this decision to the Administrative Tribunal. On 4 December 1991, the Applicant filed with the Tribunal the application referred to earlier. The Applicant Gourdon, a French national, was elected by the General Assembly and appointed by the Secretary-General as a member of the Joint Inspection Unit (JIU) to serve on a five-year fixed-term appointment, commencing on 1 January 1986 and ending on 31 December 1990. The JIU and its Secretariat are located in Geneva. During his service with the JIU and, at the time of his separation, the Applicant lived in VeigyFoncenex in the French "zone Franche du Pays de Gex et de la Haute Savoie" adjacent to Geneva. On 23 November 1990, the Applicant asked the Chief of Personnel of UNOG for payment of the repatriation grant, under staff rule 109.5 and Annex IV to the Staff Rules. In a reply dated 3 December 1990, the Chief of Personnel informed the Applicant that staff rule 109.5 precluded payment of the repatriation grant to staff members who reside in their home country at the time of their separation from service. He further stated that since the Applicant was a French national residing in France, he was excluded by the terms of the rule from the payment of such a benefit. He added: "the concept of 'zone franche' relates exclusively to certain customs regulations but does not confer any international status nor affects in any way the sovereignty of France over its own territory,..." On 26 December 1990, the Applicant asked the Secretary-General to review the administrative decision not to grant him the repatriation grant and, in case his reply were in the negative, to grant him permission to submit his appeal directly to the Administrative Tribunal. On 18 April 1991, the Assistant Secretary-General for Human Resources Management informed the Applicant that the Secretary-General had decided to maintain the decision not to pay him the repatriation grant and agreed to the direct submission of an appeal against this decision to the Administrative Tribunal. On 12 December 1991, the Applicant filed with the Tribunal the application referred to earlier.

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Whereas the Applicants' principal contentions are: 1. According to the literal and logical interpretation of staff rule 109.5, it should only apply to staff members who are residing in their home country while performing official duties there. For example, French citizens, working in Paris for UNESCO. 2. The Rigoulet decision (Judgement No. 408 (1987)) violates the principle of equality and is not in keeping with the practice of other international organizations in Geneva. 3. French staff members are victims of a dual form of discrimination, based on nationality and place of residence. Whereas the Respondent's principal contentions are: 1. The Tribunal must maintain its recent interpretation of staff rule 109.5(i) as stated in the Rigoulet decision, denying payment of the repatriation grant to staff members residing in their home country at the time of their separation from service. 2. The Applicant cannot claim to have been unaware of the fact that he would lose his entitlement to the repatriation grant as a result of residing in France. The Tribunal, having deliberated in Geneva on 10 June 1993, in New York from 20 October to 16 November 1993, and in Geneva from 22 June to 21 July 1994, now pronounces the following judgement: I. The issues presented by the Applicants are identical, and the Tribunal therefore considers the two applications jointly. The Respondent has not raised any issue concerning the Tribunal's jurisdiction in respect of the Applicant Gourdon, a member of the JIU, and has requested that the Tribunal adjudicate his claim. II. Having reviewed the documentation filed in both these cases as well as the Rigoulet decision (Judgement No. 408 (1987)), the Tribunal considers that the Applicants are entitled to the repatriation grant by virtue of the considerations set forth below. III. The Respondent's refusal to pay the Applicants the repatriation grant is based on his interpretation of staff rule 109.5 (i). In fact, the Tribunal believes that the outcome of both these cases hinges upon the proper interpretation of staff rule 109.5 (i). This rule reads as follows: "No payments shall be made to... any staff member who is residing at the time of separation in his or her home country while performing official duties. A staff member who, after service at a duty station outside his or her home country, has served at a duty station within that country may be paid on separation, subject to paragraph (d) above, a full or partial repatriation grant at the discretion of the Secretary-General."

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The other relevant provisions on the repatriation grant are staff rule 109.5(d) and Annex IV to the Staff Regulations which provide as follows: Staff rule 109.5(d) "Payment of the repatriation grant shall be subject to the provision by the former staff member of evidence of relocation away from the country of the last duty station." Annex IV "In principle, the repatriation grant shall be payable to staff members whom the Organization is obligated to repatriate ... Staff members shall be entitled to a repatriation grant only upon relocation outside the country of the duty station." IV. An important principle of interpretation is that construction is to be made of the text as a whole, and not of one section alone. That is, the meaning of a section may be affected by other individual sections in the same text. Therefore, staff rule 109.5 (i) should be construed with reference to the context and with reference to other provisions, namely staff rule 109.5 (d) and Annex IV. In other words, these provisions should be read together and not in isolation in order to obtain their proper construction. For example, and to illustrate this principle of interpretation, if one section of an Act requires that "notice" be "given", verbal notice would be sufficient. But if another section provides that notice should be "served" on a person, or "left" with him, one could infer that a written notice was intended. (Maxwell on Interpretation of Statutes, 12th Edition, pp. 59-60). V. Both staff rule 109.5 (d) and Annex IV specifically refer to the duty station which the individual must leave in order to be entitled to the repatriation grant. These texts do not make entitlement to the grant subject to any nationality condition. Leaving the country of the "duty station" is the pivotal and determining condition of eligibility. The UN's interpretation of staff rule 109.5 (i) which uses the concept of "residence" as the condition for eligibility leads to illogical and unfair results for it does not take into account the other relevant provisions. VI. The Tribunal considers that the majority opinion of the Tribunal in the Rigoulet case concerning the interpretation of staff rule 109.5 (i) should be regarded as concerning a staff member performing official duties in his/her home country. Otherwise, the expression "performing official duties" would be superfluous. An interpretation of a provision which would leave without effect part of the text should be rejected. In addition, as noted by Mr. Roger Pinto in his dissenting opinion "according to a consistent rule of interpretation, the provision to be interpreted

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must produce a useful effect" (paragraph XIII). The Tribunal considers that Mr. Roger Pinto's opinion should be applied to the present cases. VII. In the context of the provisions dealing with eligibility for the repatriation grant, it is helpful to refer to the original purpose of this grant. One of the goals of interpretation is to discover the true intention of the original drafters. VIII. It appears that the repatriation grant was introduced as a result of the Fleming Commission in 1949. It was recognized that when staff members left the United Nations they incurred extra expenditures. How the grant was to be calculated is important for our purposes. It was to be determined by the Consultative Committee on Administrative Questions (CCAQ) which, inter alia, stipulated that one qualifying year with respect to the repatriation grant should be lost for each 6-month period of duty service in the home country (emphasis added). Hence, if one worked in one's home country, one would not qualify for the grant and in fact would lose qualifying time. Consistent with the above, the location of the duty station is the determining factor in calculating the repatriation grant. IX. As noted in Rigoulet, already in 1969, the Chief of Personnel of the World Meteorological Organization (WMO), responding to a staff organization memorandum on whether French Nationals residing in the French zone were entitled to the repatriation grant, stated: " 'In the case of ITU, whose Staff Rules are virtually identical to those of the United Nations on this point, home leave is nevertheless granted to French nationals who were recruited outside the local radius, even when they reside in the area adjacent to Geneva'. In recommending this solution, the Chief of Personnel added: 'This solution has the advantage of settling the question of payment of the repatriation grant, which according to WMO staff rule 194.1, is payable to staff members having served for a number of years "away from [their] home country'..." The home country is defined as: ... the country of home leave entitlement'." (Cf. Rigoulet, dissenting opinion by Mr. Roger Pinto, paragraph VI.) The Chief of Personnel then recommended the adoption of such a position for the WMO, declaring it to be "logical and fair". X. As further noted in Rigoulet, in 1974, the CCAQ, which was also called upon to make a determination concerning the repatriation grant, discussed this point in a report of 18 December 1974. It stated: " ' 14. ... what must be determining is the place of duty and to get into questions of where a staff member actually resides in the Geneva area can only lead to endless paradoxes. For example, it

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would be totally unrealistic to make a distinction between those who reside in Ferney (within the radius defined as Geneva) and those who reside in Thonon (from which hundreds of French commute daily to Geneva). A practical consideration is the fact that Geneva has virtually no hinterland and increasingly the surrounding French territory will become the bedroom of this city.' " (Cf. Rigoulet, dissenting opinion, paragraph VIII.) The CCAQ therefore concluded that, in authorizing the repatriation grant, the simplest rule was to make determinations based on the duty station, provided that the staff member in question was originally recruited from outside the local area adjacent to Geneva. This situation applies to both the Applicants in this case. XI. The conclusion that the determining factor was the country of the duty station was affirmed once again by the Chairman of CCAQ during the 38th session of the International Civil Service Commission, when he recalled that the conditions of service of the common system were established, inter alia, on the premise that entitlements were based on the staff duty station. This condition applied not only to repatriation but also to other conditions of employment such as hardship and mobility (paragraph 139, 38th session). XII. Therefore, the true intention of the United Nations in drafting these staff rules was to provide staff members payment for relocation expenditures; the point of departure was the country of the duty station. Upon moving to Paris, both Applicants incurred relocation expenditures. By denying them the repatriation grant based on its interpretation of staff rule 109.5(i), the Organization is thwarting the object of these rules. XIII. The Respondent claims that his position is justified by the "straightforward application" of staff rule 109.5(i). He suggests that this provision concerns staff members who perform official duties in a country other than their home country, while residing in their home country. However, in the Tribunal's view, such a literal application of a rule is possible only if the rule itself is clear and unambiguous. The language that: "No payments shall be made to... any staff member... while performing official duties" must be read as referring to staff members who perform official duties in their home country (emphasis added). On that basis, the grant may be refused, as the staff members both perform official duties and reside in their home country. XIV. Furthermore, the Respondent's interpretation is inconsistent with the reading of Annex IV to the Staff Regulations which stipulates in part that "staff members shall be entitled to a repatriation grant only upon relocation outside the country of the duty station." XV. The Tribunal's view is that relocation and the consequent payment of the repatriation grant are contingent upon the location of the

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duty station and not the location of the staff member's residence. A person remaining in the country of the duty station is not entitled to the repatriation grant. Therefore, it is logical that staff members who relocate to a country outside the duty station are entitled to the repatriation grant. Both Applicants in question have relocated to Paris, France. XVI. It is clear that the language of staff rule 109.5(i) could be subject to two interpretations. The Tribunal believes that it should reject the interpretation leading to an unreasonable result and adopt the interpretation leading to a reasonable and just result (the interpretation that was adopted by Mr. Roger Pinto in his dissenting opinion in the Rigoulet judgement). An intention to produce an unreasonable or unjust result is not to be imputed if another construction is available, leading to a just result. (Maxwell, supra pp. 199,203, 208.) XVII. This premise appears to have been recognized and adopted by almost all the international organizations based in Geneva whose staff rules contain similar provisions. These international organizations who operate within the ambit of the common system of the United Nations, do in fact pay the repatriation grant to all French staff members serving in Geneva and residing in the adjacent French territory upon their relocation to another part of France. The principle of equality of treatment applies here. Only the United Nations and the GATT apply a different policy and refuse entitlement in these cases. XVIII. The Tribunal agrees with the Applicants' contention that the UN's and the GATT's policy amounts to discrimination, thereby violating a fundamental principle of equality. The denial of the repatriation grant constitutes a dual discrimination on the basis of nationality and of the place of residence, which in the Tribunal's view is not justified. XIX. Regarding the principle of stare decisis, the Tribunal is not convinced that it cannot reverse one of its own previous findings. Indeed, there are many jurisdictions in which courts can, and do, reverse their previous decisions. Save for UN and GATT, this decision of the Tribunal is consistent with the policy of most international organizations in Geneva. XX. The Tribunal therefore concludes that both Applicants are entitled to the repatriation grant and orders the payment of the repatriation grant to both Applicants. XXI. Indeed, in any review of the relevant rules by the Administration, it might be worthwhile if the Administration were to effect a change reflecting the distance involved in the relocation from one place to another. This kind of consideration deserves greater prominence than whether or not the relocation involves the crossing of a national border. XXII. For the foregoing reasons, the Tribunal orders the Respondent to pay to the Applicant Kremer and the Applicant Gourdon the repa-

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triation grant due under staff rule 109.5 and Annex IV to the Staff Regulations. (Signatures) Francis SPAIN

R. Maria VICIEN-MILBURN

Member

Executive Secretary

Mayer GABAY Member Geneva, 21 July 1994

DISSENTING OPINION by Mr. SAMAR SEN With much distaste, but with utter conviction, I differ both on the law and on the facts from the majority decision. I. Background (a) The problem which the Tribunal has faced in the two applications brought before it by Messrs Kremer and Gourdon has a long history. There are important, complicated and other geographical reasons for it, but the plain fact is that the organizations in the UN family (which includes all the Specialized Agencies) follow different rules in the matter of awarding the repatriation grant to staff members. The International Civil Service Commission (ICSC) has been expected for the last few years to suggest uniform rules on the subject, but has not yet done so. (b) An extract from the 1993 Report of the ICSC (A/48/30) is reproduced below: "The Commission decided to report to the Assembly that it had examined the practices of the organizations in that regard [and] that: (a) The practices followed were consistent with the provisions of the staff rules and regulations as adopted by the governing bodies of the organizations concerned; (b) Harmonization of practice would require the revision of either the Staff Rules and Regulations of either the specialized agencies headquartered at Geneva or of the relevant portions of the United Nations Staff Rules and Regulations; (c) The choice between harmonizing around current United Nations or specialized agency practices would appear to be a policy choice rather than a technical one;

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(d) Should the General Assembly wish the Commission to study the matter further, it could do so on the basis of any decision the Assembly might take as regards (c) above." The General Assembly took note of this report in 1993, and sent it back to the ICSC for further study. The extract given above was preceded by a paragraph summarizing the discussion in the ICSC. The present judgement chooses to ignore all this, although the ICSC is the organ responsible for harmonization of all regulations and rules affecting staff of the common system. (c) Similarly, on the plea of interpreting some rules—which indeed have been examined with care and in detail in the past—the judgement seeks to solve the problem in a particular way, before the General Assembly, or even the ICSC, have indicated which way the UN System should move. It is still for the General Assembly to decide whether harmonization is desired, and if so, by what methods uniformity is to be achieved. The present judgement preempts the General Assembly from exercising its option and in reality prescribes how uniformity is to come about. This is hardly justified. II. Interpretation (a) In coming to its conclusion, the majority view depends heavily on what it considers to be the correct and proper interpretation of staff rules 109.5(i) and (d), together with Annex IV to the Staff Regulations. I agree that, in interpreting and in construing specific provisions of Staff Rules and Regulations, the Tribunal should not only take into account the actual texts, but all other provisions which might affect their meaning and application. Indeed, this method was followed on the last occasion the Tribunal considered this question. (Cf. Judgement No. 408, Rigoulet (1987).) Its analysis then covered a wider and more comprehensive field. It is also to be noted that under the heading "United Nations common system of salaries, allowances and benefits" published in April 1987, by the ICSC, the following sentence occurs: "The amount of the grant varies with family status and with length of service outside the home country up to the maxima shown in annex XL" And in annex XI, the first column reads, "Years of continuous service away from home country". (b) The majority judgement attaches considerable importance to the words "while performing official duties" in staff rule 109.5(i). It holds that the inclusion of these words indicates that if a staff member works at Geneva and resides in a border region of France, he or she is essentially in a different situation from a staff member who lives in France and works in France. In my view, such an interpretation is both strained and stilted. The dictionary and common sense meaning of the words "performing official duties" would apply to such official UN duties wherever they happen to

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be—in the staff members' home country or anywhere else. The interpretation now given in the judgement would mean in fact, that the "superfluous" words were included only to protect and promote the interests of staff members of French nationality who resided in France and worked at Geneva.2 It is well known that there are no other instances where staff members live in their own country and work in some other country. The interpretation given now credits the framers of this rule with extraordinary prescience to foresee and provide for such (exceptional) eventualities we are dealing with. A view like this is far-fetched and the interpretation runs counter to interpretatio talis in ambiguis semper fienda est ut evitetur inconveniens et absurdum. Besides, it is against the legislative history of these rules and regulations. (c) In order to support its interpretation, the judgement refers to the Fleming Commission in 1949, but its references are selective. This Commission, as did subsequent discussions on the subject, establish beyond all doubt that the repatriation grant—the only grant we are concerned with at the moment—is given to persons living and working in places outside their country. The justification for such a grant has always been that it is disadvantageous to live away from one's own country and so, such a situation deserves recompense. This also explains why provision exists that where a staff member serves from time to time both in his or her own country and also in some other country, the staff member becomes entitled to some grant, at the discretion of the Administration, to cover "moving house" and other expenses involved in a transfer from one country to another. Obviously the amount of the grant will depend on a number of factors. (d) The issue is befuddled with reference to the Consultative Committee on Administrative and Budgetary Questions (CCAQ), and the practice of some specialized agencies, such as WMO, ITU and some other organizations. The CCAQ is without any legislative authority and whatever actions it may recommend must fit in with the legislative requirements of each constituent organization represented in the CCAQ. Indeed, the minutes of the CCAQ show that at least one of the participants stated that "Geneva is a foyer of France". If this view were to prevail, the Applicants would indeed be considered as working in France, but the implication and intention behind the statement were very differ2 At Geneva there are 5 Specialized Agencies: ITU (established in 1865), IMO (1873-then named International Meteorological Organization; WMO came formally into existence in 1950), ILO (1919), WHO (1945) and WIPO (1970). UN organizations at Geneva are: UN European Headquarters at Geneva (UNOG), UNHCR (1951), UNCTAD (1964), UN Institute of Disarmament and Research (UNDIR, 1980) and GATT, which has a slightly different legal status and created, together with the UN, the International Trade Centre (UNCTAD/GATT). They all belong to the UN family.

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ent: those who live in French border areas could be treated as living at Geneva! Similarly, the catchment area for recruitment adopted by some Geneva organizations has no relevance to the question of the repatriation grant. The introduction of these matters can only divert and confuse. Nonetheless the judgement cites, from time to time, CCAQ deliberation with approval, but omits to mention that what the Chairman of CCAQ said was identical with what the ICSC reported to the General Assembly (cf. Section I (b) of this dissent). This is followed by further views of the CCAQ as also of the UN representative. None of the questions raised by these organizations have figured in the judgement. In this context, we have to bear in mind that Specialized Agencies like WMO, ITU and some others, by definition, follow a different practice from that of the UN and that comparison with them is hardly applicable in interpreting UN Staff Rules and Regulations regarding the repatriation grant. If the UN wished to emulate their example, it could easily have introduced the relevant parts of their staffrules regarding the repatriation grant. It did not do so, although it was fully aware of the Rigoulet decision. (e) Staff rules 109.5(d), (i) and Annex IV to the Staff Regulations are unrelated to any consideration of nationality, but the judgement says that the UNOG's interpretation of rule 109.5(i) which uses the concept of "residence" as the condition for eligibility leads to "illogical and unfair conclusion for it does not take into account the other relevant provisions". Such a statement remains unexplained and invalid: it is the judgement's failure to take all the relevant factors into account that has led it to a truncated and predetermined interpretation. For instance, the concept of relocation has been introduced in the judgement, but not developed. Had it been examined fully, it would have been clear that: (a) where a person lives is decisive for the award of the repatriation grant, (b) the present interpretation taken together with the theory behind relocation (I emphasize the prefix re) would produce many strange anomalies. For instance, the Applicants would be entitled to the repatriation grant without having to move even an inch from the hamlets (Prevessin-Moens and Veigy-Foncenex) in which they were living, while another French staff member working in Paris with UNESCO would be denied such a grant, even if he or she were obliged to move out of Paris after retirement and to settle in some distant place in France, after perhaps incurring much expense in the process. Such examples could be multiplied. (f) Yet, the judgement says in paragraph XII that upon "moving to Paris both Applicants incurred relocation expenditures". This is both misleading and erroneous: under the interpretation given, the Applicants would have been entitled to the repatriation grant even if they had contin-

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ued to live where they were. Their "relocation" and expenditure had nothing to do with this grant. But once again, paragraph XV concludes that "both the Applicants in question have moved to Paris." This implies that their move to Paris has something to do with their entitlement to the repatriation grant: in fact, it is irrelevant. III. Discrimination (a) Discrimination could be established if any organization, in applying its Staff Regulations and Rules, treated different staff members in different ways. There is nothing, absolutely nothing, to show that the UN applied its regulations and rules for repatriation in this manner, and to speak of discrimination in this context is therefore irrelevant and misleading. (b) What has happened is that the Applicants have compared their conditions with what they could have enjoyed if they had worked in some other organizations. Such comparison is not permissible, because each staff member is governed by the Regulations and Rules applicable to him or her and which he or she accepted in full knowledge and consciousness. To compare one set of service conditions with another and then to conclude that for a particular individual, some rules somewhere would have been more beneficial is reductio ad absurdum. (c) However, since so much has been said about discrimination, it should be pointed out that French citizens, who are entitled to live in French border areas as a matter of right, enjoy many advantages which are not available to others: they live in their own country, among their own people, friends and family; their children go to national schools; the cost of living in these areas is lower compared to Geneva's and there are many other facilities. So, all the reasons for awarding the repatriation grant—i.e. the disadvantages attendant on someone working away from one's own country—disappear. In fact, the discrimination is in favour of, and not against, the French citizens living in the border areas of France and working in Geneva. There are some non-French staff members who are also allowed by the French authorities to live in the border areas and work at Geneva. As a rule, these selected few non-French people enjoy more privileges and amenities than their compatriots or colleagues living at Geneva, but they are not as well-favoured as the fortunate French. No one should begrudge the good luck, in varying degrees, of staff members so favourably placed; however, it is entirely a different matter if the repatriation grant were to be extended to a selected few in the United Nations system, while the rest of the UN staff could claim it only if they worked away from their home country. The UN Office at Geneva reports that out of its 65 professional and higher category staff, 59 live in France! Discrimination "should be made of sterner stuff."

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IV. Revision of a previous opinion It is tautology and needs no stare decisis to assert that the Tribunal can revise its own opinion, but in order to do so, there must be some new facts or new considerations, otherwise such a reversal becomes capricious. The Rigoulet case was decided only a few years ago and now, to revise it only on the ground that persons who decided Rigoulet are different from those deciding the present case, would not, in my view, be proper and can indeed expose the Tribunal to avoidable criticism. For instance, if another set of cases comes with the same or similar pleas before the Tribunal in the near future and a different interpretation is given by a new panel, the result can lead to chaos and confusion, and even ridiculous consequences. The Tribunal should certainly have the courage to change its earlier views, but such a change must be based on new facts or new considerations, or because a long passage of time had made earlier decisions otiose or because some obvious mistakes had been made. None of these justifications exist in this case. The judgement is grounded on ipse dixit. V. Broad considerations The Administrative Tribunal's mandate is based on a decision of the General Assembly and the Tribunal's decisions are to be governed entirely by its Statute. The ICSC has been specifically authorized to study, and is at present seized of the problem of the vexed "policy" question underlying the conflicting practices followed by the organizations in the UN family in awarding the repatriation grant. In view of all that is implied in the consideration of these cases, it would have been legally more defensible, in my view, to hold the line and maintain the status quo until some indication of the wishes of the General Assembly were made known, specifically, whether harmonization was desirable and feasible and if so, in what direction action should be taken by different units of the UN system. The best that can be said of this judgement is that it might prompt and provoke the ICSC and eventually the General Assembly to take speedy actions. But, that is not the job of the Administrative Tribunal. (Signatures) Samar SEN President Geneva, 21 July 1994

R. Maria VICIEN-MILBURN Executive Secretary

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Administrative Tribunal of the United Nations Judgement No. 657 (Original: English)

Case No. 687: Araim

Against: The Secretary-General of the United Nations

Application of a staff member of the United Nations for a finding that the Administrationfailed to give him full and fair consideration for a vacant post and continued to discriminate against him, and for compensation for the injury sustained. The Joint Appeals Board, on the Applicant's request for suspension of administrative action, found that the action had already taken place and that it was not possible to recommend its suspension.—On the merits the Board concluded that the Applicant should have been given an opportunity to apply for the vacant post and recommended that he should be given opportunity to apply for any vacant post at D-l level, as well as a payment of $7,500 as damages.—Recommendation rejected, with a decision to set up a panel to investigate the Applicant's claims of discrimination. Reminder of previous cases brought up by the Applicant, in particular Judgement No. 533.—The Tribunal finds no evidence of any discrimination against the Applicant.—It notes that the Applicant's claim, although mentioning two vacancies which might have been available to him, concerns in reality one vacancy, since one of them was filled by lateral transfer.—The Tribunal agrees that the lateral transfer of another staff member at the D-l level was within the Respondent's right and that the Applicant cannot challenge it.—With regard to the vacancy created by the lateral transfer, filled on a temporary basis by the appointment of a Soviet citizen, the Tribunal finds that the Respondent had decided in advance to give priority consideration to a Soviet citizen, to the exclusion of others, which constituted unfair treatment, as in Judgement No. 310 (Estabial).—The decision in question contradicted both the Tribunal's jurisprudence in that judgement and Personnel Directive PD/2/88 which provides that Special Assistants are to be recruited from among staff members (even if this is done on temporary basis only).—The Tribunal holds therefore that the Applicant was wrongly denied consideration for the D-l post of Special Assistant.—It finds also that that the Applicant's pleas and requests did not receive the attention which they deserved and that the Applicant was not fully protected, for which he is entitled to some compensation. Award of $2,000 as compensation.—The Tribunal also orders that the Applicant be considered fully and fairly for appropriate D-l vacancies.—All other pleas rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Jerome Ackerman, First Vice-President; Mr. Luis de Posadas Montero, Second Vice-President; Whereas, on 28 August 1992, Amer Salih Araim, a staff member of the United Nations, filed an application requesting the Tribunal, inter alia:

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"... to find that: 1. The Administration failed to advertise the posts of Chief of Council and Committee Services Section and of the Special Assistant to the Under-Secretary-General in the former Department of Political and Security Council Affairs (PSCA), as requested by General Assembly resolution 33/143, part I, paragraph l(a) of 20 December 1978. 2. The Administration has failed to observe staff regulation 4.4 by filling the post of the Special Assistant to the then Under-Secretary-General of PSCA with a diplomat from the then Permanent Mission of the Soviet Union, in violation of staff rule 4.4 and PD/2/88. 3. The Office of Human Resources Management (OHRM) has once again... [denied] him full and fair consideration for a D-l post. 4. OHRM failed to deal with the continuing discrimination [against him]... 5. To endorse the findings of the JAB [Joint Appeals Board] Panel... 6. To award the Applicant compensation equal to two years net base salary for the injury sustained ..." Whereas the Respondent filed his answer on 20 November 1992; Whereas the Applicant filed written observations on 12 January 1993; Whereas, on 21 June 1994, the Applicant submitted an additional statement; Whereas the facts in the case are as follows: The Applicant entered the service of the United Nations on 8 August 1978, on secondment from the Government of Iraq, on a three year fixed-term appointment, as a Political Affairs Officer at the P-4 level, in the Council and Committee Services Section, Security Council and Political Committees Division, Department of Political and Security Council Affairs (PSCA). On 1 June 1981, he was reassigned to the Committee Services and Research Branch of the Centre against Apartheid, within the same department. On 8 August 1981, after the Applicant's resignation from the service of his government, his appointment was extended for three years. On 1 April 1982, he was promoted to the P-5 level, as Senior Political Affairs Officer, and became Secretary of the ad hoc Committee on the Drafting of the International Convention against Apartheid in Sports and Deputy Secretary of the Special Committee against Apartheid. On 1 May 1984, he received a probationary appointment, which

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was converted to a permanent appointment on 1 January 1985. The Applicant has, since then, served as Secretary to various groups and committees, and as Deputy Secretary of the Special Committee against Apartheid. On 5 September 1991, Mr. Leonid Malyev, a national of the former USSR, who served as Chief of Council and Committee Services Section, died. On 21 October 1991, the Under-Secretary-General, PSCA, announced to the staff of his department that Mr. Evgeniy Gorkovskiy, also a national of the former USSR, who was serving in the same department as Special Assistant to the Under-Secretary-General, PSCA, at the D-l level, had been appointed Deputy Director of Security Council and Political Committees Division and Chief of Council and Committee Services Section, with effect from 18 October 1991. According to the records of the Joint Appeals Board (JAB) proceedings, the lateral transfer of Mr. Evgeniy Gorkovskiy to the post of Chief of Council and Committee Services Section was effected before the departmental announcement. The post of Special Assistant to the Under-Secretary-General, PSCA, vacated by the lateral transfer of Mr. Evgeniy Gorkovskiy, was filled on 30 October 1991, by the external recruitment of another citizen of the former USSR, Mr. Rollan Dzhikiya. He was given a four month fixed-term contract, expiring on 29 February 1992. On 8 November 1991, the Applicant requested the Secretary-General to review the administrative decision not to advertise the post of Deputy Director of the Security Council and Political Committees Division and Chief of Council and Committee Services Section and to fill it by the lateral transfer of Mr. Evgeniy Gorkovskiy. Not having received a reply from the Secretary-General, on 3 January 1992, the Applicant lodged an appeal with the JAB, requesting, under staff rule 111.2(f) "the Administration to take action on this post by annulling the above mentioned departmental instruction." On 23 January 1992, the JAB adopted its report on the request for suspension of action, which concluded as follows: "10. Since the action the Appellant requested be suspended had already been taken, it was not possible for the JAB to make a recommendation for suspension of action. 11. Accordingly, the Panel makes no recommendation in support of the Appellant's request under staff rule 111.2(f)." On 7 May 1992, the JAB adopted its report on the merits of the case and concluded, in part, as follows:

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"Conclusion 17. Although application for consideration for a post does not necessarily ensure that a staff member will be selected, denial of such opportunity must certainly extinguish any such expectation. The Administration's arguments do not negate the fact that when the post in question became available, as a result of the death of the incumbent, and taking into account past injustices for which the Appellant received damages and which the Administrative Tribunal expected the Respondent to try and correct, the Appellant should have been given an opportunity to apply for the post. 18. For the foregoing reasons the Panel recommends that: (a) Notwithstanding the restructuring of PSCA, the Appellant be afforded the opportunity to apply for whatever D-l level posts are currently available or may become available in the Department of Political Affairs; (b) That the Appellant be awarded $7,500 as damages for the new injury suffered." On 16 June 1992, the Assistant Secretary-General for Administration and Management transmitted to the Applicant a copy of the JAB report and informed him as follows: "The Secretary-General has re-examined your case in the light of the Board's report. He has noted that Judgement No. 533 calls for you to receive the same fair treatment as other staff members are entitled to. He is firmly committed to ensure that you will receive the full and fair consideration to which you are entitled for any vacant D-l post for which you are qualified. The Secretary-General wishes to re-affirm that, with respect to the post under appeal as well as with respect to any other post, programme managers have the delegated authority under staff regulation 1.2 to rotate or transfer staff laterally within their departments or offices, without prior consideration of each of the staff members at a lower level who might have relevant qualifications and experience. It is only after the appropriate lateral transfers have been made within the department or office that unfilled posts are considered vacant and may be advertised under the applicable procedures, if the decision is made to fill them. As the D-l post subject to appeal was filled laterally within the department, it never became a vacant post for which staff members at the P-5 level would have had the right to be considered. The Secretary-General, therefore, is unable to agree with the Board's conclusion that your rights were violated because you were not consid-

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ered for the post, and he must reject the Board's recommendations since they are based on that conclusion. The Secretary-General, however, is deeply concerned by your perception that you have been and continue to be the victim of discrimination in the Organization. He has decided to constitute a panel which will investigate your claims." On 28 August 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Administration failed to advertise the post of Chief of Council and Committee Services Section, as required by General Assembly resolution 33/143 of December 1978. 2. Internal staff were not considered for the filling of the post of Special Assistant to the Under-Secretary-General, PSCA, even though, for a short temporary period, someone else filled that post. 3. The Administration has failed to deal with the continuing discrimination to which the Applicant is subjected. Whereas the Respondent's principal contentions are: 1. Programme managers have authority to rotate or transfer staff laterally within their departments or offices. The Applicant's rights were not violated by the lateral transfer of another staff member. 2. The fact that a post is not filled pending a restructuring of the Secretariat does not violate the Applicant's rights. The Tribunal, having deliberated from 21 June to 22 July 1994, now pronounces the following judgement: I. In the several cases brought by the Applicant before the Tribunal three recurrent themes are prominent: (a) He was allegedly denied promotion through the filling of vacancies without advertising them, contrary to the requirements of the relevant Staff Rules or General Assembly resolutions; (b) The Applicant was allegedly never given full and fair consideration for vacancies that occurred from time to time, in spite of the Respondent's assurance that he would do so, following the recommendations of the JAB on different occasions and the Tribunal's Judgement No. 533; and (c) The Applicant, along with some others, were allegedly subject to discrimination because of their ethnic origin. The first two issues are closely related. II. As regards the allegation of discrimination, the Respondent claims that, in the present case, this issue was not before the JAB and is therefore not within the purview of the Tribunal under article 7 of its Stat-

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ute. The Tribunal notes, however, that the question of discrimination was earlier discussed at length. Whatever might be the feeling and perception of the Applicant on this matter, the Tribunal has not found specific evidence of any discrimination against him. The Applicant may feel that he has been, in one way or another, a victim of discrimination, since the Persian Gulf War. However, he has provided no proof of such discrimination. III. The Applicant's specific complaints in the present case are (1) that when Mr. Malyev (a citizen of the former USSR), the incumbent of the D-l post of Chief of Council and Committee Services Section died, the Respondent denied the Applicant an opportunity to be considered for the vacant post by filling it through the lateral transfer of another Soviet staff member who was then serving as Special Assistant to the Under-Secretary-General, Department of Political and Security Council Affairs, and (2) that the Respondent, by filling through external recruitment the Special Assistant post thus vacated, denied the Applicant an opportunity to be considered for it. The Tribunal notes that although the claims relate to two posts, in reality only one vacancy might have been available to be filled by the Applicant. If the Deputy Director post had not been filled by lateral transfer of the Special Assistant, the Special Assistant post would not have become vacant. It was only because of the lateral transfer that the Special Assistant post was open. IV. The Respondent claims that under the prevailing Vacancy Management System, the lateral transfer of a staff member at the D-l level was within the discretion of the Under-Secretary-General in charge of the department. The Tribunal does not question this right, which is provided for in administrative instruction ST/AI/338. The Applicant, however, was not at the D-l level. He was at the P-5 level and therefore was not eligible for a lateral transfer to the D-l post. As it was not contemplated, at that time, that the D-1 Deputy Director post was to be, in the circumstances, filled by a promotion, the Tribunal does not consider that the Applicant has standing to challenge the lateral transfer, and the Tribunal need not consider the merits of this issue further. V. The Tribunal notes further that the Special Assistant vacancy, resulting from the lateral transfer, was temporarily filled for a brief four-month period by a citizen of the former USSR, who was then a member of the Permanent Mission of the USSR to the United Nations. Although subsequently, the latter post was redesignated and filled by staff members of other nationalities, the Tribunal finds, from the absence of any substantial reason for external recruitment and a pattern of filling certain posts in the department, that the Respondent had decided in advance to give priority consideration to a Soviet citizen to the exclusion of others. The Tribunal was faced with a somewhat similar situation in Judgement

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No.310, Estabial (1983) and held that this constituted unfair treatment in that the Applicant did not receive the consideration to which he was entitled for the vacancy. VI. With respect to the filling of the vacancy of the Special Assistant post, not only is the Tribunal's jurisprudence in Estabial applicable for the reasons indicated above, but the Applicant was also entitled to be considered for the post under PD/2/88, paragraph 2, which provides that "Special Assistants will be selected from among staff members", not by external recruitment. The Tribunal finds, as noted above, that the filling of the Special Assistant post by an external candidate, who was a Soviet citizen, stemmed predominantly from a determination to accord preferential treatment to a Soviet citizen, which is in conflict with the Tribunal's jurisprudence in Estabial. VII. The only explanation given was that the four-month period "coincides with the current... term of all Under-Secretaries-General, including myself: . . .the appointment of a new Secretary-General (expected in January 1992) may give rise to certain changes in his cabinet of senior officials. In the light of this probability, I considered it appropriate that the selection of a candidate for the post should be postponed." This explanation, although understandable, is not acceptable as it does not state why this temporary appointment had to go to a citizen of the former USSR. In addition, as noted above, the failure to advertise the post and fill it, even temporarily, with a staff member was in violation of Personnel Directive PD/2/88, paragraph 2. VIII. The Tribunal holds, therefore, that the Applicant was wrongly denied the opportunity to be considered for the D-l post of Special Assistant, and that the responsibility of the Organization is thus engaged. The Tribunal finds no merit in the Respondent's contention, in a parallel case, that Personnel Directive PD/2/88 is inapplicable to short-term temporary appointments. The unambiguous language of the provision contains no such qualification. IX. The Tribunal also finds that while many of the arguments made by the Applicant to the Respondent are repetitious, it would have been more satisfactory if his letters had been attended to in a proper and timely manner by the Administration. Many of the letters addressed by the Applicant to various administrative officials were not answered at all or were disposed of in a dilatory, if not cavalier, way. The filling of the posts was apparently decided upon in a manner that lent an air of casualness which could and should have been avoided. The Tribunal is left with the impression that the Applicant's pleas and requests were lightly dismissed and not given the attention which they deserved. X. The Tribunal concludes that in the procedure and the process followed in this case, the interests of the Applicant were not fully pro-

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tected and he is therefore entitled to some compensation. However, the Tribunal also considers that, in the circumstances of this case, which, as noted above, actually involved one vacancy, there was, without doubt, a possibility that the number of D-l posts would be reduced in the reorganized department and, accordingly, the chances of the Applicant to obtain a promotion would be reduced, even if he were found to be qualified for such an advancement. Also, as a practical matter, the Tribunal realizes that there is some justification for temporarily filling a post for four months without any vacancy announcement. The Tribunal recalls that the Applicant is entitled to consideration for promotion to any vacant post for which he applies and is qualified. XI. In view of the considerations set forth above, the Tribunal orders that: 1. The Respondent pay to the Applicant the amount of US$ 2,000.00; 2. The Applicant be considered fully and fairly for any D-l post that may become vacant for which he applies and is found to be qualified; 3. All other pleas of the Applicant are rejected.

(Signatures) Samar SEN President

Jerome ACKERMAN First Vice-President

Luis de POSADAS MONTERO

R. Maria VICIEN-MILBURN

Second Vice-President

Executive Secretary

Geneva, 22 July 1994

Judgement No. 658 (Original: English) Case No. 727: Araim

Against: The Secretary-General of the United Nations

Application of a staff member of the United Nations for a finding that the Administration violated his rights to receive full and fair consideration for a vacant post, to order the Secretary-General to stop discrimination against him, and for compensation for the injury sustained.

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The Joint Appeals Board recommended suspension of administrative action of temporary appointment of an outside candidate for the vacant post.—Recommendation rejected as the action had already taken place.—On the merits the Board concluded that the action to fill the post by another person had not been vitiated and trusted that the Applicant would receive full and fair consideration when the vacancy is announced.—On a further appeal against the decision to renew the appointment of the other person on a month-to-month basis the Board concluded that this was within the discretionary power of the Secretary-General. Reminder of previous cases brought up by the Applicant.—Applicant's claim that, since the initial appointment of the other person to the vacant post was illegal ab initio, the extensions were also illegal.—The Tribunal notes that the appointment, extensions and termination of that person were known to the Tribunal when it rendered its Judgement No. 622 and were taken into account in awarding compensation to the Applicant.—The Tribunal examines whether the Applicant produced any new and convincing evidence.—It finds no substance in the Applicant's allegations that the Respondent acted to frustrate any prospects of promotion for him, that the Respondent was pursuing a vendetta against him and that he was victimized because of his ethnic origin or other factors.—Applicant's contention that in the Committee on Applications for Review of the Administrative Tribunal Judgements some members did not press the Applicant's case because of an alleged commitment in his favour by the Secretary of the Committee.—The Tribunal cannot and will not comment on how or why members vote in committees. Application rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Jerome Ackerman, First Vice-President; Mr. Luis de Posadas Montero, Second Vice-President; Whereas, on 10 May 1993, Amer Salih Araim, a staff member of the United Nations, filed an application requesting the Tribunal, inter alia: "... to find that: 2. ... the Office of Human Resources Management (OHRM) violated his rights by ignoring the reports of the Panel on Discrimination and Other Grievances dated 1 July 1991, and 1 October 1992,... 3. ... that the Administration violated [his] rights to receive the full and fair consideration for the vacant relocated D-l post which was occupied by the Secretary of the Special Committee against Apartheid as well as other vacant D-l posts in the Secretariat... 4. To order the Secretary-General to submit to the Tribunal a copy of the tapes (or their transcripts) of the two meetings of the Committee on Applications for Review of Administrative Tribunal Judgements held on 1 April 1992,... 5. To order the Secretary-General to take action immediately to end the discrimination to which the Applicant has been subjected

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due to his national origin, to give full and fair consideration to the Applicant's candidature for the relocated D-l post of Secretary of the Special Committee against Apartheid as well as other D-l posts ... 6. To award the Applicant compensation equal to two years base salary for the injury sustained by him ..." Whereas the Respondent filed his answer on 24 November 1993; Whereas, on 21 June 1994, the Applicant submitted an additional document; Whereas the facts in the case are as follows: The Applicant entered the service of the United Nations on 8 August 1978, on secondment from the Government of Iraq, on a three year fixed-term appointment, as a Political Affairs Officer at the P-4 level, in the Council and Committee Services Section, Security Council and Political Committees Division, Department of Political and Security Council Affairs. On 1 June 1981, he was reassigned to the Committee Services and Research Branch of the Centre against Apartheid, within the same department. On 8 August 1981, after the Applicant's resignation from the service of his government, his appointment was extended for three years. On 1 April 1982, he was promoted to the P-5 level, as Senior Political Affairs Officer, and became Secretary of the ad hoc Committee on the Drafting of the International Convention against Apartheid in Sports and Deputy Secretary of the Special Committee against Apartheid. On 1 May 1984, he received a probationary appointment, which was converted to a permanent appointment on 1 January 1985. In June 1991, the Secretary of the Special Committee against Apartheid died and the Applicant was appointed Acting Secretary. On 14 August 1991, the Applicant wrote to the Assistant Secretary-General, Office of Human Resources Management (OHRM), expressing an interest in the post. He stated that, in view of his previous experience, the recommendations of the Joint Appeals Board (JAB) and of the Panel on Discrimination and Other Grievances (the Panel on Discrimination) in a prior case, he assumed his candidacy would be taken into account when the post of Secretary of the Special Committee Against Apartheid was to be filled. He further assumed that the post would be advertised soon. In a memorandum dated 21 August 1991, the Assistant SecretaryGeneral, Committee Against Apartheid (CAA), requested the Assistant Secretary-General, OHRM, to appoint Mr. Tesfaye Tadesse, former Permanent Representative of Ethiopia to the United Nations, temporarily, to the vacant post of Director, Office of the Assistant Secretary-General and as Secretary of the Special Committee against Apartheid, for seven months. He specified the post requirements, which involved "extensive consultations within and outside the United Nations" and necessitated a

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profound understanding of developments both in South Africa and in the outside world". This "sensitive political role" made it imperative that the incumbent possess "highly developed diplomatic skills and judgement". He added, "I believe that given the possible changes that the upper echelons of the Secretariat would undergo by the end of February 1992—changes that might affect also the head of the Centre—it is more appropriate at this stage to fill this post on a temporary basis and allow myself or my successor to make a permanent appointment through the vacancy management process sometime early next year." In a memorandum dated 3 September 1991, the Assistant Secretary-General, CAA, announced that Mr. Tesfaye Tadesse had been appointed as the Director of the Office of the Assistant Secretary-General and Secretary of the Special Committee against Apartheid. On 18 September 1991, the Applicant requested the Secretary-General to suspend the decision. Not having received a reply, the Applicant lodged an appeal with the JAB on 18 October 1991, requesting, under staff rule 111.2(f), that the filling of this vacancy through temporary assignment be suspended until the Applicant's appeal was decided. On 31 October 1991, the JAB adopted its report, which recommended: ". . . that any action to fill the post in question be suspended until 28 February 1992 or until the Panel submits its recommendation on the substance of the appeal, if earlier. This in no way, however, precludes following the normal procedures for advertising the vacancy." In a letter dated 7 November 1991, the Director, Office of the Under-Secretary-General for Administration and Management, informed the Applicant as follows: "The Secretary-General has examined your request for suspension of action in the light of the Board's report. The decision to fill the post temporarily through the appointment of Mr. Tadesse became effective on 3 September 1991. Such decision cannot therefore be stayed. The Secretary-General has decided therefore that your request cannot be accepted." In its report on the merits of the case dated 29 January 1992, the JAB: "16. ... noted that the Appellant did not bring sufficient evidence nor did he reveal any facts indicating that the Secretary-General's decision to fill the post in question with an external candidate was made in bad faith or was motivated by prejudice or any other extraneous factors. 19. ... trusts that when the vacancy announcement is issued, the Appellant will receive the full and fair consideration to which he is entitled and that the Administration will act in a fair manner re-

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garding the vacancy circulation announcement and the selection process." On 3 February 1992, the Director, Office of the Under-SecretaryGeneral for Administration and Management, informed the Applicant that the Secretary-General had re-examined the case in the light of the JAB report and had decided to maintain his decision. He added, "[The Secretary-General] wishes to confirm that you should be considered, in accordance with staff rule 104.14(f)(iii) and the relevant provisions of administrative instruction ST/AI/373, for current and foreseeable vacancies in your department, including the vacancy which will arise in respect of the post which was the subject of your appeal." On 2 March 1992, the Applicant filed with the Tribunal an application contesting this decision. In its Judgement No. 622, the Tribunal held that the Applicant was entitled to compensation for the injury sustained "by the unjustified procedure in this case [of not advertising the post] which deprived him (as well as other potential applicants), of the opportunity to be considered on the basis of comparative qualifications for the post." (Cf. Judgement No. 622, Araim (1993), paragraph VIII.) On 8 June 1992, the Applicant requested a review of the decision by the Secretary-General to extend Mr. Tadesse's appointment on a monthly basis. Mr. Tadesse was separated from the service of the United Nations on 21 July 1992. Not having received a reply to his request for administrative review, on 29 July 1992, the Applicant lodged a second appeal with the JAB. The JAB adopted its report on 2 February 1993. Its considerations and recommendation read, in part, as follows: "Considerations and recommendation 24. The Panel considered that the decision to extend Mr. Tadesse's appointment on a month-to-month basis was within the discretionary power of the Secretary-General. ... 26. The Panel trusts that when the selection for the post in question eventually proceeds, the Administration will act fairly regarding the selection of a candidate, and that the Appellant will receive the full and fair consideration to which he is entitled. The Panel also trusts that everyone concerned will be informed of that recommendation. 27. The Panel makes no other recommendation in support of the appeal."

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On 5 April 1993, the Under-Secretary-General for Administration and Management transmitted to the Applicant a copy of the JAB report and informed him as follows: "The Secretary-General . . . agrees with the Board's recommendation and wishes to confirm that you will receive full and fair consideration for current and foreseeable vacancies including the post that was the subject of your appeal". On 10 May 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Respondent failed to advertise the post, in violation of General Assembly resolution 33/143 and administrative instruction ST/AI/338. Mr. Tadesse's appointment was thus illegal. 2. Alleged promises cited by the Secretary of the Committee on Applications for Review of Administrative Tribunal Judgements, to the effect that the Applicant would be given fair and full consideration for a D-l post as soon as possible, influenced the voting of Member States of the Committee against requesting an advisory opinion from the International Court of Justice. 3. The Applicant was subjected to discrimination, as was confirmed by the Panel on Discrimination in reports adopted on 1 July and 1 October 1991. Whereas the Respondent's principal contentions are: 1. The initial appointment of Mr. Tadesse did not violate the Applicant's rights, nor did the subsequent extensions. 2. The Applicant was entitled to, and indeed received, full and fair consideration of his candidacy. 3. Allegations of discrimination on grounds of national origin have been investigated and were found to be unsubstantiated. Appeals against that decision are not properly before the Tribunal. The Tribunal, having deliberated from 21 June to 22 July 1994, now pronounces the following judgement: I. In a series of cases filed by the Applicant before the Tribunal, certain features are common, although the emphasis put on them has varied from time to time. In the present case, the elements which have been highlighted are: first, the charge that the Respondent has followed a systematic and malicious course of action in order to deny the right of the Applicant to "full and fair" consideration for promotion; second, and related to the first, is the contention that the Respondent carried on a campaign of reprisal against the Applicant because of the numerous cases he has brought against the Administration. Finally, the Applicant finds fault

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with the JAB for not examining his pleas properly (especially for the production of records of the confidential discussions of the Committee on Applications for Review of Administrative Tribunal Judgements) and for ignoring the findings of the Panel on Discrimination and Other Grievances. II. All the above factors are mentioned and elaborated by the Applicant to sustain his main contention that, as Mr. Tesfaye Tadesse's first appointment as Secretary of the Special Committee Against Apartheid was illegal ab initio, the extensions given to him from month to month for four months were also illegal. As Mr. Tadesse's continuation prevented the Applicant from being considered for this post, he claims he is entitled to relief or compensation. III. Mr. Tadesse's appointment, extension and final separation covered the period from 3 September 1991 to 21 July 1992. Inasmuch as the Tribunal's Judgement No. 622 was rendered on 12 November 1993, the Tribunal had knowledge of Mr. Tadesse's extensions. In awarding compensation to the Applicant in this judgement, the Tribunal had taken them into account, as well as the Respondent's justification for them. IV. Given this background, the Tribunal has to examine whether the Applicant has now produced any new and convincing evidence to add to the consideration the Tribunal had already given to his pleas. V. The Applicant contends that the Respondent has acted to frustrate any prospects of promotion for the Applicant. He states that by transferring the D-l post originally attached to the Centre Against Apartheid, and placing it at the disposal of the newly restructured Department of Political Affairs, the intention of the Respondent was to deny yet another opportunity for promotion to the Applicant. The Tribunal finds no substance in this allegation, and is satisfied that the large-scale reorganization which the Secretary-General decided to introduce was based on broad and changing needs of the United Nations and was not in any way influenced by considerations of the Applicant's advancement. Nor has the Tribunal been given any evidence that the Respondent was pursuing a vendetta against the Applicant. Such an allegation is negated totally by the letter which the Assistant Secretary-General for Human Resources Management sent on 5 August 1992, to the Chairperson of the Appointment and Promotion Board. This letter emphasizes and details the various assurances given to the Applicant for "full and fair" consideration. VI. It seems to the Tribunal that, in large measure, the Applicant's conclusion is based on what he considers discriminatory treatment referred to in the reports of the Panel on Discrimination and other Grievances. The Tribunal notes that these reports were reviewed later and at great length by persons especially appointed by the Secretary-General to examine "Allegations of Discrimination by Mr. Amer Araim", and they

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produced a substantial report. The Applicant was involved in this review and irrespective of his reaction, the Tribunal finds nothing to support the view that the Applicant was victimized because of his ethnic origin or other factors. VII. There remains therefore only one other principal contention of the Applicant, i.e. that in the Committee on Applications for Review of Administrative Tribunal Judgements, some members of the Committee did not press the Applicant's case because of an alleged commitment in his favour made by the Secretary of the Committee, on behalf of the Secretary-General. The Tribunal cannot and will not comment on how or why members vote in committees and similar bodies, and notes that the record of the Committee at the time of the voting shows no commitment on the part of the Respondent that the Applicant would be promoted. VIII. In view of the above, the Tribunal rejects the application. (Signatures) Samar SEN President

Jerome ACKERMAN First Vice-President

Luis de POSADAS MONTERO

R. Maria VlCIEN-MlLBURN

Second Vice-President

Executive Secretary

Geneva, 22 July 1994

Judgement No. 659 (Original: English) Case No. 697: Al-Atraqchi

Against:

The Secretary-General of the United Nations

Application of a former staff member of the United Nations for a finding that his candidature for a vacant post was not given full and fair consideration, for an end to discrimination against him, and for compensation for violation of his rights. The Joint Appeals Board concluded that the Applicant's right to consideration had been violated and recommended that he should be given consideration fully and fairly for future vacancies, as well as a payment of a compensation of $1,000.—Recommendation accepted, without fully accepting the Board's reasoning. Consideration of the circumstances of the case: a vacancy created through a lateral transfer of another staff member at the D-l level was filled on a temporary basis by the appointment of a Soviet citizen, in contradiction with Personnel Directive PD/2/88 which provides that Special Assistants are to be recruited from among staff members.—The Tribunal holds that the responsibility of the Administration is engaged in this case, for the reasons set

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forth in Judgement No. 657 (Araim), relevant extracts from which are reproduced in the present judgement.—The Applicant is entitled to a compensation not only on the ground that PD/2/88 was not observed (which was the basis of the Joint Appeals Board recommendation) but also because of the improper selection on a temporary basis for the vacant post.—With regard to the Applicant s claims of discrimination, the Tribunal notes that he refused to participate in a proposed investigation; his claim is therefore without merit. Award of $2,000 as compensation, in addition to the amount already awarded.—All other pleas rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, First Vice-President, presiding; Mr. Luis de Posadas Montero, Second Vice-President; Mr. Mikuin Leliel Balanda; Whereas at the request of Mohammed Ali Al-Atraqchi, a former staff member of the United Nations, the President of the Tribunal, with the agreement of the Respondent, extended to 28 October 1992 the time-limit for the filing of an application to the Tribunal; Whereas, on 8 October 1992, the Applicant filed an application requesting the Tribunal, inter alia: "... to find that: (a) The Applicant's candidacy to [the] post of Special Assistant to the Under-Secretary-General for Political and Security Council Affairs [PSCA] was not given the 'fullest regard nor adequate consideration in a reasonable manner...'; (b) The decision not to advertise the subject post constitutes a deliberate violation of relevant Staff Rules and Regulations, [and] General Assembly resolution No. 33/143 . . . (d) [The appointment violated personnel directive PD/2/88, and] (e) [General Assembly resolution 35/210 of 17 December 1990] (f) [As well as] the principle that no post is reserved to any nationality... (g) [That] while the Panel on Discrimination and Other Grievances, in its memorandum dated 1 July 1991 to... [the] Assistant Secretary-General, OHRM [Office of Human Resources Management], recommended that 'the Administration should investigate and properly deal with the very subtle form of discrimination which seems to have prevailed in the [relevant] Department', this has not been done;

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and, accordingly to order that: (a) The contested decision be annulled; (b) The subject post be advertised; (c) The Applicant's candidature to a D-l post be considered fully and fairly in accordance with the Staff Rules and Regulations and in conformity with due process; (d) An end be put to the ongoing discrimination against the Applicant by the former Department of PSCA; (e) That the Applicant be paid an amount equivalent to two years net salary in compensation for the unending series of violations of his right to be considered for a promotion and the clear hostility of PSCA towards him." Whereas the Respondent filed his answer on 11 December 1992; Whereas on 12 March 1993, the Applicant submitted an additional statement; Whereas the Applicant filed written observations on 19 March 1993; Whereas, on 23 June and 1 July 1994, the Tribunal put questions to the Respondent, to which he provided answers on 28 June, 1 and 7 July 1994; Whereas the facts in the case are as follows: The Applicant entered the service of the United Nations on 7 October 1967, under a probationary appointment at the P-2 level, as an Associate Statistician, with the Statistical Office of the Department of Economic and Social Affairs. On 1 October 1969, his appointment was converted to a permanent appointment, and on 1 June 1970, he was promoted to the P-3 level as a Statistician. On 1 September 1973, the Applicant was transferred to the Council and Committee Services Section, Security Council and Political Committees Division, Department of Political and Security Council Affairs (PSCA), as an Economic Affairs Officer. On 1 April 1974, he was promoted to the P-4 level and on 1 July 1979, to the P-5 level, as a Senior Political Affairs Officer. The Applicant separated from the service of the United Nations on 31 July 1993, having reached the mandatory retirement age. On 5 September 1991, Mr. Leonid Malyev, a national of the former USSR, who encumbered the D-l level post of Deputy Director of the Security Council and Political Committees Division and Chief of the Council and Committee Services Section, died. In instruction No. 730 of PSCA, dated 21 October 1991, the Under-Secretary-General announced that Mr. Evgeniy Gorkovskiy, a staff member at the D-l level and a national of the former USSR, who had been serving as Special Assistant to

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the Under-Secretary-General for PSCA, had been appointed Deputy Director of the Security Council and Political Committees Division and Chief of the Council and Committee Services Section, with effect from 18 October 1991. On 30 October 1991, Mr. Rollan Dzhikiya, a Senior Counsellor at the Permanent Mission of the former USSR, was appointed Special Assistant to the Under-Secretary-General of the Department of PSCA, on a fixed-term appointment of four months, ending on 29 February 1992, as a replacement for Mr. Evgeniy Gorkovskiy. On 25 November 1991, the Applicant requested the Secretary-General to review the administrative decision to appoint Mr. Rollan Dzhikiya to the post of Special Assistant to the Under-Secretary-General. He stated inter alia that the appointment had been made "without any advertisement of the post, as required by resolution 33/143, part 1, paragraph 1 (a) of 20 December 1978" and was contrary to personnel directive PD/2/88 concerning the contractual status of Special Assistants. Having received no reply from the Secretary-General, on 27 January 1992, the Applicant lodged an appeal with the Joint Appeals Board (JAB). The JAB adopted its report on 28 February 1992. Its conclusions and recommendations read, in part, as follows: "Conclusions and recommendations 26. In view of the Panel's unanimous finding that the Appellant's statutory right to consideration had been violated, it concluded that compensation should be awarded. 28. The Panel concluded unanimously that the Appellant should be considered fully and fairly for vacancies in future and that he should be compensated in the amount of $1,000 for the damage suffered as a result of the Administration's denial of his right to consideration. 29. Finally, the Panel welcomes the Respondent's assurances that the post will be advertised once it becomes vacant after 29 February 1992...." On 11 May 1992, the Assistant Secretary-General for Human Resources Management transmitted to the Applicant a copy of the JAB report and informed him as follows: "The Secretary-General has re-examined your case in the light of the Board's report. Although he does not fully share the Board's reasoning, he has decided, considering that the procedure established for the appointment of Special Assistants had not been followed, to accept the Board's unanimous recommendation that you

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should be considered fully and fairly for vacancies in future and that you should be compensated in the amount of $1,000." On 8 October 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Respondent's failure to advertise the post of Special Assistant to the Under-Secretary-General for PSCA and the temporary filling of that post, for approximately four months, by an external candidate, violated the Applicant's rights. 2. The Respondent's failure to investigate the Applicant's allegations of discrimination against him, in the Department of PSCA, violated his rights. Whereas the Respondent's principal contentions are: 1. Heads of Departments have the authority to decide not to fill vacant posts. 2. The Applicant's allegations of discrimination are in the course of investigation. Insofar as the decision under appeal is concerned, there is no credible evidence that the contested decision was improperly motivated. The Tribunal, having deliberated from 22 June to 22 July 1994, now pronounces the following judgement: I. The post of Special Assistant to the Under-Secretary-General for PSCA became vacant as a consequence of the lateral transfer of its incumbent to the post of Deputy Director of the Security Council and Political Committees Division and Chief of the Council and Committee Services Section. The post of Special Assistant to the UnderSecretary-General for PSCA was filled by external recruitment of a citizen of the former USSR, for a period of four months. The previous incumbent of this post was also a national of the former USSR. The Applicant claimed that the post of Special Assistant to the Under-Secretary-General should have been advertised, that his candidacy should have been considered, that the appointment of an outside candidate from the former USSR showed that improper preference for the post was being accorded to citizens of that country, and that the appointment of an outside candidate violated the provisions of PD/2/88, paragraph 2 which provides that "Special Assistants will be selected from among staff members." II. The case was duly considered by the JAB which found that compensation should be awarded in the amount of US$ 1,000.00. The Secretary-General accepted the proposed recommendation in view of the fact that "the procedure established for the appointment of Special Assistants had not been followed." The Applicant was not satisfied with the

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amount granted as compensation, requesting that the contested decision be rescinded. He appealed to the Tribunal, requesting that the post be announced and his candidacy to a D-1 post be considered fully and fairly. He claimed to be a victim of discrimination. III. The Applicant's claim is virtually identical to one of the claims asserted by the applicant in Judgement No. 657, Araim (1994) rendered by the Tribunal today. For the reasons set forth in that judgement with respect to that claim, which are reproduced below, the Tribunal finds that the responsibility of the Organization is engaged: "III. The Applicant's specific complaints in the present case are (1) that when Mr. Malyev (a citizen of the former USSR), the incumbent of the D-1 post of Chief of Council and Committee Services Section died, the Respondent denied the Applicant an opportunity to be considered for the vacant post by filling it through the lateral transfer of another Soviet staff member who was then serving as Special Assistant to the Under-Secretary-General, Department of Political and Security Council Affairs, and (2) that the Respondent, by filling through external recruitment the Special Assistant post thus vacated, denied the Applicant an opportunity to be considered for it. The Tribunal notes that although the claims relate to two posts, in reality only one vacancy might have been available to be filled by the Applicant. If the Deputy Director post had not been filled by lateral transfer of the Special Assistant, the Special Assistant post would not have become vacant. It was only because of the lateral transfer that the Special Assistant post was open. IV. The Respondent claims that under the prevailing Vacancy Management System, the lateral transfer of a staff member at the D-1 level was within the discretion of the Under-Secretary-General in charge of the department. The Tribunal does not question this right, which is provided for in administrative instruction ST/AI/338. The Applicant, however, was not at the D-1 level. He was at the P-5 level and therefore was not eligible for a lateral transfer to the D-1 post. As it was not contemplated, at that time, that the D-1 Deputy Director post was to be, in the circumstances, filled by a promotion, the Tribunal does not consider that the Applicant has standing to challenge the lateral transfer, and the Tribunal need not consider the merits of this issue further. V. The Tribunal notes further that the Special Assistant vacancy, resulting from the lateral transfer, was temporarily filled for a brief four-month period by a citizen of the former USSR, who was then a member of the Permanent Mission of the USSR to the United Nations. Although subsequently, the latter post was redesignated and filled by staff members of other nationalities, the Tribunal finds,

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Administrative Tribunal of the United Nations from the absence of any substantial reason for external recruitment and a pattern of filling certain posts in the department, that the Respondent had decided in advance to give priority consideration to a Soviet citizen to the exclusion of others. The Tribunal was faced with a somewhat similar situation in Judgement No. 310, Estabial (1983) and held that this constituted unfair treatment in that the Applicant did not receive the consideration to which he was entitled for the vacancy. VI. With respect to the filling of the vacancy of the Special Assistant post, not only is the Tribunal's jurisprudence in Estabial applicable for the reasons indicated above, but the Applicant was also entitled to be considered for the post under PD/2/88, paragraph 2, which provides that 'Special Assistants will be selected from among staff members', not by external recruitment. The Tribunal finds, as noted above, that the filling of the Special Assistant post by an external candidate, who was a Soviet citizen, stemmed predominantly from a determination to accord preferential treatment to a Soviet citizen, which is in conflict with the Tribunal's jurisprudence in Estabial. VII. The only explanation given was that the four-month period 'coincides with the current . . . term of all Under-Secretaries-General, including myself:... the appointment of a new Secretary-General (expected in January 1992) may give rise to certain changes in his cabinet of senior officials. In the light of this probability, I considered it appropriate that the selection of a candidate for the post should be postponed.' This explanation, although understandable, is not acceptable as it does not state why this temporary appointment had to go to a citizen of the former USSR. In addition, as noted above, the failure to advertise the post and fill it, even temporarily, with a staff member was in violation of personnel directive PD/2/88, paragraph 2. VIII. The Tribunal holds, therefore, that the Applicant was wrongly denied the opportunity to be considered for the D-l post of Special Assistant, and that the responsibility of the Organization is thus engaged. The Tribunal finds no merit in the Respondent's contention, in a parallel case, that personnel directive PD/2/88 is inapplicable to short-term temporary appointments. The unambiguous language of the provision contains no such qualification. X. The Tribunal concludes that in the procedure and the process followed in this case, the interests of the Applicant were not fully protected and he is therefore entitled to some compensation. However, the Tribunal also considers that, in the circumstances of

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this case, which, as noted above, actually involved one vacancy, there was, without doubt, a possibility that the number of D-l posts would be reduced in the reorganized department and, accordingly, the chances of the Applicant to obtain a promotion would be reduced, even if he were found to be qualified for such an advancement. Also, as a practical matter, the Tribunal realizes that there is some justification for temporarily filling a post for four months without any vacancy announcement...." IV. As far as the compensation granted to the Applicant is concerned, the Tribunal notes that the Secretary-General accepted the JAB recommendation, solely on the ground that PD/2/88 had not been observed. In the Tribunal's view, the Applicant is entitled to compensation not only on this ground but also because of the improper selection of the person who was temporarily appointed to the post, which caused further injury to the Applicant. For the foregoing reasons, the Tribunal fixes the compensation to be paid to the Applicant at US$ 2,000.00, in addition to the US$ 1,000.00 recommended by the JAB. V. With respect to the alleged failure of the Administration to conduct an investigation of claims of discrimination asserted by the Applicant, the Tribunal notes a communication dated 1 January 1992, from the Applicant to the Director of the Office of the Under-Secretary-General for Administration and Management in which the Applicant declined to participate in a proposed investigation unless it was conducted in a manner specified by him. Hence, this unwillingness of the Applicant to participate was a significant factor in nullifying the proposed investigation. His claim with respect to this matter is lacking in merit. VI. In view of the foregoing, the Tribunal orders the Respondent to pay the Applicant US$ 2,000.00. VII. All other pleas are rejected. (Signatures)

Jerome ACKERMAN First Vice-President, presiding Mikuin Leliel BALANDA

Member Geneva, 22 July 1994

Luis de POSADAS MONTERO Second Vice-President R. Maria VlCIEN-MlLBURN

Executive Secretary

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Administrative Tribunal of the United Nations Judgement No. 660 (Original: English)

Case No. 702: Al-Atraqchi

Against:

The Secretary-General of the United Nations

Application of a former staff member of the United Nations for a finding that his candidature for a vacant post was not given proper consideration and for compensation on this ground. The Joint Appeals Board concluded that the Applicant's candidature had been given full consideration and that the decision not to select him had not violated his rights. The Tribunal notes that the Applicant was duly considered for the vacant post-Staff members have no right to promotion and are only entitled to be duly considered for promotion.-In accordance with the Tribunal's jurisdiction in Judgement No. 447 (Abbas), the burden of proof of having given consideration is on the Respondent whenever a staff member questions that such consideration was given.-The evidence before the Tribunal shows that the Respondent has discharged this burden and that the Applicant was duly considered by the Appointment and Promotion Board and was found not to warrant inclusion in the short list.-The Tribunal finds no evidence to substantiate that extraneous factors influenced the challenged decision. Application rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, First Vice-President, presiding; Mr. Luis de Posadas Montero, Second Vice-President; Mr. Mikuin Leliel Balanda; Whereas at the request of Mohammed AH Al-Atraqchi, a former staff member of the United Nations, the President of the Tribunal, with the agreement of the Respondent, extended to 28 October 1992 the time-limit for the filing of an application to the Tribunal; Whereas, on 28 October 1992, the Applicant filed an application requesting the Tribunal, inter alia: "... to find that: (a) The JAB [Joint Appeals Board] Panel has failed to investigate the issues involved in this case; (b) It was well known inside the former DIESA [Department of International Economic and Social Affairs] (. . .) that this post [Chief, Office of the Under-Secretary-General] was earmarked for [another staff member] a protege of. . ., the former Under-Secretary-General for Administration and Management...

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(c) He was not properly considered for the post in question. . .. and, consequently, to award the Applicant one year's net salary in compensation." Whereas the Respondent filed his answer on 16 December 1992; Whereas the Applicant filed written observations on 19 February 1993; Whereas, on 22 June 1994, the Tribunal requested the Respondent to provide the Tribunal with certain documents, which he did on 29 June 1994; Whereas the facts in the case are as follows: The Applicant entered the service of the United Nations on 7 October 1967, under a probationary appointment at the P-2 level, as an Associate Statistician, with the Statistical Office of the Department of Economic and Social Affairs. On 1 October 1969, his appointment was converted to a permanent appointment, and on 1 June 1970, he was promoted to the P-3 level as a Statistician. On 1 September 1973, the Applicant was transferred to the Council and Committee Services Section, Security Council and Political Committees Division, Department of Political and Security Council Affairs, as an Economic Affairs Officer. On 1 April 1974, he was promoted to the P-4 level and on 1 July 1979, to the P-5 level as a Senior Political Affairs Officer. The Applicant separated from the service of the United Nations on 31 July 1993, having reached the mandatory retirement age. The Administration announced, in Internal Vacancy Announcement 91-E-ESA-249-NY, the vacancy of the D-l post of Chief, Office of the Under-Secretary-General in the Department of International Economic and Social Affairs (DIESA), with a deadline for applications of 8 April 1991. The post was advertised internally, within the Secretariat. Staff members at the D-l or P-5 level were eligible to apply. The Applicant and other staff members applied. The selection was conducted under the Vacancy Management and Staff Redeployment System (VMS), established according to the Secretary-General's Bulletin ST/SGB/221 of 22 December 1986 and administrative instruction ST/AI/338 of the same date, and its addenda, then in force. On 12 July 1991, a Recruitment and Placement Officer at the Office of Human Resources Management (OHRM) informed the Applicant that his name had not been included in the short list of candidates selected by the Appointment and Promotion Board (APB). On 22 July 1991, the Applicant instituted a recourse procedure before the APB, asking the Board to consider him for promotion to the D-l level and transmitting information concerning his experience and qualifications, which at the time of the APB's deliberations might not have been available to it.

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In a communication dated 2 October 1991, the Secretary of the APB informed the Applicant that his recourse had been rejected and that his name "was not included in the final short list" of candidates selected by the Board. On 25 October 1991, the Applicant requested the Secretary-General to review the administrative decision not to appoint him to the post of Chief, Office of the Under-Secretary-General, DIESA. On 24 December 1991, having received no reply from the Secretary-General, the Applicant lodged an appeal with the Joint Appeals Board (JAB). The JAB adopted its report on 5 June 1992. Its conclusions and recommendation read as follows: "Conclusions and Recommendation 22. The Panel concluded that the candidature of the Appellant to the post in question was given full consideration. 23. The Panel also concluded that the decision not to select the Appellant for the post in question did not violate his rights, including his right to due process. 24. Accordingly, the Panel makes no recommendation in support of the appeal." On 10 June 1992, the Assistant Secretary-General, OHRM, transmitted to the Applicant a copy of the JAB report and informed him as follows: "The Secretary-General has re-examined your case in the light of the Board's report. He agrees with the Board's conclusions that your candidature to the post in question was given full consideration and that the decision not to select you for the post did not violate your rights including your right to due process. The Secretary-General has, therefore, decided to take no further action on your case." On 28 October 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The post for which the Applicant applied was earmarked for another staff member. 2. The JAB did not carry out a fair and objective review of the appeal, as required by staff rule 111 .2(m). Whereas the Respondent's principal contentions are: 1. The Applicant has no right to promotion, only a right to be considered for promotion. 2. The Applicant was properly considered by the appointment and promotion bodies. As they did not short list him among the final candidates, he became ineligible for selection under the VMS then in force. This discretionary action of the appointment and promotion bodies did not violate the Applicant's rights.

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3. The Applicant's allegation that the selection process was vitiated by extraneous factors is not supported by evidence. The Tribunal, having deliberated from 22 June to 22 July 1994, now pronounces the following judgement: I. The Applicant claims that he was not properly considered for the post of Chief, Office of the Under-Secretary-General in the Department of International Economic and Social Affairs. He contends that, before the selection process took place, the post in question was already earmarked for the staff member who was finally selected. The selection process was conducted following the Vacancy Management and Staff Redeployment System, then in force. The Respondent maintains that the Applicant was duly considered, that no extraneous factor vitiated the contested decision, and that staff members have no right to promotion. II. The Tribunal notes that: (a) The evidence shows that the Applicant was duly considered for the post. (b) Staff members have no right to be promoted. They are only entitled to be duly considered for promotion. In Judgement No. 447, Abbas (1989), the Tribunal held that "the burden of proof of having given consideration is on the Respondent whenever a staff member questions that such consideration was given". In the Tribunal's view, the evidence before it shows that the Respondent has satisfactorily discharged this burden. The evidence is that the Applicant was duly considered by the Appointment and Promotion Board and was found not to warrant inclusion in the short list submitted to the Department. (c) The Applicant has submitted no evidence to substantiate that extraneous factors influenced the challenged decision and that the appointment of the successful candidate was already decided upon before the selection process was set in motion. III. For the foregoing reasons, the Tribunal rejects the application. (Signatures) Jerome ACKERMAN First Vice-President, presiding Mikuin Leliel BALANDA Member Geneva, 22 July 1994

Luis de POSADAS MONTERO Second Vice-President R. Maria VlCIEN-MlLBURN Executive Secretary

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Judgement No. 661 (Original: English) Case No. 721: Al-Atraqchi

Against: The Secretary-General of the United Nations

Application of aformer staff member of the United Nations for afinding that his candidature for a vacant post was not given adequate consideration in violation of the principle that no post should be the exclusive preserve of any Member State and that he was victim of discrimination, and for compensation for violation of his rights. The Joint Appeals Board concluded that, while the decision to fill the vacant post through lateral transfer had not violated the letter of the law, it was not in accordance with its spirit.—It recommended compensation in the amount of the difference between the salary received by the Applicant and the salary he would have received had he been selected for the post.—Recommendation rejected. The Tribunal recalls its Judgement No. 657 (Araim), relevant extracts from which are reproduced in the present judgement.—In thisjudgement the Tribunal accepted the Respondent 's contention that he had the right to fill the vacant post through a lateral transfer of another official at the same level and that the Applicant therefore had no standing to challenge this decision. Application rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, First Vice-President, presiding; Mr. Luis de Posadas Montero, Second Vice-President; Mr. Mikuin Leliel Balanda; Whereas, on 30 March 1993, Mohammed AH Al-Atraqchi, a former staff member of the United Nations, filed an application requesting the Tribunal, inter alia: "... to find that: 1. The JAB [Joint Appeals Board] did not carry out a fair and full investigation as required by the staff rules and specifically failed to discuss and even mention the discussions I had with Mr. [Evgeniy] Gorkovskiy [Special Assistant to the Under-Secretary-General, Department of Political and Security Council Affairs (PSCA)] to the effect that 'his Government decided to move him to the post of the late . . . [Chief of Council and Committee Services Section (CCSS)], which constitutes the core of this case.

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3. The transfer of Mr. [Evgeniy] Gorkovskiy to the post of Chief of CCSS violates the principle that no post should be the exclusive preserve of any Member State. 5. ... because the Secretary-General violated the principle that no post should be the exclusive preserve of any Member State, my candidacy was not given the 'fullest regard' and 'adequate consideration in a reasonable manner' regarding the vacant D-l post. 6. That this new violation of my right to receive fair and full compensation from PSCA indicates the existence of prejudice and of a pattern of opposition to my promotion. 8. ... to award me compensation equal to two years net salary for this new violation of my right to receive fair and full compensation for this D-l post." Whereas the Respondent filed his answer on 11 June 1993; Whereas, on 4 July 1994, the Tribunal put questions to the Respondent to which he provided answers on 6 July 1994; Whereas the facts in the case are as follows: The Applicant entered the service of the United Nations on 7 October 1967, under a probationary appointment at the P-2 level, as an Associate Statistician, with the Statistical Office of the Department of Economic and Social Affairs. On 1 October 1969, his appointment was converted to a permanent appointment, and on 1 June 1970, he was promoted to the P-3 level as a Statistician. On 1 September 1973, the Applicant was transferred to the Council and Committee Services Section, Security Council and Political Committees Division, Department of Political and Security Council Affairs (PSCA), as an Economic Affairs Officer. On 1 April 1974, he was promoted to the P-4 level and on 1 July 1979, to the P-5 level as a Senior Political Affairs Officer. The Applicant separated from the service of the United Nations on 31 July 1993, having reached the mandatory retirement age. On 5 September 1991, Mr. Leonid Malyev, a national of the former USSR, who served as Chief of Council and Committee Services Section, died. On 6 September 1991, the Director, Security Council and Political Committees Division, announced to the staff of the Department that "owing to the untimely death of Mr. Leonid Malyev and pending the appointment of the Chief of the Council and Committee Services Section, Mr. Qiu Yingjue [Chief, Official Reports and Proceedings Section] will act as Officer-in-Charge in the interim."

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On 12 September 1991, the Applicant wrote to the Director, Security Council and Political Committees Division, stating that, in the light of past practice, it "would be fair that, in the present circumstances" he should "remain Officer-in-Charge, pending the appointment of the Chief of the Council and Committee Services Section for which [he would] be an applicant." On 3 October 1991, the Applicant sent a copy of this memorandum to the Assistant Secretary-General, Office of Human Resources Management (OHRM). On 21 October 1991, the Under-Secretary-General in charge of PSCA, announced to the staff of his Department that Mr. Evgeniy Gorkovskiy, a national of the former USSR, who was serving in the same Department at the D-l level, as Special Assistant to the Under-Secretary-General, had been appointed Deputy Director of the Security Council and Political Committees Division and Chief of the Council and Committee Services Section, with effect from 18 October 1991. On 12 November 1991, the Applicant requested the Secretary-General to review the administrative decision to fill the post by lateral transfer of another staff member. On 10 January 1992, having received no reply from the Secretary-General to his request for review, the Applicant lodged an appeal with the Joint Appeals Board (JAB). The JAB adopted its report on 7 December 1992. Its considerations, conclusions and recommendations read, in part, as follows: "Considerations and conclusions 21. The Panel concluded that staff regulation 4.2, which the Appellant contends should be operative in this situation, does not apply, inasmuch as it deals with the filling of vacancies— The Administration's action in filling the post, while within the letter of the law, was not in its spirit. As a result, a staff member with many years of experience and demonstrated fitness and with a history of being passed over, was denied, by the Administration's resort to lateral transfer, the opportunity even to apply for a post that had become vacant. Recommendations 23. The Panel recommends that the Administration make every effort to address the moral injury suffered by the Appellant, as well as his material injury, i.e. non-promotion, when he and others reasonably expected he would be promoted, and loss of salary. The Panel feels, for all of the reasons mentioned above, that the staff

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member is entitled to compensation for the denial of the opportunity to apply for a vacated post. 24. Accordingly, the Panel recommends that the Appellant be awarded the difference in emoluments that he would have received had he been selected for the post and those he actually received, commencing from the time the post was encumbered by the lateral transfer." On 14 January 1993, the Director of Personnel transmitted to the Applicant a copy of the JAB report and informed him as follows: "The Secretary-General has re-examined your appeal in the light of the Board's report. He agrees with the Board's finding that your rights under staff regulation 4.2 were not violated but does not share its conclusion that the spirit of the applicable regulations and rules was violated. He wishes to re-affirm that, with respect to the post under appeal as well as with respect to any other post, programme managers have the delegated authority under staff regulation 1.2 to rotate or transfer staff laterally within their departments or offices, without prior consideration of each of the staff members at a lower level who might have relevant qualifications and experience. It is only after the appropriate lateral transfers have been made within the department or office that unfilled posts are considered vacant and may be advertised under the applicable procedures, if the decision is made to fill them. The Secretary-General, therefore, cannot accept the Board's recommendation in your case. No further action in regard to your appeal will be taken. I trust, however, that you will fully participate in the investigation initiated by the Under-Secretary-General for Administration and Management in your case in order to clarify some of the issues alluded to by the Board." On 30 March 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Respondent does not have an absolute right to transfer staff. 2. The Applicant's candidacy was not given the "fullest regard" regarding the vacant post. 3. The transfer of Mr. Evgeniy Gorkovskiy to the post violates the principle that no post should be considered the exclusive preserve of any Member State. 4. The JAB did not carry out a fair investigation. Whereas the Respondent's principal contentions are:

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1. Heads of Departments have the authority to rotate or transfer staff laterally within their departments or offices. 2. They are entitled to fill a vacancy by lateral transfer without being limited by the nationality of the staff member transferred. The Tribunal, having deliberated from 22 June to 22 July 1994, now pronounces the following judgement: I. The Applicant claims that, by filling the post of Chief of Security Council and Committee Services Section through the lateral transfer of another staff member, the Administration violated the rules and regulations then in force and followed the erroneous policy of making certain posts the preserve of certain Member States. He also submits that he has been the victim of prejudice and discrimination. The Respondent submits that he has the discretionary power to fill any post by lateral transfer instead of issuing a vacancy announcement and going through the established selection process. II. The Applicant's claim is virtually identical to one of the claims asserted by the applicant in Judgement No. 657, Araim (1994), rendered by the Tribunal today. The reasons set forth in that judgement with respect to that claim are equally applicable to this case. They are reproduced below: "III. The Applicant's specific complaints in the present case are (1) that when Mr. Malyev (a citizen of the former USSR), the incumbent of the D-l post of Chief of Council and Committee Services Section died, the Respondent denied the Applicant an opportunity to be considered for the vacant post by filling it through the lateral transfer of another Soviet staff member who was then serving as Special Assistant to the Under-Secretary-General, Department of Political and Security Council Affairs, and (2) that the Respondent, by filling through external recruitment the Special Assistant post thus vacated, denied the Applicant an opportunity to be considered for it. The Tribunal notes that although the claims relate to two posts, in reality only one vacancy might have been available to be filled by the Applicant. If the Deputy Director post had not been filled by lateral transfer of the Special Assistant, the Special Assistant post would not have become vacant. It was only because of the lateral transfer that the Special Assistant post was open. IV. The Respondent claims that under the prevailing Vacancy Management System, the lateral transfer of a staff member at the D-l level was within the discretion of the Under-Secretary-General in charge of the department. The Tribunal does not question this right, which is provided for in administrative instruction ST/AI/338.

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The Applicant, however, was not at the D-l level. He was at the P-5 level and therefore was not eligible for a lateral transfer to the D-l post. As it was not contemplated, at that time, that the D-l Deputy Director post was to be, in the circumstances, filled by a promotion, the Tribunal does not consider that the Applicant has standing to challenge the lateral transfer, and the Tribunal need not consider the merits of this issue further." III. The Tribunal therefore rejects the application in its entirety. (Signatures) Jerome ACKERMAN

Luis de POSADAS MONTERO

First Vice-President, presiding Mikuin Leliel BALANDA

Second Vice-President R. Maria VlCIEN-MlLBURN

Member

Executive Secretary

Geneva, 22 July 1994

Judgement No. 662 (Original: French) Case No. 712: Potookian

Against: The Secretary-General of the United Nations

Application of aformer staff member of the United Nations for retroactive reclassification orfor appropriate compensation. The Joint Appeals Board recommended that the Applicant be given the same grade as the other staff members performing similar tasks and that, in case these posts are recognized as being at the GS-5 level, the appellant be upgraded retroactively to April 1987.—Decision to reclassify the post from GS-4 to GS-5 and to grant promotion retroactive to 1990. Consideration of the history of the Applicant's employment.—The Tribunal finds that post classification procedures involved were somewhat disorderly.—However, it has repeatedly held that in the absence of procedural irregularities or other extraneous factors involving a lack of due process, it does not enter into job classification issues and that it is not equipped to evaluate ajob description properly.—There is no question in this case of irregularity in the procedures followed or of discrimination.—Moreover, information available indicates that there is a valid basis that the Applicant cannot claim retroactivity in his promotion. Application rejected.

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THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, Vice-President, presiding; Mr. Mikuin Leliel Balanda; Mr. Hubert Thierry; Whereas, on 3 February 1993, Nicola Potookian, a former staff member of the United Nations, filed an application in which he requested the Tribunal, inter alia: "(a) To order the Secretary-General to implement the Applicant's promotion effective March 1987, as recommended by the Joint Appeals Board; (b) Alternatively to order the Secretary-General to implement the Applicant's promotion effective 16 December 1988,...; (c) In the event that the Secretary-General decides,..., to pay compensation in lieu of specific performance, the Applicant requests ... an amount equal to the difference between the Applicant's gross salary,..., at the G-4 level and the gross salary at the G-5 level to which he would have been eligible effective 1987, as recommended by the JAB or 16 December 1988, the date when the Applicant was reassigned to his former Library Assistant post in the Library. ..." Whereas the Respondent filed his answer on 20 September 1993; Whereas the Applicant filed written observations on 12 October 1993; Whereas, on 1 July 1994, the Tribunal put questions to the Respondent to which he provided answers on 6 July 1994; Whereas the facts in the case are as follows: The Applicant entered the service of the Organization on 15 May 1963, as a Messenger at the GS-1, step I level, in the Office of General Services/Communications, Archives and Records Division/Regisrry-Mail Operations Section. On 15 August 1963, he was granted a probationary appointment. With effect from 1 January 1965, he was transferred, with the functional title of Labourer, to the Stack and Loan Section of the Dag Hammarskjold Library in what was then the Office of Conference Services. The Applicant's probationary appointment was extended for one year, with effect from 15 May 1965, and converted to a permanent appointment on 1 May 1966. On 1 November 1966, the Applicant's functional title became Clerk. The Applicant was promoted to the GS-4 level on 1 April 1971, and his functional title became Senior Clerk. On 2 July 1979, the Applicant was reassigned from the Library Service/Stack and Loan Section to the Documentation Service/ Documents Reference and Collections Section, against post No. UNA-23780-E-G-4-029. With effect from 1 January 1980, the name of the Applicant's organizational unit was changed to Checklist Sub-Group.

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In July 1982, the International Civil Service Commission approved the establishment of a seven-level grading structure (to replace the old five-level structure) for the General Service category in New York and promulgated job classification standards for the seven levels. As a result, all General Service posts in New York were classified under procedures set out in administrative instruction ST/AI/301 of 10 March 1983. On 1 January 1985, the Applicant's post—renumbered to post No. UNA 29780-E-O-L-037—was classified under job description No. 1488, at the GS-3 level. Prior to September 1986, the Checklist Sub-Group was comprised of four staff members, Messrs. Gonzalez, Dowdell, Yousseff and the Applicant, all performing similar functions at the same level. On 16 September 1986, the Applicant was reassigned, with his post, to the Serials Group of the same section, to perform functions at the GS-4 level. As a result of the Applicant's reassignment and other staff movements, the staffing in the Checklist Sub-Group was reduced to three. The three-member Sub-Group included a Mr. E. Cardona who moved to the Group, contemporaneously with the Applicant's reassignment, replacing one of the other former four group members, Mr. Yousseff who had vacated his post. As a result of the "Study of Alleged Inconsistencies in the General Service Classification Exercise" undertaken by the Compensation and Classification Service in 1988, the post corresponding to job description No. 1488 was reclassified to the GS-4 level. In the context of the 1985/1986 transitional measures set out in circular ST/IC/87/59 of 11 November 1987, Mr. Cardona submitted a revised job description No. 4457 as a result of assumption of additional duties, and his post was classified at the G-5 level on 26 September 1988. On 8 November 1988, further to a communication addressed to him by the Director, Dag Hammarskjold Library, the Executive Officer, Department of Conference Services (DCS), wrote to the Chief, Compensation and Classification Service, requesting that the functions the Applicant had previously performed—job description No. 1488—be retroactively classified at the GS-5 level. The Executive Officer, DCS, noted that the post encumbered by Mr. Cardona had been reclassified at the GS-5 level on the basis of assumption of additional functions. The functions of job description No. 4457 and the functions of job description No. 1488, that is, the functions the Applicant had previously performed, were essentially the same and the G-4 grade of the post corresponding to job description No. 1488 might have been based on an inadequate job description. On 17 November 1988, the Deputy Chief, Compensation and Classification Service, informed the Executive Officer, DCS, that upon further review and relying on verification of the respective duties by the supervisors of the posts at the

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time that the job descriptions had been prepared, he had concluded that the two job descriptions did not cover the same duties. On 16 December 1988, the Applicant returned to the Checklist Sub-Group with his post, and the staffing of the Group increased once again to four. He resumed the checklisting functions described in job description No. 1488, and Mr. Cardona continued to perform the functions described in job description No. 4457. On 28 March 1989, the Executive Officer, DCS, asked the Deputy Chief, Compensation and Classification Service, to reconsider his decision of 17 November 1988 not to classify the post covered by job description No. 1488 at the GS-5 level. The Deputy Chief, Compensation and Classification Service, replied on 12 June 1989, stating that a review of the information did not provide grounds to change the original determination that job description No. 1488 and job description No. 4457 did not cover the same functions. On 10 July 1990, the Assistant Secretary-General for Human Resources Management approved a recommendation by the Interdepartmental Task Force on the Dag Hammarskjold Library, contained in its interim report of 16 April 1990, to review, as an exception to the current guidelines for classification of posts, a very limited number of General Service cases in the Library. The post encumbered by the Applicant was among the posts to be reviewed. Any recommendation would take effect from 16 April 1990. On 30 December 1991, the Applicant requested the Secretary-General to review the administrative decision not to implement his promotion "which was due since 1987". The Applicant argued that he had been performing the functions described in job description No. 4457, classified at the G-5 level, since 1980 and that "for purely bureaucratic reasons... my promotion has been delayed indefinitely." On 22 January 1992, the Applicant was reassigned to the post described in job description No. 4460, classified at the G-5 level, with effect from 29 October 1991. On 28 February 1992, the Applicant, having received no reply, lodged an appeal with the Joint Appeals Board (JAB) against the administrative decision not to implement his promotion. The JAB adopted its report on 18 September 1992. Its recommendations read as follows: "Recommendations 22. The Panel unanimously recommends that the Appellant and the other checklisters involved, including the one on post # 4457 be given the same grade since the Administration on several occasions has indicated that they perform basically the same functions.

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Should the Compensation and Classification Service decide that these posts are indeed at the G-5 level, the Panel recommends that the upgrading be retroactive to 1987, the date at which post # 4457 was reclassified to G-5, since the fact that the Administration did not formally make the job descriptions identical until recently should not be to the detriment of the individual staff members." On 3 November 1992, the Director of Personnel transmitted to the Applicant a copy of the JAB report and informed him as follows: "The Secretary-General has re-examined your case in the light of the Board's report. Bearing in mind that (i) classification of posts is a technical exercise which may have serious financial implications whenever a post is upgraded; changes in the classification level can be made only when OHRM is provided with a sufficient basis for determining that a prior classification should be changed; (ii) your post, which had been classified at the GS-3 level in the initial classification exercise, was subsequently upgraded to GS-4 in 1988 as a result of a study on alleged inconsistencies which had been conducted in your department; (iii) you were never assigned to the post which was reclassified to G-5 in 1988, after additional duties had been added to the job description; (iv) in the context of an overall review of the situation in the Dag Hammarskjold Library, OHRM agreed in 1990, as an exception to the current guidelines for reclassification of posts, to review a limited number of cases where insufficiency of prior job descriptions might have caused problems. OHRM agreed at the time that, as a further exception to the usual rule, where the earliest date of promotion of the incumbent of an upgraded post to the level of that post is the date on which the post is reclassified, the incumbents of posts upgraded as a result of the review would be promoted retroactively as of 16 April 1990; (v) as a result of the review, your post was reclassified from the GS-4 to the GS-5 level in July 1992; in accordance with the decision taken in 1990, you will be retroactively promoted to that level effective 16 April 1990, the Secretary-General has concluded that the unsatisfactory aspects of your case have already been remedied in a fair and equitable manner, in the context of the more general solution reached with respect to all the staff members included in the limited review agreed to by OHRM in 1990. He has decided to take no further action in your case.

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A P.5 Personal Action form was prepared on 25 November 1992, implementing the Applicant's upgrading from the G-4 to the G-5 level, with effect from 16 April 1990. On 3 February 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contention is: His promotion to the G-5 level should be made retroactive to March 1987 as recommended by the JAB, or alternatively to 16 December 1988, when he was reassigned to his former post in the Library. Whereas the Respondent's principal contentions are: 1. The Applicant was not performing the functions of the post described in job description No. 4457 which was classified at the G-5 level in 1988. He cannot therefor claim a right to a retroactive promotion based on the classification of functions which he never discharged. 2. The Applicant has been adequately compensated for the administrative confusion that arose out of this classification exercise. The Tribunal, having deliberated from 1 to 22 July 1994, now pronounces the following judgement: I. The Tribunal must decide whether the Applicant, who was promoted from the G-4 to the G-5 level on 25 November 1992, with retroactive effect from 16 April 1990, may claim that the promotion should have taken effect either in March 1987 or on 16 December 1988. II. From 1979 onward the Applicant had been working as an Assistant Librarian and formed part of the Checklist Sub-Group within the Dag Hammarskjold Library. From 1985 onward his job classification matched job description No. 1488, and in 1988 he was promoted to the G-4 level. Colleagues of his in the Sub-Group were promoted to the G-5 level in 1985 and 1987. But in September 1986, the Applicant was reassigned (on loan) to another unit while his post was taken by another assistant librarian (Mr. Cardona). Mr. Cardona was promoted to the G-5 level in September 1988, with effect from March 1987, and his post (formerly encumbered by the Applicant) was defined by a new job description, No. 4457. In 1988 (16 December), the Applicant was returned to his former post with job description No. 1488, i.e. without the reclassification and promotion from which Mr. Cardona had benefited. Only in July 1992, was he promoted to the G-5 level, with retroactive effect from 16 April 1990, as a result of an exceptional review of the classifications of certain posts that had been requested by the Assistant Secretary-General for Human Resources Management. III. The Applicant submits that his temporary reassignment deprived him of a promotion he would otherwise have had, since the tasks performed by Mr. Cardona were identical or similar to those that he per-

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formed after returning to the Checklist Sub-Group on 16 December 1988. He therefore asks that his promotion to the G-5 level be made retroactive to either March 1987, when the post encumbered by Mr. Cardona, job description No. 1488, was redefined and classified under job description No. 4457, or December 1988, when the Applicant returned to his former job. The Respondent, on the other hand, maintains that the Applicant did not in fact perform the duties corresponding to job description No. 4457, which differed appreciably from the duties of the post covered by job description No. 1488, to which the Applicant was assigned before and after his reassignment. IV. The Tribunal finds, like the Joint Appeals Board, that post classification procedures in the Dag Hammarskjold Library were somewhat disorderly. However, the Tribunal has repeatedly held that in the absence of procedural irregularities or other extraneous factors involving a lack of due process, it does not enter into job classification issues. The Tribunal is not equipped to evaluate a job description properly. That is the function of specialized bodies within the Organization. In this case, there is no question of irregularity in the procedures followed and no discrimination is alleged. However, information requested and received by the Tribunal indicates that the description of the post classified under job description No. 4457 is appreciably different from that of the post classified under job description No. 1488. Since the job description is the focal point of the classification process, there is thus a valid basis for concluding that the Applicant cannot claim retroactivity in his promotion to the G-5 level beyond 16 April 1990. V. For the foregoing reasons, the Tribunal rejects the application. (Signatures) Jerome ACKERMAN Vice-President, presiding Hubert THIERRY Member Geneva, 22 July 1994

Mikuin Leliel BALANDA Member R. Maria VICIEN-MlLBURN Executive Secretary

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Judgement No. 663 (Original: English) Case No. 677: Manirakiza

Against: The Secretary-General of the United Nations

Application of a former staff member of the United Nations for granting him an appointment, with appropriate functions, until retirement age, for payment of difference of salary between D-l and his former D-2 level and for compensation for denial of his rights and for suffering inflicted on him. The Joint Appeals Board recommended that the Applicant be considered without further delay for a post with assigned functions.—Recommendation accepted. The Tribunal notes that the Secretary-General accepted in essence the recommendation of the JAB but that inquiries made with regard to the possibility of assigning the Applicantfailed and he was separated, after the expiry of his last fixed-term appointment, on 31 December 1993.—Respondent's assertion that practically all Applicant's complaints arise from circumstances which occurred long before he initiated an appeals procedure on 4 March 1991 and are therefore time-barred.—The Tribunal agrees with the JAB that decisions taken respectively in 1983 (when the Applicant was removed from his post as Deputy Executive Secretary of the Economic Commission for Africa) and in 1987 (when his grade was lowered from D-2 to D-l) had not been appealed on time.—However, the Tribunal also agrees with the Board that the problem of the Applicant, who has been held in a «floating » position ever since 1983, being retained for a long period on a succession of fixed-term contracts, without any assignment, was of a continuous nature and therefore within the Board's competence.—The Tribunal considers that, by accepting the JAB recommendation, the Secretary-General must be taken to have abandoned any possible contention of untimeliness.—If the Secretary-General wished to oppose untimeliness, this should have been indicated in the decision itself, subject to the Tribunal's review, as indicated in Judgement No. 527 (Han).—The Tribunal examines the implementation of the Secretary-General's decision, taking into account events occurring even more than 60 days before the date of the appeal.—The Tribunal records its surprise at the state of affairs disclosed by this case: the Applicant was appointed to the position of Deputy Executive Secretary of the Economic Commission for Africa (which he performed in a satisfactory manner) in response to efforts of the Applicant's government and then removed from this position (by another Secretary-General) in response to representations by a successor government which was hostile to the Applicant.—Since his removal and for nearly ten years, with a short interval, he was given no assignment and was paid while performing no duties.—The Tribunal will not judge the managerial practices within the Organization which is not its function.—It is the task of the Administration to take any action with regard to those responsible, in accordance with the relevant provisions of the Financial Rules and of the Staff Rules.—The Tribunal examines only if there has been a good faith implementation of the Secretary-General's decision accepting the JAB recommendation.—Although some efforts were made, the Tribunal is unable to conclude that there was good faith implementation of this decision.—This failure, as well as the delays of the cause, constitute unfair treatmentfor which the Applicant is entitled to compensation, although the Tribunal does not consider reinstatement and extension as appropriate in the circumstances. Award of compensation of$20,000.—All other pleas rejected.

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221

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, Vice-President, presiding; Mr. Mikuin Leliel Balanda; Mr. Mayer Gabay; Whereas at the request of Marc Manirakiza, a former staff member of the United Nations, the President of the Tribunal, with the agreement of the Respondent, successively extended to 31 May, and 30 June 1992, the time-limit for the filing of an application to the Tribunal; Whereas, on 30 June 1992, the Applicant filed an application requesting the Tribunal, inter alia: "... to order the Secretary-General: (c) To grant to the Applicant a fixed-term appointment until 31 December 1997, at the D-2 level, against a post with assigned functions; (d) To pay to the Applicant the difference between the salary he received at the D-l level and the salary and other benefits at the D-2 level he would have received had he remained at the D-2 level; (e) To pay to the Applicant compensation for the denial of his rights resulting in the complete disruption of his U.N. career and for the moral, emotional, physical and financial suffering inflicted upon him and his family, in an amount to be determined by the Administrative Tribunal." Whereas on 12 August 1993, the Applicant submitted an additional document; Whereas the Respondent filed his answer on 28 October 1993; Whereas the Applicant filed written observations on 14 December 1993, in which he requested the Tribunal: "to order... payment of interest [on any amount awarded to him by the Tribunal] for the period from 2 August 1992 until the date of the Tribunal's judgement." and "... to award him appropriate compensation [for allowing the] Applicant's fixed-term appointment to expire, without an extension, prior to any consideration of his case by the Administrative Tribunal." Whereas, on 22 June 1994, the Tribunal put questions to the Respondent, to which he provided answers on 5 July 1994; Whereas, on 8 July 1994, the Applicant submitted his comments thereon; Whereas the facts in the case are as follows: The Applicant, a national of Burundi, entered the service of the United Nations on 5 March 1980, on a two year fixed-term appointment,

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at the D-2, step 1 level, as Deputy Executive Secretary of the Economic Commission for Africa (ECA) in Addis Ababa. On several occasions during 1981, and during the early part of 1982, the Government of Burundi asked the Secretary-General, as well as the Executive Secretary of ECA, not to extend the Applicant's appointment, on the ground that the Applicant's services were required by his Government. On 25 February 1982, the Permanent Representative of Burundi to the United Nations wrote to the Secretary-General, advising him that, as the Applicant was on secondment from his Government, which had decided to entrust him with new responsibilities, ECA could not keep him in UN service without prior approval from his Government. In a reply dated 26 February 1982, the Secretary-General informed the Permanent Representative of Burundi to the UN that the Applicant was serving under a fixed-term appointment which, in accordance with the Staff Rules, could be extended at the Secretary-General's discretion. The Executive Secretary of ECA had requested an extension of the Applicant's appointment. The Secretary-General noted in his reply that the Applicant was free to resign and to accept new responsibilities with his Government, if he should wish to do so, but that the Applicant's appointment could not be terminated without his consent. The Applicant's fixed-term appointment was extended for one year, with effect from 5 March 1982. On 22 March 1982, the Permanent Representative of Burundi to the UN wrote to the Secretary-General, informing him that the Applicant was the author of a document which, in his view, was of a political nature and was directed against the Government of Burundi, in violation of the Applicant's obligations under staff regulations 1.4 and 1.7 and staff rule 101.6. In a legal opinion dated 25 March 1982, the Legal Counsel informed the Secretary-General that, in his view, the document referred to did not contain any remarks that were insulting to the Government of Burundi. He noted, however, that the Applicant had shown "a lack of judgement" concerning his obligations as an international civil servant, in drafting and distributing the document. As the document had not been published, the Applicant had not violated staff rule 101.6. On 2 April 1982, the Chef de Cabinet of the Secretary-General advised the Permanent Representative of Burundi to the UN of the Legal Counsel's conclusions. On 11 February 1983, the Applicant asked the Assistant Secretary-General for Personnel Services to investigate certain allegations which had been made against him by the Government of Burundi. He also stated that his wife had been detained by the authorities of Burundi for three months, without explanation, and was unable to leave the country.

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When the question of renewal of the Applicant's contract arose in February 1983, the Secretary-General decided, after consultations with the Executive Secretary of ECA, that in the interest of the Organization, the post of Deputy Executive Secretary should be declared vacant and advertised, and that the Applicant's contract should be extended through 31 May 1983. In a communication of this decision, to the Assistant Secretary-General for Personnel Services, dated 18 February 1983, the Executive Assistant to the Secretary-General noted: a. The Secretary-General would appreciate it if you would kindly explain his decisions to the Permanent Representative of Burundi. At the same time please take the necessary actions to extend [the Applicant's] contract and immediately circulate the vacancy notice ...". The Applicant's contract was extended until 31 May 1983. At the beginning of May 1983, the Assistant Secretary-General for Personnel Services decided that the Applicant's appointment should be extended for a further fixed-term period of two months and 26 days, in order to find him a suitable position at a different duty station. On 16 May 1983, the Assistant Secretary-General for Personnel Services asked the Applicant to travel to New York for consultations regarding his future employment. The Applicant's appointment was then extended through 31 July 1983. In July 1983, the Secretary-General decided to appoint a panel of three senior UN officials to investigate the Applicant's conduct. On 28 October 1983, the Panel submitted a report in which it concluded that the Applicant had not infringed the Staff Regulations or Rules or the Standards of Conduct of the International Civil Service. On 1 August 1983, the Applicant's appointment was extended for a further five months, through 31 December 1983, as Director, Department of Administration and Management in New York. On 28 November 1983, the President of the UN Staff Committee wrote to the Secretary-General as follows: "... that the post in the Economic Commission, against which [the Applicant] is charged, was loaned to Headquarters for the period 1 August to 31 December 1983. That same post has now been advertised as vacant. Pending a positive outcome of the attempts to place him in the Secretariat I would like to request that the post of Deputy Executive Secretary in ECA be blocked so that [the Applicant] is assured of no change in his contractual status pending a final resolution of the problem." The Applicant was then given a project personnel appointment at the L-7, step II level, with effect from 1 January 1984, for a fixed-term of

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one year, as Director of a project in Thailand. This appointment was extended for a further year, with effect from 1 January 1985. On 21 March and again on 1 October 1985, the Applicant wrote to the Under-Secretary-General for Administration and Management, reminding him of a promise that a more permanent position would be found at the end of his present assignment in December 1985. On 19 December 1986, the Under-Secretary-General for Administration and Management advised the Applicant as follows: "The United Nations will continue your employment for a further period of one year, to 31 December 1987. For that purpose, a letter of appointment for a fixed-term of one year, from 1 January to 31 December 1987, will be issued. The level of Appointment will be either D-l or L-7, depending on the functions assigned. Your duty station will be New York, and you will be expected to report for duty on or around 1 February 1987. [The Executive Officer] will be in touch with you for the details. The period to 31 January 1987, will be considered as leave with pay. A fixed-term appointment does not carry any expectation of renewal, but conversely does not exclude the possibility of renewal. A decision on whether or not to renew your appointment will be taken in 1987, in due time, in the light of the needs of the Organization." On the same date, the Applicant responded, regretting that the commitment was only for one year and that the level had been downgraded from D-2 to D-l or L-7, "which carries with it the connotation of a demotion as if I am being penalized." Subsequently, the Applicant accepted, with effect from 1 January 1986, a fixed-term appointment of two years and six months, expiring on 30 June 1988. He was assigned from the Department of Administration and Management to UNITAR, as a Principal Officer, for the period from 15 May 1987 until 30 June 1988. The Applicant's fixed-term appointment was then extended four times, through 31 August 1988, through 31 December 1989, through 31 December 1991 and through 31 December 1993, as Principal Officer, Department of Administration and Management, Office of Programme Planning and Budget Division. On 31 January 1991, the Applicant wrote to the Assistant Secretary-General for Human Resources Management,3 requesting that his employment be regularized. On 4 March 1991, the Applicant requested a review by the Secretary-General of the "implicit administrative decision by omission [not] to 3

Successor of the Office for Personnel Services.

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correct and regularize [his] work situation." Having received no reply, on 5 April 1991, the Applicant lodged an appeal with the Joint Appeals Board (JAB). The JAB adopted its report on 13 November 1991. Its considerations and recommendations read, in part, as follows: "Considerations and recommendations 31. The Panel was of the view that the Appellant is entitled to be considered for placement against a budgetary post with defined functions and a job description in the light of the promise given to him by the Secretary-General and the foregoing considerations. The Panel did not accept the position taken by the Respondent that 'the undertaking referred to relates only to the re-integration of the appellant into the UN system...' which actually led to the unsatisfactory current situation. Recommendations 32. The Panel unanimously recommends that, without further delay, the Appellant be considered for a post with assigned functions which would permit the Appellant to contribute to the work of the United Nations and demonstrate his abilities, one which would carry with it reasonable career expectations. This post should be searched for throughout the Secretariat and ideally should be one where the administrative capacities of the Appellant could be used effectively." On 19 November 1991, the Director, Office of the Under-SecretaryGeneral for Administration and Management transmitted to the Applicant a copy of the JAB report and informed him as follows: "... The Secretary-General regrets that the efforts made so far have not been successful in placing you on a post with defined functions. While he shares the Board's view in paragraph 31 of its report concerning your right to consideration for placement on a post with defined functions, such post may be one financed from the regular budget or from other sources. It should be noted in this connection that, under staff regulation 1.2, the Secretary-General may assign a staff member to any of the activities or offices of the United Nations. Accordingly, the Secretary-General has decided that you should be considered for assignment to the functions of a post commensurate with your level and capabilities and that an extensive search be undertaken for this purpose." On 30 June 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Applicant's rights have been violated as he has been a staff member of the United Nations for over twelve years and none of the con-

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secutive fixed-term appointments granted to him have carried any assurance of continued employment. After 1 January 1986, his letters of appointment have even failed to specify his functions. 2. The Applicant was downgraded to the D-l level, with effect from 1 January 1986, although no disciplinary action has ever been taken against him. Whereas the Respondent's principal contentions are: 1. The Applicant's appeal, in so far as it relates to assignments occurring before the appeal made on 4 March 1991, is time-barred, pursuant to staff rule 111.2. The JAB has no authority to waive that time-limit. 2. The Organization has been unable for many years to place the Applicant. The past renewals of his appointment, despite the lack of any real work, do not give the Applicant a right to their continued renewal until retirement age. The Tribunal, having deliberated from 21 June to 22 July 1994, now pronounces the following judgement: I. This is an appeal from a decision of the Secretary-General, dated 19 November 1991, in which the Secretary-General adopted, in essence, the recommendation of the JAB that the Applicant be considered for assignment to a post commensurate with his level and capabilities and that an extensive search be undertaken for that purpose. In reaching his decision, the Secretary-General stated that he shared the JAB's view, in paragraph 31 of its report, concerning the Applicant's right to consideration for placement in a post with defined functions. Paragraph 31 of the JAB report states: "The Panel was of the view that the Appellant is entitled to be considered for placement against a budgetary post with defined functions and a job description in the light of the promise given to him by the Secretary-General and the aforegoing considerations." The only aspect of the above quoted JAB view with which the Secretary-General was not in accord pertains to whether the Applicant's entitlement to a post was limited to a post financed from the regular budget. II. Following the Secretary-General's decision of 19 November 1991, inquiries were made aimed at finding an appropriate post to which the Applicant could be assigned, but these failed to lead to an assignment. Upon the expiration of the Applicant's last fixed-term appointment on 31 December 1993, he was separated from the Organization. In his pleas, the Applicant asks preliminarily that the Respondent explain "why the Applicant was demoted and left 'floating' without assigned functions since January 1986;" and that the Respondent explain "why Applicant has not been reinstated in his former post as Deputy Executive Secretary of the UN Economic Commission for Africa (ECA)." On the merits, the

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Applicant asks the Tribunal to order the Secretary-General to accede to his pleas which are quoted above. III. The Respondent's position before the Tribunal is that virtually everything about which the Applicant complains and which led to his predicament occurred long before he invoked the appeals procedure under the Staff Rules by seeking, on 4 March 1991, a review by the Secretary-General of an "implicit administrative decision by omission to correct and regularize my work situation." Previously, on 31 January 1991, the Applicant had written to the Assistant Secretary-General, OHRM, requesting that the Applicant's situation be regularized, but the Applicant received no response to this request. The Respondent also asserted before the JAB that the substance of the Applicant's claims were time barred and that only challenges to administrative decisions occurring within 60 days of the Applicant's request for review, on 4 March 1991, were within the competence of the JAB. The Respondent maintains this same position with respect to the receivability of the Applicant's appeal insofar as it relates to assignments occurring more than 60 days before 4 March 1991. IV. The JAB concurred with the Respondent's timeliness contentions with respect to the decision taken in 1983, to remove the Applicant from the post in ECA, and the decision in 1987, which had the effect of lowering the Applicant's grade from D-2 to D-l. Neither of these decisions was appealed by the Applicant in a timely fashion. The Tribunal agrees with the JAB. V. However, with respect to another aspect of the Applicant's case, namely the action of the Administration which had kept the Applicant in a "floating" position since 1983, the JAB took the view that the problem was continuing in nature and therefore within its competence. One reason for the JAB's view was the undisputed existence of a promise on the part of the then Secretary-General that the Applicant would be reinstated in an equivalent position if an investigation of allegations relating to the removal of the Applicant from his post as Deputy Executive Secretary of ECA were determined to be unfounded. They were so determined, but the Applicant was left for years in the anomalous position of being retained at the D-2 and subsequently at the D-l level, under a series of fixed-term contracts but, with the exception of a relatively short period, having no regular assignment. Indeed, the Respondent has admitted that for a lengthy period of time the Applicant was paid by the Organization although he had no defined functions, and that his treatment was not in the interests of the Organization. VI. The Tribunal has considered the untimeliness arguments advanced by the Respondent and, except as indicated above, declines to accept them. In the view of the Tribunal, the decision of the SecretaryGeneral dated 19 November 1991 had the effect of waiving any conten-

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tion of untimeliness with respect to the basis for the JAB recommendation which appears in paragraph 31 of its report and which the Secretary-General stated that he shared. Having then adopted, in essence, the ensuing recommendation in paragraph 32 of the JAB report, the Secretary-General must be taken to have abandoned any possible contention of untimeliness with regard to the underpinning for his own decision. If the Secretary-General wished to adopt the position now being urged by the Respondent with regard to untimeliness, this should have been made clear in the decision itself. The propriety of such an exercise of discretion would have been reviewable by the Tribunal as indicated in Judgement No. 527, Han (1991). But for the Respondent's counsel to urge untimeliness in the face of the Respondent's decision is an inconsistency which the Tribunal cannot sustain. Hence, the Tribunal will examine the implementation of the Respondent's decision dated 19 November 1991 and, for background purposes, take into account events occurring more than 60 days prior to 4 March 1991. It will only do so consistent with the approach taken by the JAB, which was evidently found acceptable by the Respondent. VII. At the outset, the Tribunal must record its surprise at the state of affairs disclosed by this case. The Tribunal notes that the Secretary-General who originally appointed the Applicant, directly and without competition, to the position of Deputy Executive Secretary of ECA and the Secretary-General who removed the Applicant from that position are no longer associated with the Organization. From the evidence before the Tribunal, it appears that the former did so in response to efforts supportive of the Applicant by his government, and the latter did so in response to representations by a successor government which was hostile to the Applicant. It also appears that the Applicant was qualified for the post of Deputy Executive Secretary, ECA, and that, while he held the post, he performed its duties satisfactorily. Despite his qualifications, after his removal from the post in 1983, he was, with perhaps one exception, given a series of meaningless assignments with no work to do for long periods of time. The Applicant candidly admits that he reported regularly, was paid, used other people's offices as an accommodation, did no work for the UN, read newspapers, and did personal work or writing. Efforts were made from time to time by the Applicant or by the Staff Union to change this state of affairs and place him in a meaningful assignment. But, except as noted above, these efforts did not bear fruit. It is not the function of the Tribunal to judge the managerial practices within the Organization and it will not do so. That is a responsibility of the Secretary-General and, of course, the General Assembly. Nor is it for the Tribunal, in the first instance, to approve or fix the blame for any staff member collecting pay from the Organization for doing nothing. It is within the province of the Administration for such action, if any, as may be appropriate under Financial Rule 114.1, staff rules 110 and 112.3, or both,

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or in the performance evaluation reports of those responsible, subject to possible review by the Tribunal. What is now properly for consideration by the Tribunal in this case is whether there has been good faith implementation of a decision by the Secretary-General, accepting a JAB recommendation. The latter was based on a finding that the Applicant had been treated unfairly by the Administration, which deprived him of the possibility to establish his value to the Organization by not giving him meaningful assignments. VIII. Some evidence was presented to the Tribunal by the Respondent indicating efforts on his part to implement the 19 November 1991 decision. This evidence consisted of letters from the Assistant Secretary-General, OHRM, to officials who might have been able to place the Applicant in a meaningful post, and a letter to the Director, Recruitment and Placement Division, OHRM, from the Director, Staff Administration and Training Division, with the same objective. There was also a letter dated 6 August 1993, from the Director of Personnel which, without referring to the 19 November 1991 decision, included the Applicant's name on a list of 12 staff members who might be considered for additional professional posts in Peace-Keeping Operations. However, the record before the Tribunal does not disclose any written responses indicating the consideration, if any, given to the Applicant, or to the 19 November 1991 decision, and the reasons, if any, for his non-selection. The Tribunal is unable to conclude that there was good faith implementation of the Secretary-General's decision. IX. This view is strengthened by apparent lack of merit in the Respondent's claim that, with one exception, the Applicant did not seek to be considered for any vacancies between 1990 and 1993. The Applicant has submitted evidence to the contrary, and this impugns the Respondent's claim. Moreover, the Tribunal considers that the import of the 19 November 1991 decision is that the Administration was to undertake greater efforts to place the Applicant in a suitable post than the writing of a few letters with no follow-up, and without ascertaining and documenting why the Applicant was unacceptable. The Tribunal recognizes that the Applicant had some responsibility for diligence in applying for vacancies for which he was qualified, and may not have discharged his responsibility as fully as he might have. However, the Tribunal finds that the 19 November 1991 decision called upon the Administration to do more than it did in the circumstances of this case, particularly in the absence of performance evaluation reports, which the Administration negligently failed to prepare. X. This failure to implement in good faith the 19 November 1991 decision, as well as the delays in the case, constituted unfair treatment of the Applicant, engaging the responsibility of the Organization. Although the Applicant seeks reinstatement and extension of his fixed-term contracts until

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retirement age, the Tribunal does not consider such a remedy to be appropriate in the circumstances described above. For the injury sustained by the Applicant and having in mind the unusual history of this case, in which the Applicant was remunerated for doing no work over a long period, the Tribunal fixes as compensation the amount of US$ 20,000.00. XI. For the foregoing reasons, the Tribunal orders the Respondent to pay the Applicant the amount of US$ 20,000.00. XII. All other pleas are rejected. (Signatures) Jerome ACKERMAN

Mikuin Leliel BALANDA

Vice-President, presiding

Member

Mayer GABAY

R. Maria VlCIEN-MlLBURN

Member

Executive Secretary

Geneva, 22 July 1994

Judgement No. 664 (Original: French) Case No. 710: Treggi

Against:

The Secretary-General of the United Nations

Application of a former staff member of the United Nations for reimbursement of the full amount paid for the unaccompanied shipment of his personal effects in connection with home leave. The Joint Appeals Board found no merit in the Applicant s claim and recommended its rejection. The Applicant was reimbursed only partially for the shipment of his personal effects by air, in accordance with a rule which provides for a maximum weight or volume of authorized shipment by surface and stipulates that, if the shipment is made by air, the maximum amounts are reduced by half.—The Applicant claims that, while he exceeded the authorized weight, he did not exceed the authorized volume and should be fully reimbursed.—The Administration interprets the relevant rule as signifying that neither the authorized weight nor the authorized volume may be exceeded.—The Tribunal finds that the rule lends itself to more than one interpretation and considers that the interpretation of a rule must not contradict either the spirit or the letter of the provision.—// is for the Tribunal to determine whether the Administration's interpretation respects this principle.—It considers that the Administration s right to interpret the rules was correctly exercised and that the method used to determine the authorized shipment, on the basis of either weight or volume, determines the limits applicable. Application rejected.

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THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Luis de Posadas Montero, Vice-President, presiding; Mr. Mikuin Leliel Balanda; Mr. Mayer Gabay; Whereas at the request of Gian Carlo Treggi, a former staff member of the United Nations, the President of the Tribunal, with the agreement of the Respondent, extended to 31 January 1993 the time-limit for the filing of an application to the Tribunal; Whereas, on 25 January 1993, the Applicant filed an application requesting the Tribunal, inter alia: "(a) To rescind the decision of the Secretary-General to reject the Applicant's request for the reimbursement of the full amount he paid for the unaccompanied shipment of personal effects in connection with his return travel from home leave in 1991; (b) To order the Secretary-General to reimburse the Applicant for the full amount requested in his original claim." Whereas the Respondent filed his answer on 24 March 1993; Whereas the Applicant filed written observations on 16 July 1993; Whereas the facts in the case are as follows: The Applicant entered the service of the United Nations on 25 March 1971, on a probationary appointment at the P-3, step 1 level, as an Administrative Officer, in what is now the Office of Human Resources Management. On 1 May 1972, his functional title was changed to Recruitment Officer and on 1 May 1973, his appointment was converted to permanent. The Applicant was promoted to the P-4 level, with effect from 1 April 1974. On 1 July 1978, he was transferred to the Department of Technical Cooperation for Development. He was promoted to the P-5 level, as a Senior Recruitment Officer, with effect from 1 April 1980 and on 1 May 1984, his functional title became Chief of Unit. The Applicant separated from the service of the United Nations on 1 May 1992. In connection with the Applicant's home leave to Rome, Italy, in June 1991, the Executive Office issued a travel authorization stating that the Applicant was authorized "110 pounds (50 kilograms) per e/w [each way]" via surface for the unaccompanied shipment of his personal effects. Upon his return from home leave, the Applicant submitted a claim for reimbursement in the amount of 400,000 lira ($299.63 at the current rate of exchange in force at the time). He attached a receipt stating that the contents of this shipment weighed 48 kilograms. When the claim was processed, the Administration reimbursed the Applicant only $156.05. The Applicant's allotment for an unaccompanied shipment via air was governed by the "one-half rule" (that is, half the amount allowed for surface shipments with no costs to be paid for pack-

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ing, crating, unpacking and uncrating, only reasonable cost for cartage). The Traffic Unit cited staff rule 107.21 which governs excess baggage and unaccompanied shipments. On 18 November 1991, the Applicant wrote to the Chief, Traffic Unit, Office of General Services, requesting a re-evaluation of his claim and arguing that the data contained in the airway bill was unreliable. In a reply dated 19 November 1991, the Chief, Traffic Unit, stated that "the Traffic Unit can only take action on the documentation presented to it and work within the entitlements on the staff member's travel authorization." In essence, he confirmed the original allowance, which was less than the amount actually paid by the Applicant. On 18 December 1991, the Applicant requested the Secretary-General to initiate an administrative review of this decision. Having received no substantive reply, on 23 January 1992, the Applicant lodged an appeal with the Joint Appeals Board (JAB). The Board adopted its report on 5 June 1992. Its considerations, conclusion and recommendation read as follows: "Considerations 15. The Panel noted that the Appellant had authorization for a surface shipment in accordance with staff rule 107.21 which permits reimbursement for a maximum of 50 kilos and he exercised the option to convert this to a shipment via air which is governed by the 'one-half rule'. Thus his reimbursable weight allowance was no more than 25 kilos. He actually sent a shipment that weighed 44 kilos, exceeding his allowance by 19 kilos. 17. The Panel could find no basis for the argument that this shipment should have been based on the cubic volume because such is not substantiated by the accompanying documentation which refers to weight. 18. As to the allegation that the per kilo shipping price was too low to be realistic, the Panel notes that the shipper was selected by the Appellant presumably because his quoted per kilo price was reasonable. However, this is not the issue and a greater or lesser per kilo charge would not affect the facts contested by the Appellant, only the relative amounts that would have to be paid. Conclusion and Recommendation 19. For the reasons cited above, the Panel recommends that the appeal be rejected." On 16 June 1992, the Assistant Secretary-General for Human Resources Management transmitted to the Applicant a copy of the JAB report and informed him that the Secretary-General had decided to accept the Board's recommendation and to reject his appeal.

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On 25 January 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contention is: Since the volume limit of the Applicant's shipment was established by staff rule 107.21 and was not exceeded, he should be reimbursed the full amount he paid for the unaccompanied shipment of his personal effects, irrespective of the actual weight of the shipment. Whereas the Respondent's principal contention is: The amount of reimbursement received by the Applicant for expenses incurred as a result of the unaccompanied shipment of his personal effects was calculated in compliance with the applicable staff rule. The Applicant's rights were thus not violated, even though he considers the amount awarded inadequate. The Tribunal, having deliberated from 30 June to 22 July 1994, now pronounces the following judgement: I. On the occasion of the Applicant's departure for Rome on home leave in June 1991, the Executive Office issued a travel authorization stating that the Applicant could ship from New York to Rome, and vice versa, unaccompanied personal effects weighing "110 pounds (50 kilograms) per e/w [each way]" via surface, that is, by land or by sea. II. When returning from home leave, the Applicant decided to ship his personal effects by air as unaccompanied baggage. He then submitted a claim for reimbursement in the amount of 400,000 lira ($299.63) at the rate of exchange in force at that time). The Administration reimbursed the Applicant only $156.05, corresponding to 25 kilos, considering that unaccompanied shipment by air was governed by the "one-half rule" (that is, half the amount allowed for surface shipments). The Administration took that decision on the basis of staff rule 107.21(j), concerning excess baggage and unaccompanied shipments, which states among other things that: "(j) Where surface shipment ... is the most economical means of transport, such shipment may be converted to air freights on the basis of one half of the weight or volume of the authorized surface entitlement...". III. The Applicant is claiming reimbursement of the full amount he paid for the unaccompanied shipment of his personal effects, irrespective of the actual weight of the shipment. He claims that the volume limit of his shipment, fixed in accordance with staff rule 107.21(e), was not exceeded. That rule states, among other things, "(e) When the authorized travel is by air or by land, charges for unaccompanied shipment of personal baggage relating to travel on home leave, family visit or education grant may be reimbursed up

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to a maximum, including the weight or volume of packing but excluding crating and lift vans, of: (i) 50 kilograms (110 pounds) or 0.31 cubic metres (11 cubic feet) by surface means per person in respect of each journey, except as provided in subparagraph (ii) below...." IV. The Respondent considers that the amount of reimbursement received by the Applicant for expenses incurred by the unaccompanied air shipment of his personal effects was calculated in compliance with the applicable staff rule. The Respondent concludes that the Applicant's rights were thus not violated, even though he considers the amount awarded to be inadequate. V. The Tribunal notes that according to staff rule 107.21 (e)(I) unaccompanied shipments are subject to two limits: a maximum volume and a maximum weight, i.e. "50 kilograms (110 pounds) or 0.31 cubic metres (11 cubic feet) by surface means per person in respect of each journey". The Tribunal further notes that for an unaccompanied air shipment the Applicant's entitlement is subject to the "one-half rule" mentioned in paragraph II above, i.e. "one half of the weight or volume of the authorized surface entitlement". Upon departing on home leave the Applicant was authorized 50 kilograms via surface for the unaccompanied shipment of his personal effects, but he decided to ship by air a package containing personal effects weighing 48 kilos, for which he claimed full reimbursement. The Applicant argues that, having respected the volume limit, he is not required to respect the weight limit. Consequently, he should be fully reimbursed. Staff rule 107.21(e) lends itself to more than one interpretation. However, the Administration construes it as meaning that the two maximum limits mentioned (weight and volume) must both be respected. VI. Any application of a rule necessarily entails interpretation. However, this interpretation must not contradict either the letter or the spirit of the provision interpreted. In the event of a dispute, it is for the Tribunal to determine whether the Administration's interpretation of a given provision respects this principle. In this case, the Tribunal considers that the Administration's right to interpret its own rules was correctly exercised and that the interpretation given to staff rule 107.21(e) contradicts neither the letter nor the spirit of that provision. The reference to "weight or volume" in the Staff Rules does not confirm the Applicant's position if it is read in the context of the words "charges... may be reimbursed" (staff rule 107.21(e)). The method used

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for authorized shipment, on the basis of either weight or volume, determines the limits applicable. Neither limit can be exceeded unless special authorization is obtained. Otherwise, the Administration could not verify in advance the amounts of reimbursement authorized. A staff member is not free to modify unilaterally what has been authorized and to impose on the Administration a charge greater than that which it has accepted. The Tribunal therefore concludes that the Administration was entitled to require the Applicant to respect the weight and volume limits and hence to deduce that the Applicant had forfeited his right to reimbursement because he had exceeded the authorized weight limit. VII. The Tribunal concludes that in acting in this way, the Administration correctly applied the relevant provisions of the Staff Rules. VIII. For the foregoing reasons, the application is rejected. (Signatures) Luis de POSADAS MONTERO

Mikuin Leliel BALANDA

Vice-President, presiding Mayer GABAY

Member R. Maria VlCIEN-MlLBURN

Member

Executive Secretary

Geneva, 22 July 1994

Judgement No. 665 (Original: English) Cases: Against: The United Nations Joint No. 717: Gonzalez de German Staff Pension Board No. 718: Marais No. 719: Purcell No. 720: Couderc

Application of four participants in the United Nations Joint Staff'Pension Fund (staff members orformer staff members of UNESCO) for a rescission of the decision of the Standing Committee of the United Nations Joint Staff Pension Board upholding the decision of the Secretary of the Board to take into account pensionable remuneration which does not correspond to the gross salary scales.—Request for costs. The Standing Committee of the United Nations Joint Staff Pension Board upheld the decision of the Secretary, while stating that the appeal involved complex legal issues which merited adjudication by the Administrative Tribunal.

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The Tribunal joins the four cases which present common issues of law and fact.—Although the submissions of the parties raised questions regarding the relationship between thejurisdiction of the Tribunal and of the ILO Administrative Tribunal, the Tribunal sees no need to examine them as there is an agreement as to its competence in this case. The Applicants' contention that the pensionable remuneration scales used by UNESCO in 1990 and 1991 were illegally taken into account by the Pension Fund because they did not correspond to the gross salary scales, as provided for in Article 54(a) of the Fund's Regulations.—Consideration of the circumstances in which the International Civil Service Commission (ICSC) decided that a portion of the total remuneration paid to the General Service category in Paris (4.5%) would be considered as non-pensionable.—This resulted from the salary survey in Paris which disclosed that salaries paid by outside employers used as comparators included a non-pensionable element.—The UNESCO administrative circular which published the new salary scale contained two annexes: Annex I which concerned the annual salary scale, gross and net, and Annex II which concerned the pensionable remuneration.—The reasons for the existence of the two scales was fully explained in the circular, especially in view of thefact that this was the first time that this methodology (already used in non-Headquarters duty stations) was applied in a Headquarters duty station.—There were thus in fact, in accordance with the ICSC recommendations, two gross salary scales, onefor the purpose of determining the salary payable to a staff member (Annex I) and the other for the purpose of calculating contributions to the Pension Fund and the benefits payable to it (Annex II).—The Tribunal finds that none of the Applicants could have been misled as to the correct amount of their pensionable remuneration.—To rely exclusively on the scales in Annex I as the gross salary for the purposes of Article 54(a) of the Fund's Regulations would nullify the ICSC recommendation concerning the calculation of the pensionable remuneration which was lawfully adopted by UNESCO.—The Tribunal holds that gross salary scales established as pensionable remuneration in Annex II were properly accepted by the Pension Fund for the calculation of the Applicants 'pension. In view of the Standing Committee's statement that the appeal involved complex legal issues which merited adjudication by the Administrative Tribunal, the Tribunal finds that the Applicants were encouraged to submit the present appeal and that it is appropriate to award costs.—The Tribunal orders the Respondent to reimburse the Applicants the amount ofUS$ 4,500 for the collective costs. Application rejected, as well as individual requests for costs.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, Vice-President, presiding; Mr. Hubert Thierry; Mr. Mayer Gabay; Whereas at the request of Norma Gonzalez de German, Suzanne Marais, Janine Purcell and Janine Couderc, participants in the United Nations Joint Staff Pension Fund (hereinafter referred to as UNJSPF), the President of the Tribunal, with the agreement of the Respondent, extended the time-limit for the filing of an application with the Tribunal to 15 March 1993; Whereas, on 12 March 1993, the Applicants filed applications requesting the Tribunal, inter alia:

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3. To order the rescission of the decision taken by the Standing Committee on behalf of the Joint Staff Pension Board at its 174th meeting, held on 2 July 1992 at Montreal, to uphold the decision of the Secretary of the Board to calculate the pension payable to the Applicant, [as well as the contributions payable by them] by taking into account, for the [years 1990 and 1991], pensionable remuneration scales which do not correspond to the gross salary scales, and to draw all legal consequences from that rescission; 4. To award the Applicant, as costs, a sum payable by the Respondent, assessed at the time of the filing of this application at eighteen thousand (18,000) French francs, subject to adjustment upon completion of the proceedings." Whereas the Respondent filed his answer on 29 April 1994; Whereas, on 6 October 1994, the Applicants submitted written observations; Whereas, on 13 October 1994, the presiding member of the panel ruled that no oral proceedings would be held in the cases; Whereas, on 13 October 1994, the Tribunal put questions to the Respondent to which he provided an answer on 14 October 1994; Whereas, on 18 October 1994, the Applicants provided their comments on the Respondent's submissions and he submitted an additional statement on 19 October 1994; Whereas, on 21 October 1994, the Applicants provided their comments on the Respondent's additional statement; Whereas the facts in the cases are as follows: The Applicants Norma Gonzalez de German and Janine Purcell serve at UNESCO Headquarters in Paris as General Service staff members. Both are participants in the UNJSPF since 1972 and 1964, respectively. The Applicants Janine Couderc and Suzanne Marais, also participants in the UNJSPF, served at UNESCO Headquarters in the General Service category from 1968 until 1991 and from 1960 until 1994, respectively, when they separated from service. Both are now the recipients of retirement benefits from the Pension Fund. On 16 April 1991, the Secretary of the UN Joint Staff Pension Board (UNJSPB) provided the Applicant Couderc with details of her benefit entitlements. In response to her subsequent request of 11 July 1991, the Secretary of the UNJSPB, on 22 October 1991, sent her an explanation of how her early retirement benefit had been calculated, in accordance with the UNJSPF's Regulations and Rules. On 14 October 1991, the Applicant Gonzalez de German wrote to the Secretary of the UNJSPB pointing out that according to her annual

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statement received from the UNJSPF, since 1 January 1990 her pensionable remuneration had been calculated as set forth in Annex II of UNESCO administrative circular No. 1700, i.e. grossing up, through the application of staff assessment rates, 95.5 per cent of the net salary, and thereby excluding a 4.5 per cent non-pensionable component incorporated in the net salary scale. The Applicant contested the pensionable remuneration amounts and consequent pension contribution levels reported by UNESCO on her behalf for the year 1990. The Applicant requested a review of the decision to calculate her pensionable remuneration based on Annex II, claiming that the calculation should have been based on the scales in Annex I of circular No. 1700, which were described as annual salary scales—expressed in gross and net amounts. The Applicant made the same claim for 1991, on the basis of the scales in Annex I of UNESCO administrative circular No. 1752. The Applicants Couderc, Marais and Purcell made similar claims and requests. Administrative circular No. 1700, dated 12 January 1990 and entitled "Salaries and Benefits for General Service Staff at Headquarters", reported on the recommendations of the International Civil Service Commission (ICSC), following a survey of conditions of employment in Paris. The circular included an explanation in paragraph 5 as follows: "The benefits and allowances accorded by employers in Paris and considered by them as non-pensionable, on the basis of the survey, constitute 14.5 per cent of net remuneration. The ICSC considered the level of these benefits to be sufficiently high to recommend the establishment of a non-pensionable component of salary equivalent to 4.5 per cent of net salary at each grade and step." The circular also explained, in paragraph 13, the distinction between Annex I and Annex II as follows: "In the light of the foregoing, the new scale set forth in Annex I will be applied to staff in the General Service category, with effect from 1 January 1990. The reference scale of October 1988 has been updated to take into account the evolution of external salaries between October 1988 and October 1989, applying the method used to adjust salaries between the surveys (...). This adjustment of 3.71 per cent is pensionable. The exchange rate used to gross up net salaries and to calculate pensionable remuneration (Annex II) is 6.09 Francs to the dollar, representing the average rate over the preceding 36 months." On 10 February 1992, UNESCO issued administrative circulars Nos. 1827 and 1828, in order to dispel certain "misunderstandings" that had arisen with respect to the different remuneration scales in the annexes of its earlier administrative circulars Nos. 1700 and 1752, by clarifying

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that the amounts set forth in Annex II of circulars Nos. 1700 and 1752 constituted gross salary for pension purposes. On 2 July 1992, the Standing Committee of the UNJSPB upheld the decision of the Secretary of the UNJSPB concerning the calculation of the Applicants' pensionable remuneration and consequent contribution levels for the years 1990 and 1991. On 16 and 25 September 1992, the Secretary of the UNJSPB informed the Applicants in similar communications that the Standing Committee had decided: "(a) To acknowledge receipt of your request for review, concerning the levels of your pensionable remuneration and pension contributions for [the years 1990 and 1991]; (b) To affirm that your appeal involved complex legal issues that were important and merited adjudication by the United Nations Administrative Tribunal; and (c) To uphold the acceptance by the Secretary of the Board of the levels of pensionable remuneration and pension contributions reported by UNESCO on your behalf for [the years 1990 and 1991]." On 15 March 1993, the Applicants filed with the Tribunal the applications referred to earlier. Whereas the Applicants' principal contentions are: 1. Article 54(a) of the UNJSPF Regulations provides that pensionable remuneration is to be determined on the basis of the gross salary of the participant. 2. The UNJSPF should not have accepted any report from UNESCO of pensionable remuneration levels and of pension contributions that were based on scales other than the gross salary scales issued by UNESCO. Whereas the Respondent's principal contentions are: 1. Within the UN common system, decisions as to the general methodology to be followed in General Service salary surveys and recommendations regarding the salary scale, determined on the basis of salary surveys at particular locations, are delegated to the ICSC which determined that the non-pensionable component in net salaries (here 4.5 per cent) cannot be included in the calculation of pensionable remuneration. 2. Although the listing of two distinct gross salary scales in UNESCO's administrative circulars Nos. 1700 and 1752, applicable to its General Service staff in Paris for the years 1990 and 1991, may have caused some lack of clarity, the intent was clear: to provide greater transparency in a rather complicated area, in the interest of all UNESCO staff members.

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The Tribunal, having deliberated from 11 October to 4 November 1994, now pronounces the following judgement: I. The Applicants appeal from the decision dated 2 July 1992, by the Standing Committee of the United Nations Joint Staff Pension Board (UNJSPB), to uphold the decision of the Secretary of the UNJSPB to calculate the pensions payable to the Applicants by taking into account, for 1990 and 1991, certain pensionable remuneration scales. The position of the Applicants is that, in so doing, the UNJSPB acted unlawfully because the scales did not correspond to the gross salary scales established for the Applicants. The Applicants' position is based on article 54(a) of the Regulations of the United Nations Joint Staff Pension Fund which provides in part: "Pensionable remuneration shall be the equivalent in dollars of the sum of: (i) the participant's gross salary, (ii) any language allowance payable to him ..." The Applicants state that their pensions with respect to the period in question were calculated incorrectly because they were based on a pensionable remuneration scale not termed "gross salary" as such, which differed from the amount described as "gross salary" in Annex I of UNESCO administrative circular No. 1700, dated 12 January 1990 and Annex I to UNESCO administrative circular No. 1752, dated 23 January 1991, with respect to the General Service category. As the applications present common issues of law and fact, the Tribunal joins them. II. Although the parties' submissions include a discussion of abstract questions regarding the relationship between the jurisdiction of the Tribunal and the ILOAT, there is agreement as to the Tribunal's competence in this case and accordingly, there is no need for the Tribunal to consider jurisdictional questions. III. It is undisputed that the calculation of the Applicants' pensions was not based on the figures in Annex I to the administrative circulars, which was entitled "ANNUAL SALARY SCALE Showing Gross and Net Amounts After Application of Staff Assessment." The pensions were, however, derived using those figures and other calculations, on the basis of Annex II to the relevant circulars, which was entitled "PENSIONABLE REMUNERATION Scale Expressed in French Francs the Equivalent of Which in Dollars Is Pensionable for General Service Category Staff Members at Headquarters." IV. The difference between the two Annexes to the administrative circulars is explained in the body of circular No. 1700, and the explanation was obviously applicable also to circular No. 1752. The difference stems from a recommendation by the International Civil Service Com-

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mission (ICSC) with regard to remuneration levels of the General Service category. The ICSC recommendation involved a revision of its salary survey methodology applicable to Headquarters locations so as to identify a non-pensionable element in the net salary payable at Headquarters locations. Prior to this revision, there had been a substantial number of duty stations, other than Headquarters locations, where a non-pensionable component had been identified and taken into account in the process of arriving at gross salary scales to establish appropriate pensionable remuneration scales. UNESCO administrative circulars Nos. 1700 and 1752 represented the first UNESCO application of the ICSC recommendation regarding this matter. In essence, the ICSC had found that the applicable area salary levels used as comparators in arriving at its recommended General Service category levels incorporated an amount that was non-pensionable. The ICSC concluded that General Service category levels should follow a similar pattern. V. Although the pertinent ICSC survey had identified a non-pensionable element in area salaries of 14.5 per cent, it recommended that only 4.5 per cent be considered as non-pensionable remuneration for the General Service category at the Paris Headquarters locations. The implementation of this recommendation was calculated by arriving at a gross salary figure for staff assessment and salary payment purposes by "grossing up" the net salary found in the ICSC salary survey in accordance with the standard ICSC procedure for so doing. This gross salary figure was then reduced by the amount of staff assessment, and the resulting net figure was then multiplied by 95.5 per cent. This calculation produced a net salary figure from which die 4.5 per cent non-pensionable component had been removed. To arrive at the gross salary figure for pensionable remuneration purposes, the net figure was "grossed up" in accordance with the same ICSC procedure. VI. In effect, the implementation of the ICSC recommendation involved the use of two "gross salary" figures, one for the purpose of determining the salary payable to a staff member and the other for the purpose of calculating contributions to the Pension Fund and benefits payable by it. The 4.5 per cent non-pensionable remuneration element is reflected in the gross salary calculations displayed in Annex II, but not in the gross salary scales displayed in Annex I. However, given the explanations in paragraphs 5 and 13 of circular No. 1700, a reasonable person reading the administrative circulars would understand that Annexes I and II had to be read together in order to determine the gross salary figure for pensionable remuneration purposes within the meaning of article 54(a) of the Pension Fund Regulations. VII. In developing the two Annexes attached to the administrative circulars, UNESCO was attempting to explain in a reasonably under-

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standable fashion its salary and pensionable remuneration methodology and structure. As a non-pensionable element was present for the first time in the net salary payable to the General Service category at UNESCO's Paris Headquarters, it is not surprising that UNESCO made a special effort to ensure that staff members would see the difference between gross salary for remuneration purposes and for pension purposes. VIII. The Applicants' challenge to the UNJSPB's decision in this case is, in reality, an exercise in semantics. It rests entirely on the "gross salary" label which appears in Annex I of the administrative circulars but ignores altogether Annex II and paragraphs 5 and 13 of administrative circular No. 1700 (whose significance plainly carried over to administrative circular No. 1752). The Applicants, who obviously benefited from the ICSC recommended methodology in the form of salary increases and from the partial application to them of the non-pensionable component prevalent in the area, would nevertheless have the Tribunal disregard the evident purpose of the circulars, i.e. to explain the difference between gross salary for pay purposes and gross salary for pension purposes. IX. Were the Tribunal to sustain the Applicants' selective reference to Annex I as the definitive description of gross salary for the purposes of article 54(a) of the Pension Fund Regulations, it would nullify the ICSC recommendation lawfully adopted by UNESCO and provide an unjust windfall benefit to the Applicants. X. The Tribunal finds that none of the Applicants could have been misled as to the correct amount of their pensionable remuneration and the explanation therefor. In view of the generous nature of the ICSC methodology adopted by UNESCO, none of the Applicants was injured in any fashion by the pension calculation on the basis of administrative circulars Nos. 1700 and 1752. The Tribunal holds therefore, that, read in their entirety and in context, administrative circulars Nos. 1700 and 1752 established gross salary scales as shown in Annex II for the General Service category, in keeping with the ICSC recommendation adopted by UNESCO. The Fund properly accepted those scales as pensionable remuneration for the calculation of the Applicants' pensions, under article 54(a) of the Pension Fund Regulations. XI. In view of the Standing Committee's affirmation "that your appeal involved complex legal issues that were important and merited adjudication by the United Nations Administrative Tribunal" the Tribunal finds that the Applicants were thus encouraged to submit the appeals that are now before the Tribunal. This being the case, it is appropriate that there be an award for costs. Accordingly, the Tribunal orders the Respondent to reimburse the Applicants, in the amount of US$ 4,500 in total, for the collective costs with respect to this case.

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XII. For the foregoing reasons, and except as provided in paragraph XI above, the applications are rejected, as are the individual requests for costs. (Signatures) Jerome ACKERMAN

Hubert THIERRY

Vice-President, presiding

Member

Mayer GABAY

R. Maria VICIEN-MILBURN

Member

Executive Secretary

New York, 4 November 1994

Judgement No. 666 (Original: English) Case No. 716: Vorobiev

Against:

The Secretary-General of the United Nations

Application of a former staff member of the United Nations Conference on Trade and Development (UNCTAD) for a rescission of the decision refusing to entertain further requests for an extension of his fixed-term appointment, for reinstatement and for payment of back salary, orfor an award of three years of salary in case compensation is paid instead of reinstatement. The Joint Appeals Board concluded that the Applicant had no legitimate expectancy of renewal or conversion to career appointment and that due process had been respected.—It recommended nevertheless an extension on humanitarian grounds to allowfor the continuation of medical treatment of the Applicant's daughter.—Recommendation rejected. Although the Respondent asserts that the decision was not due to the alleged pressure arising from the Applicants' purported status of secondment, the Tribunal examines the question whether the Applicant was on secondment.—It finds that the criteria for secondment set out in Judgement No. 482 (Qiu, Zhou and Yao) are notfulfilled in the present case. — Applicant's complaint that he was not accorded reasonable consideration for a long-term extension or career appointment, in accordance with General Assembly resolution 37/126, because of pressures exerted on UNCTAD by the authorities of USSR. — Although the Respondent contends that the decision not to grant a career appointment was taken on the recommendation of the Advisory Panel on Personnel Questions after a comparative review of the levels of competence of the Applicant and of his colleagues, he is unable to provide any supporting documents on this issue, which the Tribunal finds disturbing. — The Respondent accepts that, after five years of continuing good service, staff are entitled to every consideration for a career appointment, but that this does not mean that every staff member must be retained. — The Tribunal recognizes administrative and operational complexities which ensued for the Secretary-General from Judgement No. 482 and considers that, in setting up the Advisory Panel on Personnel Questions to assist him in dealing with such situations, he showed good faith in attempting to observe the principles set forth in that

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judgement.—Analysis of the composition of the Advisory Panel in the Applicant s case and of information provided to the Panel on pressures of the authorities of USSR. — The Tribunal considers that the motivation behind the recommendation made to the Panel might be subject to question, as the officials who made the recommendation had been in direct contact with the Soviet authorities, but does not find sufficient evidence to conclude that the Panel's recommendation was decisively influenced thereby or that the Applicant was subject to discrimination in comparison to other Soviet colleagues in similar situation.—While rejecting the Applicant's main contention, the Tribunal finds that there was a number of procedural irregularities for which he is entitled to compensation.—Applicant's reference to ILO Administrative Tribunal Judgement No. 1249 (Reznikov): the Tribunal finds a fundamental distinction in that in the latter case the Director-General felt himself bound by the attitude of the USSR government. Award of compensation of nine months of Applicant's net base salary at the time of his separation.—All other pleas rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, Vice-President, presiding; Mr. Hubert Thierry; Mr. Francis Spain; Whereas, on 1 March 1993, Petr Y. Vorobiev, a former staff member of the United Nations Conference on Trade and Development, hereinafter referred to as UNCTAD, filed an application requesting the Tribunal, inter alia: "1.

...

2. ... [to order that he] be reinstated as a staff member of the United Nations... [as] the Respondent should have maintained him in service after 31 December 1992, in accordance with the Charter of the United Nations, the Staff Regulations and Rules, [and] the relevant General Assembly resolutions... [and] to rescind the Respondent's decision of 16 March 1992, that no further requests for extension of his fixed-term appointment after 31 December 1992 would be entertained. 3. ... to recognize: (a) That by making the decision on 16 March 1992, [see 2 above]... the Respondent put the Applicant in a discriminatory situation as compared with other staff members and that this decision was illegal; (b) That continuous pressure was exerted on the UNCTAD Secretariat with the aim of preventing further employment of the Applicant. . . and replacing him by a nominee put forward by the USSR Mission; (d) That the Applicant had a certain expectancy of renewal of the contract after September 1991 as specific assignments for the period 1992-1993 were allocated to him;

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(e) That the withholding from the Applicant for more than a year of information concerning the decision that his fixed-term appointment would not be extended after September 1991 prevented the staff member from exercising in due time his right to undertake recourse action ..., as specified in the Staff Rules; (g) That the Administration,... in April 1992, placed the Applicant without his consent under the secondment of a Government for whose State agencies he had never worked and with which he thus had no legal ties; (i) That the Respondent's decision was arbitrary, based on considerations contrary to the Charter, and constituted abuse of authority; (k) That the Applicant was illegally deprived of his right of access to the official documents which were relevant to his case...; (l) That the Applicant was illegally and discriminatorily deprived of the possibility of obtaining another assignment in the United Nations system in September 1992 ... 4. ... to order payment to the Applicant of salary lost during the period of unemployment between the expiry of his contract and the reconstitution of his career. 5. ... to order his reappointment as a staff member retroactively from 1 January 1993. 6. In the event of compensation being paid in lieu of reappointment, ... the granting of an award in the amount of three years' net base salary in view of the special circumstances of the case." Whereas the Respondent filed his answer on 21 July 1993; Whereas the Applicant filed written observations on 24 November 1993; Whereas the Applicant filed additional written observations on 22 June 1994; Whereas, on 14 September 1994, the Tribunal put questions to the Respondent, to which he provided answers on 30 September 1994; Whereas, on 30 September and 10 October 1994, the Applicant filed additional written observations; Whereas the facts in the case are as follows: The Applicant, a national of the former Union of Soviet Socialist Republics (USSR), entered the service of the United Nations on 8 Sep-

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tember 1985, as an Economic Affairs Officer, on a two year fixed-term appointment at the P-3, step 1 level, in the Shipping Division of UNCTAD. The letter of appointment stated under "Special Conditions", "staff member is on secondment from the Government of the Union of Soviet Socialist Republics". The Applicant's candidacy for the post had been proposed, on 9 July 1984, to the Secretary-General of UNCTAD, by a representative of that government, as a replacement for another staff member seconded from that government, who was due to retire. After an exchange of correspondence with the Secretariat of UNCTAD, the Government of the USSR agreed, on 15 February 1985, to the Applicant's appointment. His fixed-term appointment was subsequently extended for a further period of 3 years, through 7 September 1990. In a communication dated 11 September 1990, officials from the Permanent Mission of the USSR to the United Nations in Geneva wrote to the Secretary-General of UNCTAD submitting the candidatures of a number of Soviet nationals to replace the Applicant and another staff member in the Shipping Division. In a further communication dated 5 December 1990, the Deputy Permanent Representative of the USSR to the United Nations in Geneva informed the Secretary-General of UNCTAD that "important and adequate posts have been offered to Messrs. . . . and [the Applicant] in the USSR Ministry of Merchant Marine" and that "the Soviet side has no intention to support the prolongation of their further work in the UNCTAD Secretariat after the expiration of their current contracts". The Applicant's appointment was extended, on a month-by-month basis, through March 1991. At a meeting held on 1 February 1991, the Advisory Panel on Personnel Questions of UNCTAD reviewed the Applicant's contractual status. The Panel's report notes, in part: ". . . The Panel had before it the Shipping Division's submissions recommending an extension for [another staff member] of three years and for [the Applicant] through September 1991. In addition, it benefitted from an oral presentation by, and discussion with Mr. Bouayad [Director of the Shipping Division of UNCTAD] in the context of the eligibility of both staff members for the review of their appointments for conversion to career status, bearing in mind that they had both completed five years of service. The panel evaluated the different recommendations concerning the periods of extension and concurred with the Division that the difference reflected different levels of competence and skill requirements. Accordingly, it agreed to recommend approval of the extensions as proposed." On 27 February 1991, the Chief of Personnel, UNCTAD, informed the Personnel Officer, Office for Human Resources Management

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(OHRM) at Headquarters, that the Secretary-General of UNCTAD endorsed the recommendation of the Advisory Panel on Personnel Questions, and extended the Applicant's appointment through September 1991. On 27 March 1991, a letter was sent from the USSR Ministry of Merchant Marine to the Secretary-General of UNCTAD, suggesting that "the time has come to substitute [another staff member] and [the Applicant]. The letter noted that candidates had been proposed for their substitution and that the Applicant and the other staff member would be offered positions with the Ministry of Merchant Marine. In his reply, dated 30 April 1991, the Director for Programme Support and Management Services informed the Permanent Mission of the USSR that a copy of the letter had been "transmitted to Headquarters for its further consideration and decision". On 11 July 1991, the Applicant wrote to the Secretary-General of UNCTAD that he wished to remain in the service of UNCTAD. In a note for the file, which was copied to the Applicant, dated 14 August 1991, the Chief, Personnel Service, UNCTAD, recorded the contents of a meeting held with the Applicant regarding his communication of 11 July 1991. In this note, he explained that he had been instructed to reiterate to the Applicant that UNCTAD had proposed a one year extension of his fixed-term appointment, through September 1991, "and that would be a final extension". He noted "that that recommendation took into account [the Applicant's] performance and UNCTAD's skill needs", and further added that in making the recommendation, "UNCTAD had not been influenced by the question of secondment under discussion at New York. Indeed, in line with Headquarters instructions, UNCTAD had examined the contractual status of various staff members who had served for at least five years and whose letters of appointment indicated they were on secondment, using the same criteria used in [the Applicant's] case." Regarding discussions with Soviet authorities on the Applicant's status and replacement, the Chief, Personnel Service, stated that those authorities had "indicated orally to various senior officials in UNCTAD and twice in writing that the Ministry of Merchant Marine, which had originally released [the Applicant] for service with UNCTAD, had made plans to re-absorb him. The Soviet authorities had also indicated that [the Applicant] had been informed. [The Applicant] stated that he had received no details from the Soviet authorities on the matter." On 23 August 1991, the Applicant sent to the Chief, Personnel Service, a memorandum supplementing his record of their meeting, which included the following: "The decision of the UNCTAD Secretariat not to extend my contract after September 1991 put me in a very difficult position. To date, I have not been offered a suitable job in accordance with my

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Administrative Tribunal of the United Nations competence and experience in the USSR Ministry of Merchant Marine. In view of rapidly increasing unemployment in my country and the deepening economic crisis, it will be almost impossible for me to find a suitable job immediately upon my return to the USSR. This situation is further aggravated by the fact that my thirteen year old daughter is now undergoing serious medical examinations.

I kindly request the Secretariat to grant me a short-term extension of my contract to allow me to complete the preparation of the report 'The Convention on a Code of Conduct for Liner Conferences in the Nineties' for the benefit of the organization and at the same time to allow me to complete medical treatment for my daughter and ultimately to find a suitable job in my country. I understand problems of the UNCTAD Secretariat and at the same time I expect the Secretariat would give full consideration to my situation as well." On 30 August 1991, the Deputy Permanent Representative of the USSR submitted additional candidates "for replacement of [the Applicant]." On 18 September 1991, the Director of the Medical Service in Geneva wrote to the Chief of Personnel of UNCTAD, advising that he had received a medical report to the effect that the health of the Applicant's daughter made her presence in Geneva for another six months desirable. On 19 September 1991, the Chief of Personnel of UNCTAD wrote to OHRM that, in light of this medical opinion, UNCTAD would be prepared to extend the Applicant's contract for a final six months, subject to approval by OHRM. Accordingly, the Applicant's contract was extended for six months, through 31 March 1992. The letter of appointment stated as a "special condition" that the Applicant "is on secondment from the Government of USSR". In a memorandum dated 14 November 1991, the Applicant informed the Chief of Personnel that "although [he did] not object in principle to be on secondment, in the present situation it loses to a great extent its significance as ... [his] former employer, the USSR Ministry of Merchant Marine has ceased to exist and it does not have any legal successor in the new USSR government structure". On 17 January 1992, the Applicant filed a complaint with the Panel on Discrimination and Other Grievances which recommended on 21 February 1992, to the Director-General of the United Nations Office in Geneva, as follows: "4. Given that [the Applicant's] performance evaluation reports are good and that his daughter is required to continue her medical treatment in Geneva, the Panel regrets that [the Applicant's] re-

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quest of extension of his contract was denied. The Panel recommends that the administration of UNCTAD reconsiders its decision and grants [the Applicant] an extension up to December 1992." On 23 January 1992, the Applicant requested the Secretary-General to review the decision not to extend his fixed-term appointment beyond 31 March 1992. On 27 February 1992, the Acting Chef de Cabinet advised the Applicant that a further extension of his appointment would depend on a decision by the Applicant's department and that the Panel on Discrimination and Other Grievances' recommendation had been referred to UNCTAD. On 16 March 1992, the Director, Staff Administration and Training Division, OHRM, after consultations with UNCTAD, informed the Applicant as follows: "You entered the service of the Organization on 8 September 1985, and were given a fixed-term appointment on secondment from the USSR Government. Since that time, you have served in the Shipping Division of UNCTAD at the P-3 level. Your successive performance evaluation reports ('PER') contained mostly 'B' ratings, with a few 'A's' and 'C's' (the latter in your first PER). Those ratings reflected the assessment made by your immediate supervisor at the section level. In both PERs, the overall rating was 'A good performance', reflecting the Shipping Division Director's assessment of your performance in relation to that of other P-3 staff in the Division and in UNCTAD in general. I note that you did not rebut any of those PERs. Your contractual status was reviewed in February 1991. By that time, you had served for more than five years, and were eligible to be considered for career appointment in accordance with General Assembly resolution 37/126. Due note was taken at the time of the recent developments on the question of secondment from government service. The UNCTAD Advisory Panel on Personnel Section recommended that your appointment be extended through September 1991 after a careful evaluation of your performance and of the needs of the service. The recommendation was reviewed and approved by the Secretary-General of UNCTAD and OHRM. The communication from the USSR Ministry of Merchant Marine, dated 27 March 1991, which you mention in your letter to the Secretary-General, played no role in the decision. All this was explained to you in the course of your meeting with [the Chief, Personnel Service] on 14 August 1991. On 23 August 1991, you requested a 'short-term extension' of your contract in order for you to complete the preparation of a report on the Convention on a Code of Conduct for Liner Conferences in

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the Nineties. You pointed out that such an extension would allow your daughter to complete her medical treatment and would allow you to find a suitable job in your country. You stated that it was your 'firm decision' to return to your home country upon the expiration of your contract. [The Chief, Personnel Service] sought confirmation of the requirements of your daughter's medical treatment. After being informed that a treatment of approximately six-month duration was required, OHRM concurred with UNCTAD's recommendation that you be given a final extension of your fixed-term appointment through 31 March 1992 on humanitarian grounds. You are now submitting a new medical certificate, dated 9 January 1992, indicating that your daughter's treatment requires her continuing presence in Geneva for at least one year. The Organization fully appreciates your concern in that respect but you must understand that such personal considerations cannot be the determining factor in making staffing decisions except on a limited, short-term basis. The exigencies of service must take precedence. However, in view of the recruitment freeze recently announced by the Secretary-General, and in view of the fact that you have not yet completed your main assignment (i.e., your work for the Review of Maritime Transport), I am pleased to inform you that the Secretary-General has decided to extend your fixed-term appointment until 31 December 1992. This is a reasonable period during which you should be able to complete that assignment. I wish to underline that this is a final decision, and that no further requests for extension, on any ground, will be entertained." The Applicant's appointment was extended through 31 December 1992, the letter of appointment stating as a "special condition" that the Applicant was on secondment from the Government of the USSR. On 2 and 23 April 1992, the Applicant wrote to the Chief, Personnel Administration Section that he had never served as an official of any other State than the USSR and "that in signing the letter of appointment I understand that the reference to secondment is without prejudice to my current or future contractual status". On 23 April 1992, the Applicant lodged an appeal with the Geneva Joint Appeals Board (JAB). The JAB adopted its report on 8 December 1992. Its conclusions and recommendations read as follows: "37. In spite of the fact that the Appellant's fixed-term appointment has been renewed on several occasions, the Panel concludes that the surrounding circumstances cannot be held as having

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created a legitimate expectancy of its renewal or conversion to a career appointment. 38. The Panel further concludes due process has been respected before the contested decision was reached. 39. The Panel finally concludes that the evidence available to the Panel does not substantiate the allegation that the contested decision is tainted with prejudice, abuse of authority or extraneous factors. 40. While the Panel is not in a position to judge the validity of the reorientation exercise in UNCTAD's Shipping Division, it notes that the Appellant's overall performance has been rated as good and that he maintains an excellent working relationship with his supervisors and colleagues. The Panel also perceives that the work programme of the Shipping Division after the reorientation exercise is, apparently, not so radically changed as to render the Appellant's skills completely redundant. 41. ... The Panel was given a ... medical certificate attestfing] that, thanks to the treatment she is receiving in the Geneva Cantonal Hospital and at her home, the health of the Appellant's daughter is improving but that it is indispensable that she continues to receive this treatment for two more years. 42. In view of the foregoing and based on humanitarian grounds, the Panel urges that, as an exceptional measure, the latest medical certificate mentioned in the foregoing paragraph be taken fully into consideration and recommends that the Appellant's appointment be extended in order for his daughter to follow her medical treatment. 43. The Panel makes no further recommendation in support of this appeal." On 15 December 1992, the Director of Personnel transmitted to the Applicant a copy of the report and informed him, inter alia, as follows: "The Secretary-General wishes to emphasize,..., that personal reasons cannot be the determining factor in personnel decisions except on a limited, short-term basis. In your case, the extension of your contract for 15 months was sufficient for satisfying such humanitarian concerns. The Secretary-General, therefore, cannot accept the Board's recommendation for extending your appointment and has decided that your contract will not be extended beyond 31 December 1992, the date on which your current contract expires." On 1 March 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are:

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1. The decision not to renew his fixed-term appointment was discriminatory, arbitrary and tainted by extraneous factors, namely the continuous pressure of the Government of the USSR on UNCTAD to prevent his further employment. 2. The Applicant had an expectancy of renewal of his appointment. Following five years of good service, he should have been given every reasonable consideration for a career appointment, according to General Assembly resolution 37/126. Whereas the Respondent's principal contentions are: 1. The Applicant has not established the validity of his allegations that the decision not to renew his fixed-term appointment was discriminatory. 2. The Applicant had neither the right to nor any expectancy of continued employment beyond his fixed-term appointment. 3. The Applicant received reasonable consideration for a career appointment pursuant to General Assembly resolution 37/126 of 17 December 1982. The Tribunal, having deliberated from 30 June to 14 July 1994 in Geneva, and from 12 October to 4 November 1994 in New York, now pronounces the following judgement: I. While the Respondent asserts that the decision not to extend the Applicant's appointment or to grant him a career appointment was not due to alleged pressure arising from the Applicant's purported status of secondment, the Tribunal is of the view, nevertheless, that it should deal briefly with the question of whether the Applicant was on secondment. This should be done because the question of secondment was, at the very least, a backdrop against which the entire case was played out. II. The issue of secondment was dealt with by the Tribunal, in the recent past, in Judgement No. 482, the case of Qiu, Zhou and Yao (1990). The main criteria for secondment set out in this judgement are not fulfilled in the present case. Details concerning the nature and conditions of the Applicant's employment with the Government of the USSR are not given in the letters of appointment or, indeed, in any other document. The Administration has not produced any agreement concluded with the Government of the USSR, nor has it produced any document in which the Applicant's situation is defined in writing or the conditions of his secondment specified. The Tribunal was not provided with any details concerning the Applicant's post in his own country or of the conditions governing his re-integration into such post. If an agreement on his secondment did exist, it was not brought to the Applicant for his consent. Although there are references in various letters to the re-employment of the Applicant in the

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Ministry of Merchant Marine, the references are too vague to be of consequence and, indeed, there is disagreement as to whether the Applicant was offered such re-employment. It is difficult, if not impossible, to imply from the use of the term "secondment" in this case that the Applicant, posted away, as he was, from his establishment of origin, had the right to revert to employment in that establishment at the end of the period of secondment, with concurrent rights such as promotion and retirement benefits. III. Because of its finding in paragraph II supra, the Tribunal does not have to deal with the submission of the Applicant that the Ministry of Merchant Marine of the USSR, for which he worked in 1985, no longer exists. IV. The Applicant first entered UN service in 1985 on a two-year fixed-term contract which was renewed for a three year period through 1990. He was then accorded further extensions, through December 1992. These latter extensions were granted on humanitarian grounds and because of the necessity to conclude certain work projects. The Applicant was given an UNPROFOR appointment in 1993. His claims in relation to this matter need not concern the Tribunal. Indeed, they were not part of the JAB's deliberations. V. The thrust of the Applicant's complaint is that he was not accorded every reasonable consideration for either a long-term extension or a career appointment in accordance with General Assembly resolution 37/126, following the completion of five years of continuing good service. This failure arose, in the Applicant's submission, from pressure exerted on the UNCTAD Administration by officials of the USSR Ministry of Merchant Marine (Morflot). The Applicant says that, from mid-1990, these officials sought his immediate replacement by another Morflot specialist, through oral and written requests. There is no doubt that the Ministry sought to influence UNCTAD. This was done by letters dated 11 September 1990,5 December 1990 and 25 March 1991. The letter of 11 September 1990 submitted six names as replacements for the Applicant and a colleague. The letter of 5 December 1990 contained an expression of the intention of the Soviet authorities not to support the prolongation of the further work of either the Applicant or a colleague in the UNCTAD Secretariat after the expiration of their contracts. The letter of 25 March 1991 indicated that there should be an infusion of new blood into UNCTAD and that the Applicant and a colleague should be replaced. Indeed, there was also a letter, as late as 30 August 1991, suggesting, yet again, a candidate to replace the Applicant. There were also oral representations. Mr. Victor Busuttil, the Chief of Personnel, UNCTAD, informed the Applicant that Ministry of Merchant Marine officials had advised senior UNCTAD officials that they had made plans to re-absorb him.

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VI. The Respondent contends that the decision not to grant the Applicant a career appointment was taken by the Administration on the recommendation of the Advisory Panel on Personnel Questions which stated that "The Panel's review of the contractual status of these members was, accordingly, without prejudice to the question of secondment itself, which was not within the Panel's purview." The Panel recommended a three-year extension for the Applicant's colleague, and an extension until 30 September 1991 for the Applicant. According to the Minutes of the meeting of the Advisory Panel on Personnel Questions, the Panel came to these conclusions having "evaluated the different recommendations concerning the periods of extension and [having concurred] with the Division that the difference reflected different levels of competence and skill requirements." In reply to a question put by the Tribunal, the Respondent has been unable to provide documentation comparing the different levels of competence of the Applicant and his colleague or different skill requirements. The Minutes of the meeting refer to "an oral presentation by, and discussion with Mr. Bouayad [Director of the Shipping Division]." The Tribunal finds it disturbing that no supporting documents are available on such a central issue. VII. The Respondent accepts that, after five years of continuing good service, staff are entitled to every reasonable consideration for a career appointment. However, he notes that the fact that staff are entitled to such consideration does not mean that every staff member, whether or not on secondment, must be retained. He refers to the imperative of granting a career appointment only to staff of the highest standard of competence. The Respondent also refers to the conclusion of the Joint Appeals Board, that the decision in relation to the Applicant was motivated by an assessment of the Applicant's performance in comparison with that of his peers. VIII. The Tribunal recognizes that administrative and operational complexities ensued for the Secretary-General following the judgement in Qiu, Zhou and Yao. It considers that the Secretary-General, in setting up the Advisory Panel on Personnel Questions to assist him in dealing with the kind of situation revealed in the Applicant's case, showed good faith in attempting to observe the principles set forth in that judgement. It is necessary, however, to examine the composition of the Advisory Panel and because of the allegation of influence on the part of the Ministry officials, the state of knowledge of the members of the Panel. Mr. Busuttil, the Chief of Personnel, Administrative Section, Mr. Bouayad, Director of the Shipping Division and Mr. Civili, Director for Programme Support and Management Services, were clearly aware of the Soviet intervention in the Applicant's case as they were centrally involved in the negotiations for an extension of his appointment. Mr. Krasnov, Director, International Trade Division, and a Soviet citizen who

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was also a member of the Panel, in a written submission attached to the Applicant's written observations on the Respondent's answer, states that Mr. Bouayad's oral presentation to the Panel was "based on such arguments as the request of the USSR Mission to replace [the Applicant] with another Soviet candidate." However, the other members of the Panel, in response to questions put by the Tribunal, said they were not aware of any attempted influence by the Soviet Government. It is unclear whether Mr. Krasnov's statement refers to what was actually said in the oral presentation of Mr. Bouayad, or what he believes was the motivation behind Mr. Bouayad's recommendations. The Tribunal finds that the responses of the other Panel members tend to suggest the latter interpretation. The question, then, is whether the participation of the aforementioned persons, who had knowledge of the intervention of the Soviet Government, invalidated the proceedings of the Panel and its conclusions. IX. The Applicant would have the Tribunal accept that UNCTAD acceded to pressure, although he now asks that the Tribunal conclude that the UNCTAD Administration withheld from the Panel important information concerning the growing pressure exercised by the USSR Government on the UNCTAD Secretariat. He says that while the Panel may have been unaware of the Soviet intervention, the Administration's recommendation to the Panel to extend the Applicant's appointment only to the end of September 1991, fully coincided with the wishes of the Soviet Government. There is no dispute that the Panel had before it a memorandum from Mr. Bouayad of 10 August 1990, suggesting an extension of the Applicant's appointment by one year and setting out reasons for this extension. There is another memorandum of 8 October 1990, from Mr. Vogel, the Deputy Director of the Shipping Division, suggesting an extension for the Applicant and his colleague, of one year. This memorandum makes reference to the Soviet Mission's interest in the matter. It is unclear whether this memorandum was before the Panel, although it would appear that it was not, given the nature of the replies of the Panel members to the Tribunal's questions and despite the Respondent's conflicting submissions on this point. The Tribunal notes that this memorandum was introduced in the record by the Respondent specifically in response to a request by the Applicant for the documents submitted to the Panel on his case. In response to a subsequent question by the Tribunal, the Respondent indicated uncertainty as to whether the document was, in fact, distributed to members of the Panel. This is a most unsatisfactory way of presenting the Respondent's case to the Tribunal, particularly in light of the significance of the document in determining whether the Panel members were aware of the Soviet intervention on the Applicant's case. The conflicting information given to the Tribunal suggests the possibility that

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the memorandum may have been an influential factor in the decision relating to the Applicant. There is also a memorandum of 24 January 1991, to Mr. Busuttil from Mr. Bouayad, on the contractual status of the Applicant's colleague, containing the proposal to extend his appointment for three years and setting forth the grounds for the proposal. The Applicant is unhappy about the method used in making known to the Panel the facts of his case, as opposed to the way in which his colleague's case was presented. The Applicant says that the anomalies in the presentation by the UNCTAD Administration of the two cases, the fact that there was a written recommendation in his colleague's case as opposed to an oral presentation in his own case, put him at a distinct disadvantage and led to a foregone conclusion. The Applicant complains that, in the case of another Soviet staff member in respect of whom a similar request for non-extension was made by the Government, a completely different course was adopted. The Applicant complains that he did not receive the same consideration of his legitimate career interests. The Applicant's argument, therefore, is that those who presented the case to the Panel, conscious, as they were, of the Soviet Government's views, presented it in such a way that he would not be considered for the kind of appointment which he felt was his due. X. The Tribunal, having examined all the evidence, notes that the motivation behind the recommendation made to the Panel in the Applicant's case might well be subject to question as the officials who made the recommendations had been in direct contact with the Soviet authorities. However, the Tribunal does not find that there is sufficient evidence to conclude that the Panel's deliberations and ultimate recommendation were decisively influenced thereby. XL Indeed, there is evidence to the contrary. For, in the cases of the two other Soviet staff members referred to above, the Soviet Government made similar interventions and yet their appointments were renewed. The Applicant has not produced any reason as to why the Administration would, in that regard, improperly treat him differently from these two. It is correct, of course, that the Applicant's case was dealt with against a background in which secondment was a factor for the Administration (although not for the Panel). If this factor influenced the Administration in the Applicant's case, why not in the other cases? Further, if the Applicant had been the object of discrimination, it would be difficult to explain the opportunities afforded him by the Respondent, so that his ill child could be cared for. XII. While the Tribunal rejects the main arguments in the Applicant's case, some of his concerns are valid. The Director of Staff Admin-

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istration and Training Division, OHRM, noted an apparent discrepancy in his performance evaluation reports and expressed her concern that the case was discussed with the Soviet Government outside the channels set up for the review of the contractual status of staff members whose letters of appointment indicated that they were on secondment. These are legitimate concerns. So are the apparent contradictions between work performance and re-orientation of work as the reasons for the decision not to extend his appointment. These circumstances, as well as those in paragraph IX above, and the absence of essential documentation referred to in the last sentence of paragraph VI above, compel a finding of procedural irregularities. As these caused injury to the Applicant, he is entitled to compensation. XIII. Lastly, the Applicant refers to the ILO case of Reznikov (Judgement No. 1249). There is, however, a fundamental distinction between that case and the Applicant's, in that in the former case, the Director-General felt himself bound by the attitude of the Government of the USSR. XIV. For the foregoing reasons, the Tribunal orders the Respondent to pay to the Applicant nine months of his net base salary as at the time of his separation from the service of UNCTAD. XV. All other pleas are rejected. (Signatures) Jerome ACKERMAN Vice-President, presiding

Hubert THIERRY Member

Francis SPAIN Member

R. Maria VlCIEN-MlLBURN Executive Secretary

New York, 4 November 1994

Judgement No. 667 (Original: French) Case No. 740: Essaied

Against:

The Secretary-General of the United Nations

Application of aformer staff member of the Office of the United Nations High Commissioner for Refugees (UNHCR) for a ruling that his early retirement/agreed termination was imposed on him and for compensation for financial loss sustained thereby and for the hardship suffered.—Request for costs.

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The Joint Appeals Board noted that no up-to-date performance evaluation report had been made on the Applicant and, while agreeing that the agreed termination agreement freed the Organization from allfurther obligations, considered that this did not apply to any rules infringed by the Administration.—It recommended a symbolic compensation of six weeks of salary and recommended also that the Applicant be provided with a certificate of service.—Recommendations accepted. Consideration of the circumstances in which the Appointments, Promotions and Postings Board of UNHCR did not recommend the Applicant's promotion and in which the Applicant formally accepted his early retirement with termination indemnity at the highest level compatible with the Staff Regulations.—The Tribunal concurs with the view of the Joint Appeals Board, accepted by the Secretary-General, concerning the lack of information provided to the Appointments, Promotions and Postings Board and considers that the absence of formal evaluations of the Applicant's performance was contrary to the relevant provisions and prejudicial to the Applicant.—It considers that the compensation awarded to the Applicant on this account represents a reasonable assessment of the injury sustained.—The Tribunal considers, on the other hand, that the Applicant accepted voluntarily his early retirement and that the circumstances of this acceptance make it impossible to maintain that the pressure exerted on him was such as to make this agreement null and void.—The Applicant accepted his early retirement with an appropriate indemnity and an undertaking not to contest the decision on this issue. — The application submitted to the Tribunal was in violation of this formal undertaking; the Tribunal disapproves of such action and, in accordance with its jurisprudence in Judgement No. 547 (McFadden) is unable to recognize to the Applicant a right which he himself voluntarily waived. Application rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Mikuin Leliel Balanda; Mr. Hubert Thierry; Whereas, on 4 July 1993, Abderrazak Essaied, a former staff member of the Office of the United Nations High Commissioner for Refugees (hereinafter referred to as UNHCR), filed an application requesting the Tribunal, inter alia: "— To rule that, the Applicant's supervisors, by not preparing periodic performance evaluation reports, violated staff rule 112.6 and the administrative issuance concerning the performance evaluation system;... — To rule that the decision of the Appointment and Promotion Board was irregular, as it was based on non-recommendation [by the Chief of the Bureau], which in itself was improper, and on the pending assignment to Lesotho, which in fact was a disguised demotion; — To rule that the early retirement/agreed termination was imposed on the Applicant through dilatory manoeuvres on the part of the Administration, that it was thus vitiated by lack of concurrence and that, accordingly, it is null and void;

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— To rule that the refusal of UNHCR to provide him with a certificate stating the quality of the work performed by him and his professional conduct in the performance of his duties from 1981 to 1990 constitutes a flagrant violation of the Staff Regulations; — To rule that UNHCR, by not challenging the conclusions of the Joint Appeals Board and agreeing to award the Applicant a 'symbolic' sum equivalent to the sum of six weeks salary, has clearly acknowledged that it did not observe the terms of his contract;... Accordingly, to order UNHCR: — To award [the Applicant] compensation equivalent to the total financial loss sustained by him as a result of his forced separation before his legal date of retirement (May 1993) and to restore his rights as if he had served during such period and, accordingly, to award him damages in the amount of US$151,745; — To award him the amount of US$4,700 as reimbursement of counsel's fees ...; — To issue to him a certificate stating the quality of the work performed by him and his professional conduct during the entire period of his service with UNHCR, including the period 1981-1990; — In addition, the Applicant requests the Tribunal to recognize the hardships which the Administration has imposed on him through its repeated machinations and, accordingly, to order the Administration to award him, as damages, additional compensation in the amount of US$60,000." Whereas the Respondent filed his answer on 5 July 1994; Whereas the Applicant filed written observations on 14 October 1994; Whereas the facts in the case are as follows: The Applicant entered the service of UNHCR on 19 September 1977, on a one-year fixed-term appointment, as a Programme Officer, at the P-4 level. His appointment was repeatedly renewed for fixed-term periods. With effect from 19 September 1981, the Applicant was transferred from UNHCR Headquarters in Geneva to the Branch Office in Burundi, as Representative. On 1 August 1983, his appointment was converted to a permanent appointment. He was promoted to the P-5 level on 1 July 1984, and transferred to Zaire as UNHCR Regional Representative. In this capacity the Applicant received a special post allowance (SPA) at the D-l level, with effect from 1 January 1985. The Applicant was then appointed UNHCR Regional Representative in Bahrain, with effect from 1 February 1987, and remained at the P-5 level with an SPA at the D-l level. The Applicant served in this post until his separation from service on 7 December 1990.

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In a telex dated 27 January 1990, the Applicant informed his supervisor, the Chief of the Regional Bureau for South West Asia, North Africa and the Middle East (SWANAME), that he had learned that two staff members had undertaken a mission to Beirut on 5 December 1989 without informing him. The Applicant asked the Chief of the Bureau to remind the two staff members that such action must be coordinated with and approved by him, the Regional Representative. In a further telex to the Chief of the Bureau, dated 30 January 1990, the Applicant confirmed that no authorization had been given for the mission undertaken to Beirut by the two staff members. In a reply dated 1 February 1990, the Chief of the Regional Bureau, SWANAME, stated, "I do not wish to compare the two versions which you yourself have given us", noting that one of the staff members involved had claimed that her mission to Beirut had been "covered" by the Applicant. The memorandum noted as "regrettable" the Applicant's "inability to make yourself heard by your colleagues" and concluded that the fault was "shared by both sides". Attached was a copy of a memorandum from the Chief of the Bureau to the two staff members involved, reprimanding them for the mission. On 19 February 1990, the Applicant wrote to the Chief of the Regional Bureau, SWANAME, reaffirming that he had not authorized the mission to Beirut, and that he was not even aware of it until after it had taken place. On these grounds, he rejected the " 'verdict' of shared blame" and requested that one of the staff members involved be asked to write a report on the incident, to be considered along with a report from him, before judgement was passed. In doubting his version of events, the Applicant wrote to the Chief of the Bureau, "you question my credibility and impair my professional dignity". In this conduct, he stated, "you have exceeded your authority". The Deputy Chief of the Bureau wrote to the Applicant on 27 February 1990, conveying that the Chief of the Bureau had asked him to return the Applicant's memorandum of 19 February 1990, and to relay that "he could accept neither its tone nor its content". On 27 April 1990, the Administration issued circular IOM/46/90, soliciting recommendations for promotion from all UNHCR supervisors for the 1990 annual session of the Appointment and Promotion Board (APB). In the circular, supervisors were requested to bear in mind the financial situation of the Organization and to exercise "maximum restraint and careful judgement" by making recommendations "only in favour of the most outstanding staff members". The circular provided that seniority was not to be considered in itself as a justification for recommendation, and that the level of the post occupied by the staff member as well as the fact that he or she had occupied posts at a higher level in the past were im-

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portant elements to be taken into account. The deadline for submissions of recommendations for promotion was set as 25 May 1990. The Chief of the Bureau, SWANAME, did not recommend the Applicant for promotion. The Applicant's case was reviewed at the session of the APB held from 11 to 21 June 1990 and he was not recommended by the Board for promotion. On 14 July 1990, the Applicant filed a recourse requesting a review of his non-recommendation by the Board. In a letter dated 14 August 1990, the Chief, Recruitment, Career Development and Placement, UNHCR, informed the Applicant that the Board reviewed his case and noted that "in the absence of a recommendation and pending a decision on your next assignment, they were unable to retain your name". On 15 August 1990, the Applicant was sent a performance evaluation report (PER) for the period from September 1986 to July 1990, with a request to complete and return it within one week. On 21 August 1990, the Applicant wrote to the Chief of the Bureau, SWANAME, expressing his dissatisfaction with his non-promotion, which he attributed to the absence of a recommendation and the absence of a PER. He requested an explanation as to why he had not been recommended for promotion. In a reply dated 25 September 1990, the Chief of the Bureau stated that he had followed the instructions in circular IOM/46/90. In the meantime, by telex dated 30 July 1990, the Acting Director, Human Resources Management Division, informed the Applicant that he had been appointed UNHCR Representative in Maseru, Lesotho, a P-5 post with no entitlement to an SPA at the D-l level. By telex dated 6 August 1990 to the High Commissioner, the Applicant stated that he was "not in a position to accept post proposed to him in Lesotho" and requested a meeting with the High Commissioner to explain "the degree of divergencies" between him and his supervisor. In a telex dated 9 August 1990, UNHCR Geneva informed the Applicant that the mission was not authorized and the appointment of the Applicant to Lesotho was "firm", asking him to make arrangements to proceed there by 17 September 1990. In a letter dated 10 August 1990, the Applicant informed the High Commissioner that although the mission had not been authorized, he would be in Geneva from 12 to 15 August and hoped to have a meeting with him to discuss the proposed appointment. In Geneva, the Applicant had a meeting with the Deputy High Commissioner who, according to the Applicant, told him that if he refused to accept the Lesotho posting, he would have to leave the Organization. On 2 September 1990, the Applicant cabled the Director, Division of Human Resources Management, expressing his continued hope that the High Coriimissioner would reconsider his case and give him responsibilities at the D-l level. He also stated:

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"... if overall situation does not ensure availability of posts at D-l level and regardless of the outcome of my appeal to the recourse committee, I would be considering early retirement for staff members who are 55 years of age ...". On 10 September 1990, the Director, Division of Human Resources Management, replied, informing the Applicant that UNHCR was not in a position to offer him an alternative posting at the D-1 level and requesting "urgent clarification" on his assignment to Lesotho or formal confirmation that he wished to be considered for early retirement. By cable of 24 September 1990, the Applicant confirmed his non-acceptance of the post in Lesotho and requested specific details concerning early retirement. In cables dated 25 and 28 September 1990, UNHCR Headquarters provided this information to the Applicant. In a memorandum dated 8 October 1990, the Applicant formally accepted an agreed termination. In return for termination indemnities pursuant to the Staff Regulations, the Applicant undertook not to contest the agreed termination of his appointment. He further agreed that the Organization would have no further obligation, financial or otherwise, upon separation, and that he would not be eligible for employment with the Organization for a period of three years following separation. The High Commissioner's concurrence to the agreed termination was confirmed to the Applicant in a memorandum from the Director, Division of Human Resources Management, dated 5 November 1990. In accordance with the terms of the agreed termination, the Applicant separated from service on 7 December 1990. In the meantime, on 19 September 1990, the Applicant submitted a recourse to the APB against his non-promotion, stating that his non-recommendation had been motivated solely by a personal difference between him and his supervisor over the incident involving the two UNHCR staff members who had undertaken an unauthorized mission to Beirut. On 26 November 1990, the Applicant wrote to the Secretary-General requesting a review of the administrative decision relating to his non-promotion. In a reply dated 25 January 1991, the Applicant was informed that there was not yet an administrative decision to appeal because the outcome of his recourse to the Board was still pending. At the Board's recourse session, held from 14 to 24 January 1991, it was decided to maintain the recommendation made at the regular promotions session. This recommendation was communicated to the Applicant in a letter dated 30 May 1991 from the Chief, Recruitment, Career Development and Placement Section. On 11 March 1991, the Applicant lodged an appeal with the Geneva Joint Appeals Board (JAB) against the administrative decision to accept the recommendation of the APB, i.e., not to promote him to the D-l level.

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The JAB adopted its report on 11 March 1993. Its considerations and recommendations read: "Considerations 22. ... the Panel noted that not only was there no up-to-date PER, but there was not even a note in the Appellant's file on his performance. These administrative omissions had deprived the APB of the basic tools necessary to undertake an objective assessment of the Appellant's work performance and to decide whether the Appellant merited promotion . .. 23. The completion of performance evaluation reports at regular intervals would also have provided the Appellant with the opportunity to be aware of any negative assessments on his performance by his supervisor... The Appellant in fact appeared to have believed that he was performing good work. Under such circumstances, the Appellant was left with the impression that his non-promotion was due to prejudice on the part of his supervisor and the UNHCR Administration, taking into account the other incidents which had resulted in misunderstandings between himself and his supervisor. 24. The Panel noted that the UNHCR Administration had offered the Appellant a post at the P-5 level, involving an effective demotion. It is understandable that the Appellant was reluctant to assume such a post. The circumstances may then have exerted pressure on the Appellant to accept the early retirement package,... 25. The Panel has taken into account that the agreed termination arrangement provides that the Organization had no further obligation, financial or otherwise, upon separation but considered that this would not relate to any rights in respect of rules infringed by the Administration. Recommendations 26. In view of the consequences resulting from the infringement of the Appellant's rights, the Panel recommends that he be granted a symbolic compensation equivalent to the sum of six weeks of his salary at the time of his separation. 27. The Panel also recommends that the Appellant be provided with a document evaluating his service up to his date of termination, which would be of use to him with respect to future employment." On 14 April 1993, the Under-Secretary-General for Administration and Management transmitted to the Applicant a copy of the JAB report and informed him as follows:

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"The Secretary-General has re-examined your case in the light of the Board's report and has decided to accept the Board's recommendation that you be granted compensation for the irregularities in connection with the preparation of your performance evaluation reports in the amount of six weeks of your salary at the rate in effect at the time of your separation. You shall also be provided with a document evaluating your service up to its termination." On 4 July 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The absence of an updated PER violated staff rule 112.6 and the applicable administrative issuances. 2. The non-recommendation of the Applicant by his supervisor for promotion was improperly motivated by personal differences arising from an incident involving the unauthorized mission of two staff members to Beirut. 3. The decision of the APB not to recommend the Applicant for promotion was irregular, as it was based on the improper absence of a recommendation for promotion and on the Applicant's pending assignment to Lesotho, which was in fact a demotion and a disguised sanction. 4. The agreed termination was imposed upon the Applicant and is, accordingly, null and void. Whereas the Respondent's principal contentions are: 1. Termination of the Applicant's appointment following the agreed termination was consistent with applicable provisions of the Staff Regulations and did not violate the Applicant's rights. 2. The agreed termination was voluntarily agreed to by the Applicant. The Applicant's claims violate the terms of the agreed termination, in which the Applicant expressly undertook not to contest the decision to terminate his appointment or any decision related thereto. The Applicant's claims are thus unreceivable. 3. The Applicant had no right to promotion. 4. The Applicant had no right to re-employment during three years following the agreed termination. The Tribunal, having deliberated from 13 October to 4 November 1994, now pronounces the following judgement: I. The Applicant served in the Office of the United Nations High Commissioner for Refugees (UNHCR) from September 1977 to December 1990. During this period, he assumed major responsibilities, especially as UNHCR Regional Representative in Zaire at the P-5 level, his salary being supplemented by a special post allowance (SPA) at the D-l

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level. He was then posted to Bahrain on the same terms. During this entire period, the Applicant received favourable evaluations. II. Nevertheless, not having been proposed by his supervisor for promotion to the D-l level, the Applicant did not receive a recommendation for promotion at the session of the Appointment and Promotion Board (APB) held from 11 to 21 June 1990, and therefore was not promoted to this level. At the same time, he was offered a posting as UNHCR Regional Representative in Lesotho, a P-5 post with no entitlement to an SPA at the D-l level. III. Believing that a posting to Lesotho on these terms would be an effective demotion, the Applicant explained that he could not accept it and that, accordingly, he was considering early retirement in accordance with the provisions applicable to staff members who were 55 years of age. Having been notified by UNHCR that it was not in a position to offer him a post at the D-l level, the Applicant formally accepted early retirement, accompanied by termination indemnity payments calculated at the highest level consistent with the Staff Regulations. In return, the Applicant formally undertook, in a memorandum dated 8 October 1990, not to contest the decision of UNHCR to terminate his appointment. It was further stipulated that he would not be eligible for employment with the United Nations for a period of three years following separation. IV. Prior to the agreed termination, the Applicant had contested the decision of the APB not to recommend him for promotion to the D-l level. In this connection, he maintained that his supervisor had declined to recommend him out of animosity arising from a difference over a mission involving his staff members, and that, in the absence of up-to-date PERs, the Board had been misinformed. Nevertheless, at its session held from 14 to 24 January 1991, the Board confirmed its initial recommendation. V. The Joint Appeals Board (JAB), with which the Applicant also lodged an appeal, subsequent, however, to his agreed termination, ruled in his favour with regard to the recommendation of the APB. It considered that in the absence of updated PERs, the APB had, in fact, been misinformed, and that the posting to Lesotho which had been offered to the Applicant was an effective demotion. Nevertheless, the terms used by the JAB to refer to the circumstances of the Applicant's early retirement are more nuanced. The Board believed that the "circumstances" might have exerted "pressure" on the Applicant to accept early retirement. Accordingly, the Board recommended that he be granted "symbolic" compensation equivalent to the sum of six weeks of his net salary at the time of his separation, and that he be provided with a document evaluating his service which would be of use to him with respect to future employment.

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The Secretary-General having accepted this recommendation by the JAB, the envisaged compensation was awarded to and received by the Applicant. VI. The Applicant requests the Tribunal to take a position on the various incidents recounted above and to award him much higher indemnity payments than he has already received. Describing his early retirement, to which he agreed, as "forced separation", he demands to be treated "as if he had served" until normal retirement age and to receive the appropriate remuneration. VII. The Respondent considers principally that the application in its entirety is unreceivable because of the formal undertakings entered into by the Applicant when he requested and agreed to early retirement with its concomitant settlements and indemnities. The Respondent also believes, secondarily, that the Applicant has already been compensated for the effects of the irregularities noted by the JAB. VIII. The Tribunal shares the view of the JAB and the Secretary-General, who accepted the Board's recommendation concerning the lack of information available to the APB called upon to decide on the Applicant's case. In this respect, the absence of formal evaluations of the Applicant's performance for nine years was contrary to the relevant provisions of the Staff Rules and prejudicial to the Applicant. Moreover, while it is inaccurate to state that the offer to appoint the Applicant to the post of UNHCR Regional Representative in Lesotho would have constituted a demotion in the exact sense of the term, it is none the less true that this post did not have the same attraction or advantages for the Applicant as the posts which he had occupied earlier. Nevertheless, the Applicant has already been compensated for the prejudicial effects of the irregularities committed by the APB as noted by the JAB. In this connection, the Tribunal believes that the damages awarded to the Applicant and received by him represent a reasonable assessment of the injury sustained. IX. On the other hand, the Tribunal believes that the Applicant is not entitled to contest his early retirement or to claim compensation because of it. Early retirement under the terms of an agreement negotiated with the Administration cannot, in the event, be identified with "forced separation" or termination. The "circumstances" of such retirement make it impossible to maintain that pressure which can legally be regarded as such, and which would have rendered the agreement null and void, was exerted on the Applicant. While it is true that the post of UNHCR Regional Representative in Lesotho which was offered to him did not entail the same material advantages as those which he had occupied previously, it was fully of his own accord that the Applicant, who was not threatened with termination, chose to request early retirement rather than to accept this

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post. Furthermore, his early retirement at his request gave rise to an agreement with the Administration, accompanied by an indemnity, accepted by the Applicant, at the highest level consistent with the Staff Regulations. Lastly, the Applicant endorsed the clause of this agreement whereby he undertook not to contest the decision of UNHCR that would ensue. It was therefore in violation of this formal undertaking that the application was submitted to the Tribunal. The Tribunal disapproves of such an action and finds itself unable to recognize on the Applicant's part a right which he himself voluntarily waived. In so doing, the Tribunal conforms to its jurisprudence as set forth in its Judgement No. 547, McFadden (1992). X. For the foregoing reasons, the Tribunal rejects the application in its entirety. (Signatures) Samar SEN

Mikuin Leliel BALANDA

President

Member

Hubert THIERRY Member New York, 4 November 1994

R. Maria VICIEN-MILBURN Executive Secretary

Judgement No. 668 (Original: French) Case No. 711: Coulibaly Sy

Against: The Secretary-General of the United Nations

Application of a former staff member of the United Nations Children s Fund (UNICEF)for a rescission of decision of dismissal, for reinstatement or payment of termination indemnities and for compensation for the damage suffered.—Case pursued after Applicant's death by his heirs. The Joint Disciplinary Committee, after thorough review of the case, found that the Applicant had on several occasions demonstrated evident bad faith and decided to allow UNICEF Headquarters to take the necessary disciplinary action. —- Decision to dismiss the Applicant, for improper conduct, with immediate effect and without any termination indemnity nor compensation in lieu of notice. The Tribunal takes into consideration the resumption of the case, following the Applicant's death, by his eldest daughter and decides to consider the merits of the case. The Tribunal recalls the circumstances in which the Applicant was dismissed, following the discovery of a number of irregularities.—Respondent's contention that the con-

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tested decision was taken in the normal exercise of discretionary authority under staff regulation 10.2 and staff rule 110.3.—The Tribunal notes that, in accordance with the provisions of paragraph (c) of annex III to the Staff Regulations and of staff rule 110.3(a)(viii), payment of a termination indemnity and of compensation in lieu of notice was refused to the Applicant.—It reaffirms its earlier decisions whereby, in disciplinary matters, the Administration has discretionary authority with regard to the evaluation of the conduct with which the staff member is charged and to the disciplinary measures to be imposed.—Such decisions cannot be questioned by the Tribunal unless it is proved that the decision was motivated by considerations external to the interests of the service, such as prejudice or discrimination, or unless the staff member did not enjoy all the requisite procedural guarantees. — The Tribunal notes that the Applicant has not proved that he was deprived of the requisite guarantees and that his dismissal was based on considerations external to the interest of the service and concludes that the Administration was acting in the legitimate exercise of its discretionary authority. Application rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Luis de Posadas Montero, Vice-President, presiding; Mr. Mikuin Leliel Balanda; Mr. Hubert Thierry; Whereas, on 22 May and 30 July 1991, Coulibaly Sy, a former staff member of the United Nations Children's Fund (hereinafter referred to as UNICEF) filed an application which did not fulfil all the formal requirements of article 7 of the Rules of the Tribunal; Whereas, at the request of the Applicant and with the agreement of the Respondent, the President of the Tribunal, in accordance with article 7, paragraph 5, of the Statute of the Tribunal, suspended until 31 October 1992 the time-limit for the filing of an application to the Tribunal; Whereas, at the request of the Applicant, the President of the Tribunal, with the agreement of the Respondent, extended to 31 January 1993 the time-limit for the filing of an application to the Tribunal; Whereas, on 31 January 1993, the Applicant's counsel again filed an application in which he requested the Tribunal, inter alia: (c) To declare the decision to dismiss the Applicant based on these false accusations invalid; (d) To order the reinstatement of the Applicant in UNICEF with retroactive effect of payment of his salary, allowances and benefits; (e) Alternatively, to order the payment of termination allowances in accordance with the provisions of the 100 Series of the Staff Rules... (/) Irrespective of the final decision, to order the payment to the Applicant of compensation in respect of the damage suffered (the Applicant leaves it to the Tribunal to decide the amount of this compensation)." Whereas the Respondent filed his answer on 7 February 1994;

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Whereas the Applicant's counsel filed written observations on 11 March 1994; Whereas, on 26 May 1994, the Respondent informed the Secretary of the Tribunal that the Applicant had died on 26 January 1993; Whereas, on 5 July 1994, the Secretary of the Tribunal asked the Applicant's heirs whether they wished to pursue the case before the Tribunal and on 18 July 1994, the Applicant's eldest daughter replied in the affirmative; Whereas the facts in the case are as follows: The Applicant entered the service of UNICEF on 3 September 1979, as a Clerk/Typist at the GS-3 level and remained with UNICEF until 3 September 1990, the date on which he was dismissed for misconduct. At the time of his dismissal, he was employed as an Administrative Assistant at the GS-6 level. In a letter dated 7 October 1987, the Regional Supply Officer of the UNICEF Office at Abidjan (the Regional Officer) informed the Chief of the Freight Centre at Abidjan Airport that all documents relating to air freight intended for UNICEF at Abidjan should in future be delivered to the clearing agent MORY & CIE. In two memoranda dated 3 March and 7 April 1989, the Administration Officer asked the Regional Officer to transfer the records of administrative purchases from the Supply Section to the Administration Section. In a letter dated 22 June 1989, MORY & CIE informed the Regional Officer that it had often happened that the documents which it had gone to collect at the airport, on the instructions of the Regional Officer, had already been collected by the Applicant or by another clearing agent on the instructions of the Applicant. It cited specifically the case of eight packages of audiovisual equipment collected by a certain Mr. Niang Brahima on the Applicant's instructions. It also indicated that Air Afrique had given it to understand that it had received instructions from the Applicant to deliver the documents only to him or to his representative. Lastly, MORY & Cie invited the Regional Officer to write a letter to Air Afrique designating the company as clearing agent for UNICEF, in order to avoid any confusion in the future. In a memorandum dated 1 August 1989, the Regional Officer informed the Regional Director of UNICEF of the contents of the letter from MORY & CIE. He also mentioned that officials of the Air Afrique Freight Centre had brought to his attention the fact that the Director-General of Air Afrique had received from the UNICEF Office a note verbale dated 21 July 1989, bearing neither the name of the author nor a signature, informing him of "the decision taken by UNICEF that it wished in future to receive directly all air freight documents intended for

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it", and explaining that the reason for this decision was to avoid the "considerable collection delays" resulting from the previous procedure followed, which was to deliver the freight documents to a clearing agent which would, in turn, send UNICEF a notice of the arrival of supplies. In a letter dated 1 August 1989, the Officer-in-Charge of the Regional Office confirmed to the Director of the Air Afrique Freight Centre, on behalf of the Regional Director of UNICEF, that MORY & CIE remained the UNICEF clearing agent at Abidjan Airport. In a memorandum dated 11 December 1989, the Deputy Regional Director of UNICEF asked the Applicant to submit to him immediately a written explanation of his "intervention vis-d-vis Air Afrique to change the Office's well-established procedures in clearing UNICEF project supplies" and, in particular: (1) to explain what authorization he had had to issue the note verbale of 21 July 1989 to the Director-General of Air Afrique, and (2) to specify the name of the clearing agent which had cleared the supplies through customs and provide copies of the transactions conducted with that clearing agent during the current year". The Applicant provided the explanations requested in a memorandum dated 12 December 1989. With regard to the note verbale addressed to Air Afrique, the Applicant stated that it had been sent in good faith, after consultations with a staff member in the Supply Section. He gave the following reason for not having consulted the Regional Officer, who was the Chief of that Section: "[The Regional Officer] has not spoken to me for almost two (2) years and it was therefore difficult for me to have a conversation with him." In reply to the questions put by the Deputy Regional Director concerning the clearing agent which had cleared UNICEF supplies through customs, he stated: "As soon as it had been decided to transfer the records to the Administration Section following very considerable and repeated collection delays, which had been brought to your attention by my supervisor, he had wished to try out a clearing agent which had previously had nothing to do with UNICEF ... and thus TRANSCOSIT, through its intermediary (E.I.T.C.F.), was designated. I think that the matter of project supplies was the first to be entrusted to that agent prior to the final departure of [the Administration Officer] and my own departure on leave. While I was on leave, the Administration Section entrusted to the same clearing agent the clearance of liquor and the clearance of the personal effects [of a staff member]. Lastly, I entrusted the clearance of a car [belonging to another staff member] to the same clearing agent." He added that the customs clearance of the eight packages intended for the programme had been the result of an error on the part of the Administration Section and the Supply Section, that the shipping documents had been sent to the Administration Section by a staff member in the Supply

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Section, that there was no evidence which could identify the recipient, that the Administration had been awaiting a consignment from the UNICEF Greeting Card Operation in Copenhagen, and that the error had been discovered only at the time of the delivery of the packages by E.I.T.C.F. The Administration Officer submitted his comments on the explanations provided by the Applicant in two memoranda dated 13 December 1989 and 31 January 1990. In those memoranda he explained that the Administration Section had indeed issued notes verbales to government authorities with regard to matters of protocol, but that it had never issued them to third parties or in respect of matters relating to customs clearance. He asserted that he had never asked the Applicant to select a new clearing agent or to carry out transit operations which were normally the responsibility of the Supply Section. He stated that he had signed the franchise relating to the eight packages intended for the programme following a misunderstanding as to their content, but that he had never asked the Administration Section to clear them through customs and that he had only ever requested the Applicant to clear through customs private liquor and other personal effects of the international staff. The Regional Officer also submitted his comments on the Applicant's explanations in a memorandum dated 14 December 1989. In that memorandum he stated, in essence, that the note verbale addressed to Air Afrique had not been discussed by the Applicant either with him or with any other staff member of the Supply Section, and that no staff member of the Supply Section had handed over to the Applicant, as the latter had affirmed, the air transport letter concerning the eight packages, but only the telex announcing the arrival of the packages which, inter alia, provided details which enabled the Applicant to identify the nature of the said packages. In a memorandum dated 6 March 1990, the Director of the Personnel Division asked the Regional Director of UNICEF to constitute a Joint Disciplinary Committee to investigate the Applicant's case. The Joint Disciplinary Committee submitted its report on 27 July 1990. Its conclusions and recommendations were as follows: "1. General impression During its interviews with [the Applicant] and in the light of the facts, the Joint Disciplinary Committee noted that [the Applicant] had on several occasions demonstrated evident bad faith. A few examples will illustrate this point: (a) [The Applicant] strongly maintained that he had had no contact with the Director of E.I.T.C.F. and yet he had endorsed a cheque in the amount of 449,848 CFA francs for the said company (...). We would point out that one must be authorized in order to endorse a cheque.

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(b) [The Applicant] always asserted that UNICEF was working with TRANSCOSIT and not with E.I.T.C.F., when the facts and the statements of the directors of TRANSCOSIT and SITI have demonstrated that, in fact, the contrary was the case. (c) [The Applicant] indicated that the clearance of the eight (8) packages was the first transaction carried out with E.I.T.C.F., when in reality he himself had conducted six (6) previous transactions. 2. Issuance of the note verbale of 21.7.89 The facts show that there was neither any justification nor any urgent need for the issuance of a note verbale to change the procedures for customs clearance without preliminary consultation, hi case of doubt, [the Applicant] could and should have consulted the person responsible in the Office or waited for the results of the survey while making the person responsible in the Office aware of the need to clarify the situation without delay. The Committee is of the opinion that [the Applicant] exceeded his authority, whereas he could have consulted the Office of the Regional Director before issuing the note verbale. 3. Customs clearance at the airport of eight (8) packages intended for the Cote d'lvoire programme (a) [The Applicant] could clearly identify the nature of the eight (8) packages intended for the Cote d'lvoire programme and he had probably been informed of their destination. (b) It is very unlikely that the franchise was requested on 16.6.89 on the basis of the copy of the long-term agreement (LTA) sent by Copenhagen since that copy did not reach the Abidjan Office until 22.6.89. The franchise must have been issued on the basis of the LTA collected at the airport by [the Applicant] as a result of advance information obtained from Copenhagen by telex. (c) The fact that equipment relating to the Greeting Card Operation was expected cannot be accepted as a valid reason for the customs clearance in view of the information available regarding the nature of the eight (8) packages. (d) [The Administration Officer] signed the franchise which was required for customs clearance without apparently ascertaining that the clearance was to be carried out by the Supply Section. 4. Operations carried out with E.I. T. C.F. (a) The Administration Section, in this case on the proposal of [the Applicant], chose as clearing agent E.I.T.C.F., an unauthorized company whose Director was never seen by anyone and disappeared towards the end of 1989 without leaving any address. The Supply Section was not consulted with regard to this choice.

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This choice did not meet the concerns expressed on several occasions by [the Applicant], who claimed to wish to protect UNICEF against any misappropriation of funds by clearing agents. The choice of E.I.T.C.F. as an intermediary—in effect, the Administration did not deal directly with TRANSCOSIT or SITI—led to an increase in the risk and the cost to UNICEF but was in the personal interests of [the Applicant]. Moreover, it has been established that the invoicing of E.I.T.C.F. does not correspond to the official standards either in the wording used or in the tariffs applied. [The Administration Officer] denies having asked [the Applicant] to designate a new clearing agent. The fact is that, prior to the departure of [the Administration Officer] from Abidjan, seven operations were carried out with E.I.T.C.F, three of them with his implicit agreement in view of the order forms signed. This fact reveals a very serious flaw in the system of supervision. Moreover, it appears that there was no control of the E.I.T.C.F. invoices before they were paid, which undoubtedly resulted in damage to the Organization. (b) The fact that [the Applicant] endorsed a cheque for E.I.T.C.F. after having denied any connection with the management of the company shows that he had close relations with E.I.T.C.F., and this represents a serious conflict of interest. 5. Role of the Regional Finance and Administration Officer In his capacity as Chief of the Administration and Finance Section, it was his job, and certainly his responsibility, to establish the necessary controls and to say who should carry out which control. While not seeking to play down the actions of [the Applicant], the Committee believes that the total absence of control over customs clearance operations at the Section level favoured the misappropriation of funds which took place. In view of the foregoing, the Joint Disciplinary Committee has decided to allow [UNICEF] headquarters to take the necessary disciplinary action hi [the Applicant's case." The Deputy Executive Director of UNICEF addressed a letter dated 22 August 1990 to the Applicant in which she informed him, in the following terms, of her decision to terminate his services: "... I have concluded that on the basis of: (a) Your issuance, without prior authorization from your supervisors, of the note verbale dated 21 July 1989 for the purpose of changing well established procedures in clearing UNICEF supplies; (b) Your arranging for E.I.T.C.F., which is not a duly recognized clearing agent, to act as 'intermediary' for clearing UNICEF supplies; and

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(c) Your signature on the back of UNICEF's cheque dated 6 June 1989 (made payable to E.I.T.C.F. in the amount of CFAF 477.848) endorsing it on behalf of E.I.T.C.F., against the company's seal, which reads 'Entreprise Ivoirienne de Transport—Coulibaly et Filles'. It is clear that you have taken advantage of your position in UNICEF to design a scheme whereby the clearance of UNICEF supplies was made through an intermediary E.I.T.C.F., which was in no way in UNICEF's interests, in order to serve your own interests and illicitly obtain financial gains. Such action is, obviously, incompatible with the responsibility and conduct befitting your status as an international civil servant under staff regulation 1.4. Moreover your actions, coming after you had already been warned by your Regional Director on 5 March 1988 that any similar irregularities in the future will lead to your dismissal from UNICEF's service, have led me to now decide, on behalf of the Executive Director, to separate you from service for misconduct in accordance with UN staff regulation 10.2 and staff rule 110.3. The effective date of your separation will be the c.o.b. [close of business] on which you receive this letter. I have also decided, in accordance with annex III to the Staff Regulations, para, (c), as well as staff rule 110.3(a)(viii), that you will not receive any termination indemnity payment nor compensation in lieu of notice. However, you will receive payment of any accrued annual leave balance, as well as any salary or allowances due to you up to the date of separation." On 31 January 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The false accusations levelled against the Applicant are totally unfounded. 2. The decision to dismiss him based on those false accusations is invalid. Whereas the Respondent's principal contention is: The contested decision was taken by the Respondent in the proper exercise of the discretionary power conferred on him under staff regulation 10.2 and staff rule 110.3(b) regarding disciplinary measures. The Tribunal, having deliberated from 20 October to 4 November 1994, pronounces the following judgement: I. The Applicant entered the service of UNICEF at Abidjan (Cote d'lvoire) in September 1979 and was employed as a Clerk/Typist at the GS-3 level. He was subsequently promoted to the GS-6 level. On 3 September 1990, he was dismissed for misconduct. He died on 26 January 1993. II. On 5 July 1994, the Secretary of the Tribunal sent a letter to the Applicant's counsel asking whether the deceased's heirs wished to pursue

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the case. On 18 July 1994, the deceased's eldest daughter indicated that that was her intention. III. The Tribunal takes into consideration the resumption of the case by the deceased's eldest daughter in accordance with article 7, paragraph 9, of its Rules (cf. Judgement No. 386, Cooper (1987)). The Tribunal will therefore consider the merits of the case. IV. It is established that, following several disciplinary irregularities which the Applicant was accused of committing, the Joint Disciplinary Committee, constituted to deal with the matter, proposed that the Administration should take all appropriate measures in accordance with the Staff Regulations and Rules. The Applicant was then dismissed on 3 September 1990 without receiving any termination indemnity. V. The Applicant filed this application to the Tribunal against the decision to dismiss him. He had sought retroactive reinstatement together with the payment of his salary and other allowances. VI. The Respondent asks that this request be rejected on the grounds that the contested decision was taken in the normal exercise of the discretionary authority conferred on him in accordance with staff regulation 10.2 and staff rule 110.3. He adds that the facts giving rise to the dismissal of the Applicant were established following an inquiry in which the Applicant enjoyed all the requisite procedural guarantees. Lastly, the Respondent observes that the Applicant had previously been warned, in a letter from his Regional Director dated 3 February 1988, that he would be penalized if he committed any further breaches of the rules of conduct applicable to staff members. VII. With regard to the dismissal of the Applicant without payment of allowances, the Tribunal notes that, in accordance with paragraph (c) of annex III to the StafFRegulations and staffrule 110.3(a)(viii), the Executive Director decided that the Applicant would not receive any termination indemnity or compensation in lieu of notice. In this connection, the Tribunal notes, and reaffirms, its earlier decisions whereby, in disciplinary matters, the Administration has discretionary authority both with regard to the evaluation of the conduct with which a staff member is charged and in determining the disciplinary measures to be imposed. It is therefore not for the Tribunal to question the decision of the Secretary-General unless it is proved that the decision was motivated by considerations external to the interests of the service, such as prejudice or discrimination, or unless the staff member did not enjoy all the requisite procedural guarantees. VIII. The Tribunal notes that the Applicant has not proved that he was deprived of the requisite guarantees in the disciplinary proceedings relating to his case or that he suffered any damage therefrom. On the con-

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trary, it appears from the report of the Joint Disciplinary Committee that all the investigations were conducted with due hearing of both parties. IX. The Tribunal notes, lastly, that the Applicant has also failed to provide any proof that his dismissal was based on considerations external to the interests of the service. X. Based on the foregoing, the Tribunal concludes that, in deciding in this case to terminate the services of the Applicant without payment of allowances, the Administration was acting in the legitimate exercise of its discretionary authority. The application therefore has no merit and should be rejected. XI. For the foregoing reasons, the Tribunal rejects the application. (Signatures) Luis de POSADAS MONTERO

Mikuin Leliel BALANDA

Vice-President, presiding

Member

Hubert THIERRY

R. Maria VlCIEN-MlLBURN

Member New York, 4 November 1994

Executive Secretary

Judgement No. 669 (Original: English) Case No. 595: Khan

Against: The Secretary-General of the United Nations

Application of a former staff member of the United Nations Children's Fund (UNICEF) for revision of Judgement No. 563. The Tribunal recalls the conditions required by Article 12 of its Statute for revision of a judgement: discovery of afact of a decisive nature which was not known to the Tribunal and to the party claiming revision at the time of the judgement.—It examines whether the facts claimed by the Applicant meet these criteria.—The Applicant invokes the fact that a memorandum sent to Headquarters by the UNICEF Representative was not copied to him; the Tribunal holds that the non-transmittal of this memorandum cannot be considered « a decisivefactor » since the circumstances described therein were known to the Joint Disciplinary Committee and consequently to the Tribunal.—It also rejects other contentions of the Applicant: failure by the UNICEF Representative to adhere to an administrative instruction does not constitute a newfact of a decisive nature and the Applicant was informed of the possibilities opened to him by Article 11 of the Statutes.—All the points raised by the Applicant were duly disposed of in Judgement No. 563. Application rejected.

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THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, First Vice-President, presiding; Mr. Luis de Posadas Montero, Second Vice-President; Mr. Mayer Gabay; Whereas, on 29 July 1993, Shafiuddin Khan, a former staff member of the United Nations Children's Fund (hereinafter referred to as UNICEF), filed an application in which he requested, in accordance with article 12 of the Statute of the Tribunal, the revision of Judgement No. 563, rendered by the Tribunal on 2 July 1992; Whereas the application contained pleas which read, in part, as follows: "III. PLEAS The Applicant hereby applies to the Tribunal for a revision of Judgement No. 563, case No. 595: Khan due to the following factors: 1. The discovery of a very important correspondence of confidential nature between [the UNICEF Representative, Addis Ababa] and Director, DOP [Division of Personnel], New York dated 7 November 1989 not copied to the Applicant... [which] if brought to the attention of the Tribunal could have played a decisive role when the judgement was given. (Judgement No. 563) 2. The Tribunal's observation in its Judgement No. 563, case No. 595: Khan that 'there is no suggestion, in the view of the Tribunal, that the Applicant was dissatisfied with the procedure followed' clearly signifies that the Tribunal was ignorant of the fact that the Applicant has expressed his dissatisfaction .. . 3. ... The Tribunal has not delivered justice to a poor worker of the United Nations with outstanding performance on record for more than 26 years of continued service and relied only upon the Respondent's version... Whereas the Respondent filed his answer on 21 January 1994; Whereas the Applicant filed written observations on 28 April 1994; Whereas, on 14 July 1994, the Respondent filed an additional statement and on 14 September 1994, the Applicant provided his comments thereon; Whereas, on 2 October 1994, the Applicant submitted an additional statement and filed further documents; Whereas, on 26 October 1994, the Applicant submitted an additional statement; Whereas the facts in the case have been set forth in Judgement No. 563. Whereas the Applicant's principal contentions are:

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1. The Tribunal and the Applicant were unaware at the time the Tribunal rendered Judgement No. 563 of a memorandum dated 7 November 1989, from the UNICEF Representative in Addis Ababa, transmitting the results of an investigation of the Applicant to the Director, Division of Personnel at Headquarters. 2. The Respondent did not follow the procedures set forth in administrative instruction CF/AI/1990-05 on "Revised Disciplinary Measures and Procedures". 3. The Director of Personnel had no legal authority to refer the Applicant's case to the Joint Disciplinary Committee without the explicit recommendation of the Head of the Office. 4. The Tribunal mistakenly indicated that "there is no suggestion in the view of the Tribunal, that the Applicant was dissatisfied with the procedure followed." Whereas the Respondent's principal contentions are: 1. An application for revision of a final judgement must be based on the conditions set out in article 12 of the Statute of the Tribunal and not on the Applicant's views on the merits of his or her claims. 2. There is no basis for the revision of Judgement No. 563, pursuant to article 12 of the Statute of the Tribunal. The Tribunal, having deliberated from 19 October to 4 November 1994, now pronounces the following judgement: I. The Applicant seeks revision of Judgement No. 563 and oral proceedings. The Tribunal considers that the file before it is adequate and finds no need for oral proceedings. The Applicant's main ground for revision is that he was not given a copy of the memorandum sent by the UNICEF Representative, transmitting to Headquarters the Applicant's answer to the charges levelled against him. The text of the memorandum reads, in part, as follows: "I think that he answered in a very detailed way to all questions; it will be up to DOP [Division of Personnel] to check all the technical matter on which I am not an expert. ... I did delegate [the Applicant] to sign short-term and fixed-term contracts, considering that, for short term, UNICEF Addis Ababa created internal rules and for fixed-term contracts, after the suggestion of SAP [Selection Advisory Panel] and APC [Appointment and Placement Committee], with the endorsement of the Representative, the signature of the contract becomes a pure formality. The renewal of a GS [General Service] fixed-term contract also remains a formality if the supervisor writes a letter stating that the staff member's performance is, without doubts, 'good'.

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For National Officers' contracts, all matters, including the 'formalities' of the contract, remain, of course, in the hands of the Representative. Your early comments on [the Applicant's] answers will be very much appreciated." The Applicant also claims that the UNICEF Representative should have acted in accordance with paragraph 6 of CF/AI/1990-05 which reads as follows: "6. The Head of Office shall communicate the results of the investigation and recommend to the Director of DOP [Division of Personnel], Headquarters within five working days from the date the staff member's response was due whether: (a) To withdraw the charges and close the matter; (b) To summarily dismiss the staff member for serious misconduct; (c) To refer the case to a JDC [joint disciplinary committee] for advice." II. The Applicant alleges that the memorandum omitted the recommendations required by paragraph 6 of CF/AI/1990-05 while it included considerations apparently justifying some aspects of the Applicant's conduct. The Applicant also submits that a phrase included in paragraph VI of Judgement No. 563 shows that the Tribunal "was ignorant of the fact that the Applicant... expressed his dissatisfaction with the procedures followed." III. The Tribunal recalls that, according to article 12 of its Statute, a judgement is subject to revision only in the case of "the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgement was given, unknown to the Tribunal and also to the party claiming revision, always provided that such ignorance was not due to negligence." It is to be noted that article 12 requires, in the first place, that the new fact be of a decisive nature and also that it should have been unknown, both to the Tribunal and to the party claiming revision, at the time of the judgement. IV. The Applicant claims that the memorandum of 7 November 1989 was unknown to him and that, therefore, its discovery constitutes a new fact. The Tribunal has to decide whether this new fact meets the requirements of article 12 of its Statute. V. In the view of the Tribunal, the non-transmittal of the memorandum of 7 November 1989 to the Applicant cannot be considered "a decisive factor", as required by article 12. The Tribunal need not enter into

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the question of whether a copy of the memorandum should have been made available to the Applicant. Even if there was an obligation to do so, the omission to communicate the document would only constitute a minor procedural flaw, having no bearing on the outcome of the case. The Applicant's defence was not impaired by the Applicant's ignorance of the memorandum. The circumstances mentioned in the memorandum as possibly attenuating some of the charges, i.e. the admission by the Resident Representative that he had delegated "[the Applicant] to sign short-term and fixed-term contracts" were before the Joint Disciplinary Committee and were consequently before the Tribunal when it rendered Judgement No. 563. It is thus perfectly clear, in the Tribunal's view, that article 12 cannot be invoked in this instance. VI. As to the Applicant's allegation that the UNICEF Representative did not adhere to CF/AI/1990-05, the Tribunal also concludes that it does not constitute a new fact of a decisive nature warranting revision. As to the Applicant's contention that he was not duly informed of the possibilities opened to him by article 11 of the Tribunal's Statute, the Tribunal finds that the Applicant was so informed in a letter dated 31 July 1992, from the Executive Secretary of the Tribunal. VII. As regards the alleged implication of the phrase used by the Tribunal at the end of paragraph VI of Judgement No. 563, the Tribunal notes that it cannot be claimed, as the Applicant does, that the Tribunal was ignorant of the issues submitted to it. The text of Judgement No. 563 clearly shows that all the points raised by the Applicant were duly disposed of. VIII. For the foregoing reasons, the application is rejected in its entirety. (Signatures) Jerome ACKERMAN First Vice-President, presiding Mayer GABAY Member New York, 4 November 1994

Luis de POSADAS MONTERO Second Vice-President R. Maria VlCIEN-MlLBURN Executive Secretary

Judgement No. 670

281

Judgement No. 670 (Original: English) Case No.729: Abdala, et al

Against: The Secretary-General of the United Nations

Application of 80 staff members of the United Nations Economic and Social Commission for Western Asia (ESCWA) for rescission of decision relating to the remuneration in Amman of internationally recruited General Service staff members, for an order to enter into consultation with staff representatives on this subject, for restoration of status quo ante and for alternative solutions to the problem.—Request for costs. The Joint Appeals Board found that the decision concerning the application to the Applicants of the Amman General Service salary scales did not violate their terms of employment and made no recommendation in support of the appeal. The Tribunal notes that new pleas were introduced by the Applicants in their written observations.—It considers such practice improper and will not entertain these pleas. The Tribunal recalls the circumstances of the case: after the transfer of ESCWA from Beirut to Baghdad in 1981 the Applicants, originally recruited locally in Beirut, were given the status of internationally recruited staff members, with related benefits.—After the suspension of ESCWA activities in Baghdad in 1990 they were evacuated and assigned in 1991 to the new temporary seat of ESCWA in Amman.—As a consequence, they were placed on the Amman General Service salary scale, with benefits related to their international status and a number of other benefits approved on an ad hoc basis.—They complain about their being placed on the Amman General Service salary scale, substantially lower than the Baghdad scale.—The Tribunal proceeds to examine whether the assignment of the Applicants to Amman and the application to them of the Amman salary scales constituted non-observance of their terms of employment.—The Tribunal holds that, under staff regulation 1.2, the Secretary-General was authorized to transfer the internationally recruited Applicants from Baghdad to Amman and to apply to them the salary scales applicable in that duty station.—It recalls the basic provisions relating to the methodology for determination of General Service salary scales on the basis of best prevailing local conditions.—A change in remuneration upon the change of duty station may be a normal consequence of that methodology and does not violate the Applicants' terms of employment.—The Tribunal finds no evidence to support the contention of the Applicants that, when they were moved from Beirut to Baghdad and special benefits were offered to them, a precedent was established whereby they would not be moved to another location without some further agreement being reached with them.—Applicants' contention that that the contested decision was invalid as it was not preceded by consultations with staff representatives under staff regulation 8.1.—The Tribunal agrees with the Respondent that decisions as to the geographic location of any organ of the Secretariat are not matters subject to consultation with staff representative bodies, although the effects on staff of a relocation are a proper matter for such consultation.—It finds that views of the staff were taken into consideration and, while it was not possible to grant all staff requests some additional benefits were provided as a result.—The Tribunal recognizes that a degree of financial hardship was involved in relocation but the Respondent made reasonable efforts to ameliorate the situation.—It concludes that internationally recruited General Staff members may be transferred and are entitled to international benefits, but their salaries are based on the scale of the new duty station. Application, including request for costs, rejected.

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THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Jerome Ackerman, Vice-President; Mr. Mikuin Leliel Balanda; Whereas at the request of All Abdala, the President of the Tribunal, with the agreement of the Respondent, successively extended the time-limit for the filing of an application with the Tribunal, on behalf of himself and 79 similarly situated staff members, to 15 April 1993 and 31 May 1993; Whereas, on 17 May 1993, the Applicants filed a joint application containing pleas which, inter alia, request the Tribunal: "6. ... to rescind the contested decision of 19 June 1991 by the Officer-in-Charge, Department of Administration and Management (...) insofar as it applies to the remuneration in Amman of the General Service staff members who had been internationally recruited for service in Baghdad, and to order the Secretary-General to enter into immediate consultations with ESCWA staff representatives with a view to finding an equitable and mutually acceptable solution to the problem (...)." and "Pending the conclusion of such consultations,... to order that the applicants be restored to the status quo ante by being returned, with retroactive effect, to the Baghdad General Service salary scale with payment to them of a daily subsistence allowance for the duration of their temporary assignment to Amman (...)." and further "to commend to the Secretary-General's attention the two alternative solutions indicated by the Chairman, ESCWA Staff council in his letter of 6 October 1991 to the Assistant Secretary-General for Human Resources Management (...), i.e., retention of the Baghdad salary scale with payment of a daily subsistence allowance in Amman, or the grant to the applicants of Field Service status, among other options (...)." as well as "7. to award to them legal costs in the amount of $5,000 (...)." Whereas the Respondent filed his answer on 30 June 1994; Whereas the Applicants filed written observations on 5 October 1994, including a plea for an enhanced termination package; Whereas the facts in the case are as follows: The Applicant entered the service of the United Nations Economic and Social Commission for Western Asia (ESCWA, formerly ECWA) at its Headquarters in Beirut on 7 July 1980. He was given a three-month

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fixed-term appointment as a Personnel Clerk at the G-4 level. He continued to serve on a succession of fixed-term appointments of varying duration. On 1 July 1982, the Applicant's duty station was changed to Baghdad, and he acquired "internationally recruited" status. On 29 April 1986, he was granted a probationary appointment, made permanent on 1 January 1987. In August 1990, the Applicant was temporarily repatriated from Baghdad. On 1 August 1991, his duty station was changed to Amman. Apart from the different dates of entry in service and of differences in grade, the other 79 Applicants have a similar employment history. They are all General Service staff members, internationally recruited for service with ESCWA in Baghdad, and subsequently relocated to Amman in 1991. In 1981, the Secretariat of ESCWA relocated from Beirut to Baghdad. The Applicants, who had been locally recruited for service in Beirut, were transferred to Baghdad with the status of internationally recruited staff. This entitled them to various allowances and benefits under staff rule 104.7(a). In August 1990, as a result of the Persian Gulf conflict, ESCWA's operations were suspended and all internationally-recruited staff members in both the Professional and General Service categories were evacuated from Baghdad. After their evacuation, these staff members continued to receive the salary and emoluments calculated at the rate applicable to service in Baghdad. They also received a monthly evacuation allowance to compensate for the additional expenses incurred as a result of their evacuation. In November 1990, a small liaison office was opened in Amman, Jordan. On 25 April 1991, the Director of the Buildings and Commercial Services Division, Office of General Services, in a memorandum to the Under-Secretary-General for Administration and Management, reported the finding of an investigative mission that it would be feasible to regroup 106 ESCWA staff in Amman. He noted that: "It is envisaged that the office in Amman will act as a bridge point or a holding area for ESCWA staff later going back to the Headquarters in Baghdad, Iraq," and he recommended that no locally recruited staff in Baghdad be transferred to Amman, unless on an exceptional basis "the required skills are not available among international GS [General Service] staff." On 2 May 1991, the recommendations contained in the report of the mission were approved by the Under-Secretary-General for Administration and Management. On 19 June 1991, the Officer-in-Charge of the Department of Administration and Management advised the Executive Secretary of ESCWA, inter alia, as follows: "(a) The regrouping in Amman should be initiated immediately with a view to having all staff in Amman by the end of August.

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(b) It should not be confined to 106 staff members as initially envisaged but should apply to all internationally recruited staff. 2. This will be a temporary regrouping for an initial period of one year, i.e. until August 1992.. . . These arrangements will also result in a change of duty station. The duty station for all ESCWA staff will be Amman and salaries and allowances will be adjusted accordingly. In a memorandum dated 17 July 1991, addressed to all ESCWA Professional and International General Service staff members, the Chief, Division of Administration, ESCWA, requested all staff concerned, to report in Amman by 11 August 1991, explaining that: "The regrouping in Amman is for an initial period ending 31 August 1992. The regrouping will result in a change of duty station with consequent adjustments in emoluments and compensation package.... . . . [International General Service] staff members will be placed in Amman GS salary scale on basis of same numerical grade and step as that in Baghdad .. ." In response to this memorandum, on 17 July 1991, the ESCWA Staff Council wrote to the Chief, Division of Administration, protesting the decisions made in connection with the regrouping on salaries and conditions of service. It noted that it had not been consulted, formally or informally, before the issuance of the memorandum. It stated that the Amman conversion ratio set forth in the memorandum was "not in line" with the agreement reached between the Staff Council and the Administration, namely that "the Baghdad conversion ratio would also be applied for ESCWA International General Service staff members moving to Amman." On 27 August 1991, the Chief, Division of Administration, ESCWA, advised the Deputy Controller, Department of Administration and Management, that "the salary scale applied in Amman is much lower than that of Baghdad approximately 1/3," and that the substantial difference in the exchange rate between Iraq and Jordan "has led to a considerable drop in net take home salary in terms of dollars." On 11 September 1991, the Chief, Division of Administration, ESCWA, transmitted to Headquarters a number of recommendations from the ESCWA Joint Advisory Committee, seeking by various means, to compensate for the decrease in remuneration of international General Service staff members resulting from the change of duty station. Proposed measures included the reinstatement of a non-resident allowance, approval of a rental subsidy, an increase in the rate of conversion, and the conduct of a place-to-place survey with retroactive effect. In a further cable, dated 16 September 1991, he requested approval to compensate staff

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transferred to Amman for advance rent paid in Baghdad prior to the regrouping of ESCWA staff. In a letter dated 6 October 1991, the Chairman of the ESCWA Staff Council wrote to the Assistant Secretary-General, Office for Human Resources Management (OHRM), with several proposals to address the situation of international General Service staff members in Amman. He recalled that these staff members had relocated from Beirut to Baghdad in 1982, having accepted a "package-offer" which was "meant for Baghdad," and that there had been no mention that they could "be moved from one duty station to another, and be subjected to the local salary scale of any duty station." He noted that the Organization was "cutting away two thirds of their take-home pay for the same job," and proposed that these staff members should either "be entitled to payment of salary and other allowances prevailing at the original duty station plus payment of the applicable DSA at the new duty station" or "be granted the Field Service Status", which was suited to their de facto circumstances. On 25 October 1991, the Acting Under-Secretary-General, Department of Administration and Management, replied to the communications of 11 September and 16 September 1991 from the Executive Secretary of ESCWA, concerning the salaries and conditions of service of the ESCWA staff. He provided details of a number of special measures taken to alleviate the circumstances of the regrouped International General Service staff members, including the continued application of the currency distribution provisions which had been applicable in Baghdad to enable staff members to receive a higher proportion of their salary in US dollars. He also advised the Executive Secretary that locally recruited staff members in Baghdad could not be allowed to join the office in Amman in light of the risk that they might then have a claim to international status, and that therefore they should be offered agreed terminations "under the best terms and conditions allowed by the Staff Rules and Regulations." On 2 November 1991, the Chairman of the ESCWA Staff Council again wrote to the Assistant Secretary-General, OHRM, concerning the "unbearable financial difficulties" faced by International General Service staff in Amman and recalling the option "to rescind the decision taken to consider Amman as the new duty station of this category of staff, since the regrouping of ESCWA in Amman is a temporary one." He also recalled the other options proposed, namely "mission assignment or, reclassification of the category concerned into Field Service." On 26 December 1991, the Applicants wrote to the Secretary-General, requesting a review of the administrative decision to apply the General Service salary scale of Amman to the internationally recruited General Service ESCWA staff members who had been transferred from Baghdad. On 26 March 1992, a cable from OHRM to ESCWA noted that the International Civil Service Commission (ICSC) had not been able to

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complete consideration of various proposals relating to the International General Service staff in Amman during its session and had postponed any decision until its next session in July 1992. However, "mindful of particular circumstances faced by IGS [International General Service] staff of ESCWA", ESCWA was informed of the decision taken to introduce "ad hoc measures to remedy situation in Amman." Among these measures was the payment of a rental subsidy, effective 1 September 1991, with a waiver of the maximum reimbursement limit of 40 per cent, and the payment of a non-pensionable supplement equivalent to 10 per cent of net salaries. ESCWA was instructed "It should be clearly explained to all concerned that above ad hoc measures have been approved on exceptional and temporary basis ... application of these measures shall not be construed as acquired rights of staff." On 29 April 1992, the Director, Staff Administration and Training Division, OHRM, informed the Applicants that the challenged decision would be maintained. The letter stated, inter alia: "Annex I to the Staff Regulations, provides that the Secretary-General shall fix the salary scales for staff members in the General Service category on the basis of the best prevailing conditions of employment in the locality of the United Nations office concerned... The local salary scale, once promulgated, is applicable to all the General Service staff members at the duty station, whether their status is local or international " On 27 March 1992, the Applicants lodged an appeal with the Joint Appeals Board (JAB). On 20 August 1992, the JAB adopted its report. Its findings and recommendation read, in part, as follows: "55. ... (b) ... that the application of the Amman General Service salary scale to the [Applicants] upon their relocation from Baghdad to Amman did not violate their terms of employment. (c) ... that the decision to consult ECWA General Service staff on a package of incentives in connection with the transfer of ECWA from Beirut to Baghdad did not constitute a precedent applicable to the present case, as the surrounding circumstances were different. (e) ... that the [Applicants'] request for the restoration of the status quo ante cannot be entertained in view of the above findings. (/) ... that the views of the [Applicants] were taken into consideration when the Administration discussed and reviewed the various issues related to the [ESCWA] regrouping in Amman.

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56. The Panel therefore unanimously decides to make no recommendation in support of the appeal." On 15 October 1992, the Assistant Secretary-General for Human Resources Management informed the Applicants as follows: "[t]he Secretary-General has re-examined your case in the light of the Board's report. He fully concurs with the Board's findings and notes with approval the Board's decision to make no recommendation in support of the appeal.... The Secretary-General has decided to take no further action on this appeal." On 17 May 1993, the Applicants filed with the Tribunal the joint application referred to earlier. Whereas the Applicants' principal contentions are: 1. General Service staff members who have been internationally recruited for service at a given duty station cannot legally be automatically transferred to another duty station. The change in duty station resulted in a financial loss on an order of magnitude of 70 per cent and extreme hardship to the Applicants. 2. There is no global salary scale for General Service staff members, as there is for Professional and Field Service staff. The unilateral reduction by the Administration of the Applicants' salaries by two thirds caused excessive harm to and discriminated against General Service staff members. It was unreasonable and constituted an abuse of authority. 3. There was inadequate consultation prior to the transfer from Baghdad to Amman, in violation of the precedent set by the 1981-1982 relocation of ECWA from Beirut to Baghdad, and in violation of staff regulation 8.1. Whereas the Respondent's principal contentions are: 1. The application of the Amman salary scale to the Applicants is a necessary consequence of the decision to relocate the ESCWA Secretariat from Baghdad to Amman and of the resulting change of duty station. That decision was taken by the Secretary-General in the proper exercise of his discretionary authority. 2. The Applicants' plea that the Respondent negotiate a settlement of their claims is not a matter for adjudication. The Tribunal, having deliberated from 12 October to 4 November 1994, now pronounces the following judgement: I. The Applicants, internationally recruited General Service staff members, appeal from a decision of the Respondent dated 15 October 1992, in which the Respondent concurred with the findings of the JAB and approved its unanimous decision to make no recommendation in sup-

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port of the Applicants' appeal. In their observations, the Applicants submit a new plea that the Respondent be ordered to make available to them an enhanced termination benefit package, similar to that extended to locally recruited General Service staff members of the Baghdad ESCWA office whose posts were abolished. As the Tribunal has held in other cases, the introduction of new pleas in written observations on the Respondent's answer is improper and they will not be entertained. II. This case is somewhat related to the applications which were decided by the Tribunal in Judgement No. 590, Abdala, et al. (1993). That case involved essentially the same group of staff members and the discontinuance of rental subsidies with respect to their residences in Baghdad. As a result of the Persian Gulf conflict, the activities of ESCWA in Baghdad were temporarily suspended and all internationally recruited staff, including the Applicants, were evacuated from Baghdad under temporary repatriation measures. They continued to receive their base salary and other elements of remuneration at the Baghdad rate, plus a monthly evacuation allowance to compensate for the additional expenses incurred as a result of their evacuation. In June 1991, it was decided to proceed with a temporary regrouping in Amman of all internationally recruited staff. The staff of ESCWA was advised that the regrouping would result in a change of duty station to Amman and that salaries and allowances were to be adjusted accordingly. III. In mid-July 1991, internationally recruited General Service staff members were informed that they should report to Amman by 11 August 1991 and that the regrouping would be for an initial period, ending on 31 August 1992. It is in respect of that regrouping that the claims of the Applicants arise. IV. Before the Tribunal can consider the appropriateness of any remedial action sought by the Applicants, it must determine, in keeping with article 2 of its Statute, whether there has been non-observance of the contracts of employment or terms of appointment of those staff members. The first issue is, therefore, whether the Respondent's assignment of the Applicants to the ESCWA Office in Amman, and the application to them of Amman salary scales constituted non-observance of their terms of employment. V. By way of background, the Tribunal recalls that, before ESCWA moved from Beirut to Baghdad in 1981, as a result of unsettled conditions in Beirut, the Applicants were locally recruited General Service staff members of ESCWA. In connection with their transfer to Baghdad, they were given the status of internationally recruited staff which entitled them to various expatriate benefits under staff rule 104.7. These included a non-resident allowance, an ad hoc rental subsidy (the subject

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of Judgement No. 590), an arrangement with regard to convertible currency, an educational benefit and an installation grant. VI. After the regrouping in Amman and as a result of complaints by the Applicants about their salaries and conditions of service, special measures were taken by the Administration in an effort to provide additional assistance to them. In response to a request for reinstatement of a non-resident allowance, it was pointed out that the allowance had been subsumed under payment of a mobility and hardship allowance which was higher than the non-resident allowance and that, therefore, under the applicable rules, a non-resident allowance could not be paid. With respect to payment of a rental subsidy, the matter was initially deferred pending a recommendation from the ICSC. With respect to the currency of salary payments, an exception was made which permitted payment in Amman of the same percentage of net base salaries in U.S. dollars as had previously been applicable in Baghdad. As an exception, payment of an extended assignment allowance was approved, under specific case-by-case circumstances. A modification favourable to the staff was made in connection with previously approved reimbursement of rental expenses in Baghdad. A favourable termination arrangement was also approved for staff members upon expiration of their fixed-term appointments. In short, benefits similar to those which had been provided to General Service staff members in 1981, in connection with their transfer to Baghdad from Beirut, continued to be provided in connection with the regrouping in Amman. The main dissatisfaction, however, on the part of the Applicants stems from the fact that the General Service salary scales in Amman, which are based on salary levels in the Amman area, are significantly lower than the General Service salary scales in Baghdad. VII. The Respondent argues and the JAB correctly found that staff regulation 1.2, which provides: "Staff members are subject to the authority of the Secretary General and to assignment by him to any of the activities or offices of the United Nations . . ." (Emphasis added) authorized him to transfer the internationally recruited Applicants from Baghdad to Amman in connection with the relocation of ESCWA. As indicated above, the Applicants' challenge to the authority of the Secretary-General regarding their assignment to Amman is essentially based on economic considerations. This is hardly a valid ground for attacking the Secretary-General's authority under staff regulation 1.2. VIII. Nothing in the Staff Regulations or Rules provides support for the Applicants' contention that internationally recruited General Service staff can be assigned to Amman for a one year period only if they continue to be paid under the salary scale of Baghdad, plus a daily subsistence allowance. The Secretary-General has the authority to change the

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duty station, and when internationally recruited General Service staff are transferred to a new duty station, their salary is established in accordance with staff regulation 3.1, Annex I, paragraph 7 to the Staff Regulations, and staff rule 103.2.4 Under this regime, the Secretary General fixes the salary scales for staff members in the General Service category on the basis of the best prevailing conditions of employment in the duty station of the office concerned. To this end, surveys of local employers are conducted at each duty station. On the basis of the surveys, salary scales are established and are applied to all General Service staff in the locality. In addition, a system for interim adjustments to General Service salary scales is aimed at providing for cost-of-living changes at each duty station. See, Judgement No. 395, Oummih, et al (1987). DC. Hence, a change of duty station may result in a change in net remuneration, but this may be a normal consequence of the methodology by which salary scales are determined. A somewhat analogous situation was before the Tribunal in Judgement No. 629, Clavel and Sallier (1993), in which General Service staff members who had been promoted from the General Service category to the Professional category subsequently experienced a reduction from what their net remuneration would have been had they remained in the General Service category. This resulted from a difference in the remuneration system as between the General Service and Professional categories. Their situation was, therefore, not brought about by non-observance of their contracts of employment and their requests for relief were rejected. See, also, ILOAT Judgement No. 1322, Anderson (1994). A change in duty station which leads to a reduction in remuneration, while regrettable, is not in itself a violation of the Applicants' terms of employment. X. In such a situation, it is not the function of the Tribunal to substitute its judgement for that of the Respondent with regard to whether or how to deal with claimed adverse economic consequences such as those asserted by the Applicants as a result of their relocation. That, as the JAB concluded, is a matter for the Secretary-General's judgement. The Tribunal is unable to find that the Secretary-General has violated the Applicants' contracts of employment or terms of appointment. XI. The Applicants contend that in order to induce them to move from Beirut to Baghdad, special benefits were offered by the Administration and they moved in reliance thereon. From this, they conclude that a precedent was established under which it was implicitly agreed that, be-

There may, of course, be other differences in entitlements as between locally recruited and internationally recrutied General Service staff such as those described in staff rule 104.7 and those exceptionally provided in this case to take account of special circumstances.

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fore they were moved again, they would first be consulted and further arrangements agreeable to them would be made by the Respondent. The Tribunal notes that the Applicants were given the status of internationally recruited General Service staff with a package of special benefits, as described above, in order to induce them to move from Beirut to Baghdad. The reason given was the anticipated unavailability of qualified persons in Baghdad for the posts in question. This concern does not appear to have been a factor in connection with the relocation to Amman. Hence, the situation was, as the JAB found, different. XII. There is no evidence of any undertaking, express or implied, concerning any limitations on the authority of the Respondent under the Staff Regulations and Rules with regard to possible future relocation of the ESCWA office and/or the Applicants. The Staff Regulations and Rules make clear the nature of the Respondent's authority in those regards. It does not follow, therefore, that, because it was found necessary to provide inducements for the Applicants to transfer from Beirut to Baghdad, a precedent was established mandating that the Respondent either retain Baghdad salary scales or reach some further agreement with the Applicants as a condition of being able to assign them to a new duty station. XIII. With respect to the Applicants' contention that the decision to transfer them to Amman was invalid because it was not preceded by consultations under staff regulation 8.1 and staff rules 108.1, etseq., the Tribunal agrees with the Respondent's contention that decisions as to the geographic location of the Secretariat or of any particular subsidiary organ of the United Nations, such as a Regional Commission, are not matters subject to mandatory consultations with staff representative bodies under these regulations and rules. Decisions relating thereto may involve diplomatic, political, financial, emergency and policy considerations. This does not mean, however, and the Respondent so concedes, that the effects on staff members of a relocation and related measures are not proper matters for consultation at an appropriate time. In the present case, the views of the staff with regard to measures for their benefit in connection with the relocation were considered by the Respondent. He explained why it was not possible to grant all of the staff requests. Yet, as a result of the consideration given to the staff requests, some additional benefits were provided. Accordingly, the Tribunal finds no support for the Applicants' contention that either their relocation or its terms were invalid on account of non-compliance with any applicable staff regulation or rule relating to consultation. XIV. The Tribunal recognizes that a degree of financial hardship is inevitably involved in the relocation of internationally recruited staff if the applicable Staff Rules cause a reduction hi their net remuneration. The Respondent also recognizes that the alternative faced by the staff in

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such a situation requires difficult decisions. Here, the situation arose from external events—not because of any intent to impose hardship on the staff. On the contrary, in recognition of the need for equitable transitional arrangements, the Respondent made reasonable efforts to ameliorate the problems associated with relocation. The measures adopted were in keeping with the status of the Applicants as General Service staff, who were internationally recruited. But no internationally recruited General Service staff member can reasonably expect to be paid indefinitely at the salary scale of a former duty station. The Staff Regulations and Rules contemplate that locally recruited General Service staff members' appointments are ordinarily terminated if their posts are abolished due to relocation of the duty station. Internationally recruited General Service staff may be transferred and are entitled to international benefits, but their salaries are calculated on the basis of the scale for the duty station to which they are transferred. XV. Accordingly, the Tribunal finds no reason to consider any of the remedial requests set forth in the pleas. XVI. For the foregoing reasons, the application is rejected, as is the request for legal fees. (Signatures) Samar SEN President

Jerome ACKERMAN Vice-President

Mikuin Leliel BALANDA Member

R. Maria VlCIEN-MlLBURN Executive Secretary

New York, 4 November 1994

Judgement No. 671 (Original: English) Case No. 731: Grinblat

Against: The Secretary-General of the United Nations

Application of a staff member of the United Nations for rescission of decision refusing the addition of his name to the short list of candidates for a post established by the Appointment and Promotion Board (APB),for a decision to promote him to P-5 at the next opportunity and for compensation for the damage resulting from the contested decision. The Joint Appeals Board recommended suspension of action on the short list pending a decision on merits.—Recommendation rejected as a final decision on the matter had been taken before the Board's report was received.—On the merits the Board concluded that the

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APB acted within its mandate and in compliance with relevant provisions in short-listing only two women candidates and recommended that the appeal be rejected. The Tribunal recalls the circumstances in which the APB, to which five applicants for the post found suitable by the Office of Human Resources were submitted, established a short list consisting only of two women candidates who werefound qualified, taking into account Secretary-General's bulletin ST/SGB/23 7 on the improvement of the status of women in the Secretariat.—In keeping with its jurisprudence, the Tribunal does not enter into appraisal of the relative qualifications of the candidates.—It examines whether APB went beyond its assigned areas of responsibility under the Vacancy Management System in taking ST/SGB/237 into account and whether its actions were in keeping with General Assembly resolutions and Article 101(3) of the Charter.—The Tribunal notes that APB found the qualifications of all five candidates substantially equal, but decided to omit the names of qualified male candidates, relying on the language of ST/SGB/237.—// also notes that under ST/AI/338 a short list should normally contain at least three names, except if there are less than three qualified candidates and recalls that an administrative instruction has the same effect as a staff rule.—Analysis of various provisions and guidelines issued for the improvement of the status of women in the Secretariat and of General Assembly resolutions on this subject, in the light of the relevant provisions of the United Nations Charter.—The Tribunal concludes that, particularly in view of unsatisfactory past history with respect to recruitment and promotion of women, Article 8 of the Charter permits the adoption of reasonable affirmative action measures for improvement of the status of women.—However, this Article does not override Article 101(3) and the various General Assembly resolutions on the subject did not have such scope.—Thus, while affirmative action with regard to improvement in the status of women is required and desirable, it must be related to the principle of equal treatmentfor men and women and subject to the criterion of securing the highest standards of efficiency, competence and integrity.—The Tribunal reaffirms that no standard has been established under which less qualified persons would be entitled to preferential treatment based on gender.—In the present case where the qualifications of the Applicant were equal to those of the short-listed candidates, APB should have included in the short list the Applicant and others who were similarly qualified.—By not doing so APB misconceived its role under ST/AI/338 and substituted its judgement for that of the Department, preventing the latter from considering all the candidates who were equally qualified.—The Tribunal does not consider that it would be suitable to rescind the decision not to add the Applicant s name to the short list and to order a new selection procedure, or to order his promotion to P-5 at the next opportunity, as it is not certain that, if he were included in the short list, he would have been promoted.—However, he is entitled to compensation for the infringement of his right to fair consideration by APB. Award of compensation ofUSS 2,000.—All other pleas rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Jerome Ackerman, Vice-President; Mr. Francis Spain; Whereas, on 19 May 1993, Joseph Alfred Grinblat, a staff member of the United Nations, filed an application with the Tribunal; Whereas, on 3 December 1993, the Applicant amended his pleas to request the Tribunal: "7. To rescind the decision of the Secretary-General of 12 April 1993 (...), which was based on the recommendation of the

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Joint Appeals Board dated 7 April 1993 on an appeal of the Applicant who was requesting that his name be added to the short list prepared by the Appointment and Promotion Board for the Vacancy No. 92-M-ESA-210-NY, so that he could be considered in the selection for the post, or that, should it be too late, an appropriate compensation be given to him (...). 8. To decide, given that the selection for the post has already been implemented, that the Applicant shall be promoted to P-5 at the next opportunity. 9. To order that the Secretary-General shall pay to the Applicant an appropriate compensation for the damage resulting from having unjustly been excluded from [consideration for] promotion [to] the post above-mentioned. This damage includes: (a) A loss in salary... [which] would cumulate to a little over 31,000 dollars by the time the Applicant would reach retirement age. (c) The moral injury caused by the loss to the professional reputation of the Applicant,..." Whereas the Respondent filed his answer on 30 June 1994; Whereas, on 8 August 1994, the Applicant filed written observations; Whereas, on 11 October 1994, the Tribunal put questions to the Respondent, to which he provided answers on 14 October 1994; Whereas the Applicant submitted comments on the Respondent's reply on 26 October 1994; Whereas the facts in the case are as follows: The Applicant entered the service of the Organization on 30 July 1968, on a probationary contract at the P-l level, as an Assistant Social Affairs Officer in the Department of Economic and Social Affairs, Population Division. He resigned from the Organization, with effect from 1 August 1969. On 2 November 1975, the Applicant re-entered the service of the Organization for the second time, on a two year fixed-term appointment at the P-3 level, as a Population Affairs Officer in the Department of Economic and Social Affairs, Population Division. His appointment was converted to probationary on 1 September 1977 and became permanent on 1 June 1978. On 1 July 1978, the Applicant was transferred to the Department of International Economic and Social Affairs (DIESA), Population Division, Population and Development Section. He was promoted to the P-4 level, with effect from 1 April 1981. On 1 January 1987, he was assigned to the Estimates and Projections Section of the Population Division. On 30 December 1991, the Applicant applied for the P-5 post of Chief, Population Trends and Structure Section, Population Division, DIESA. Selection for the post was conducted under the Vacancy Man-

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agement and Staff Redeployment System (VMS), in force at the time, established in accordance with the Secretary-General's bulletin ST/SGB/221 of 22 December 1986 and administrative instruction ST/AI/338 of the same date. Six internal and three external candidates applied for the post. Five internal candidates, two women and three men, including the Applicant, were found by the Department to meet all the requirements of the post. Their names were submitted to the Office of Human Resources Management (OHRM), which submitted them in turn to the Appointment and Promotion Board (APB). On 7 May 1992, the APB established a provisional short list of two candidates for the post and noted that: "The Board found the above listed women highly qualified for the vacancy in question and at the same time took into account the Secretary-General's bulletin (ST/SGB/237) dated 18 March 1991 on the subject of the improvement of the status of women in the Secretariat." On 11 May 1992, a Recruitment and Placement Officer, OHRM, informed the Applicant that his name had not been included in the provisional short list of candidates established by the APB. On 13 May 1992, the Applicant instituted a recourse against his non-inclusion in the short list. On 9 July 1992, the APB, having considered the recourse, submitted its final short list of two women candidates for the post. On 16 July 1992, the short list was forwarded by the Officer-in-Charge, Recruitment and Placement Division, OHRM, to the Under-Secretary-General, DIESA, for selection. Also on 16 July 1992, the Applicant was informed that his name had not been included in the final short list. On the same date, he wrote to the Secretary-General, requesting a review of the administrative decision not to short-list his name for the post. On 14 August 1992, the Director of the Population Division recommended a candidate from the short list for the post, noting her "exceptional expertise and familiarity with the Section's subject matter and her potential leadership ability." On 25 August 1992, the Department notified OHRM that it had selected the recommended candidate. On 18 August 1992, the Applicant filed a preliminary appeal with the Joint Appeals Board (JAB) and requested "a suspension of action on the short list". On 26 August 1992, the JAB adopted its report on the request for suspension of action which reads, in part, as follows: "16. It is the unanimous finding of the Panel that the relief requested is appropriate in light of the facts presented and the serious allegations made, which dictate a more intensive investigation, and that a suspension of action should be granted pending the decision on the appeal since the implementation of the action would directly and irreparably injure the Appellant."

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On 4 September 1992, the Assistant Secretary-General for Human Resources Management transmitted the JAB report to the Applicant and informed him, inter alia, as follows: "The Secretary-General has re-examined your request in the light of the Board's report. He has especially been mindful of the following circumstances and considerations: (a) that the appeal is against the recommendation by an advisory body to the Secretary-General, the Appointment and Promotion Board, of a short list of candidates which was established after that body had thoroughly considered your recourse; (b) that such recommendation is not an administrative decision within the meaning of staff rule 111.2(a) and (f); even if it were to be regarded as such, it could not be stayed since a final decision on the matter was made prior to receipt of the Board's report by the Secretary-General. This shows a completed administrative action. The Secretary-General has decided to take no action on your request." On 27 August 1992, the Applicant submitted his statement of appeal on the merits to the JAB. The JAB adopted its report on 7 April 1993. Its considerations, conclusions and recommendations read, in part, as follows: "33. The Panel first examined the selection process which led to the contested decision... After reviewing all the steps ..., the Panel concluded that the provisions of administrative instruction ST/AI/338 and Add.l to 6 had been duly applied. 35. The Panel also considered very carefully the Appellant's contention that 'the Appointment and Promotion Board made no comparison of the merits of the two short-listed women versus [his own] qualifications'. . . The Panel was perfectly aware of the fact that it could not substitute its judgement for that of the Appellant's department, OHRM and the Appointment and Promotion Board in making an evaluation or a comparison of the merits of applicants for the post. It therefore limited its examination to the Appellant's contention that his name was not short-listed because the Board knew that he was better qualified than the two selected staff members. It reviewed very carefully the files of the case and was unable to find any evidence in support thereof. 36. Regarding ... [Appellant's claim that the contested decision disregarded in particular the requirement for 'equality of opportunity for all staff in the Secretariat'], the Panel. . . concluded that the Secretary-General acted in compliance with Article 8 of the Charter, the relevant resolutions of the General Assembly and the

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Convention on the Elimination of All Forms of Discrimination Against Women in issuing bulletin ST/SGB/237 to improve the status of women in the Secretariat. 37. ... the Panel was of the view that the Appointment and Promotion Board acted within its mandate and in full compliance with the relevant provisions of the Charter, the Staff Rules and Regulations and the Secretary-General's relevant administrative instructions, in short-listing only two female candidates for the vacancy to be filled. 38. The Panel unanimously: Finds that the contested decision does not disregard the requirement of 'equality of opportunity for all staff in the Secretariat'. Concludes that the decision not to short-list the Appellant did not constitute non-observance of his terms of appointment or of any pertinent regulations or rules. 39. The Panel unanimously recommends that the appeal be rejected." On 12 April 1993, the Under-Secretary-General for Administration and Management transmitted the JAB report to the Applicant and informed him, inter alia, as follows: "The Secretary-General has re-examined your case in the light of the Board's report. He has decided, in accordance with the Board's unanimous recommendation, to reject your appeal." On 19 May 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Applicant is more qualified than either of the two female candidates short-listed for the post, and the decision not to short-list him was motivated by prejudice against his gender, violating Article 8 of the Charter and General Assembly resolutions 44/185 C and 45/239 C. 2. The decision not to short-list the Applicant violated administrative rules and regulations in that: (a) The APB applied the Secretary-General's promotion policy set forth in ST/SGB/237, which is not applicable to short-listing; (b) The short-listing of only two candidates violated administrative instruction ST/AI/338/Add.5, paragraph 10, which provides that short lists should normally contain at least three names; and (c) The APB made no comparison of the merits of the Applicant versus the merits of those short-listed candidates as mandated by administrative instruction ST/AI/338/Add.5, which provides that "the best qualified" shall be short-listed.

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3. The instructions in the Secretary-General's bulletin ST/SGB/237 contravene General Assembly resolutions 44/185 C and 45/239 C as they allow the promotion of candidates who are not necessarily the best qualified. 4. The policy of the Secretary-General regarding promotion of women in the Secretariat is based on the false premise that there has been discrimination against women with respect to promotions. Whereas the Respondent's principal contentions are: 1. The special measures promulgated by the Secretary-General sought to implement Article 8 of the Charter and are in line with the subsequent General Assembly resolutions 44/185 C and 45/239 C. 2. The Secretary-General's instructions gave effect to the mandatory requirements of General Assembly resolutions 44/185 C and 45/239 C without losing sight of considerations of merit, efficiency, competence and integrity. 3. The short-listing of two candidates was within the margin of discretion of the APB. 4. The unequal representation of women in the Secretariat is an Assembly determination of fact. The Tribunal, having deliberated from 11 October to 4 November 1994, now pronounces the following judgement: I. The Applicant asks that the Tribunal rescind the decision of the Respondent dated 12 April 1993, which accepted a Joint Appeals Board recommendation, unfavourable to the Applicant, dated 7 April 1993. Alternatively, the Applicant asks that, since the selection to fill the P-5 post for which he had applied has already been made, he be promoted to the P-5 level at the next opportunity. He also claims compensation for injury he suffered by the omission of his name from the short list. II. There were nine applicants for the post in question, three of whom were external candidates. Five of the candidates, including the Applicant, were found by the Office of Human Resources Management to meet the requirements of the post and their names were accordingly submitted to the APB. Two were women. The APB established a provisional short list with the names of only the two women candidates. In commenting on this, the APB stated: "The Board found the above listed women highly qualified for the vacancy in question and at the same time took into account the Secretary-General's bulletin (ST/SGB/237) dated 18 March 1991 on the subject of the improvement of the status of women in the Secretariat."

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III. Following notification to the Applicant that he had not been included in the provisional short list, he availed himself of the recourse procedure. He was subsequently notified that he had not been included in the final list. The Applicant asserts that his non-inclusion was solely due to preferential treatment given by the APB to the two women candidates and that, in fact, he was better qualified than either. In keeping with its jurisprudence, the Tribunal will not enter into appraisal of the relative qualifications of the candidates. Instead, as explained below, the Tribunal will examine (1) whether the APB went beyond its assigned areas of responsibility under the Vacancy Management System (VMS) in taking ST/SGB/237 into account as it did, and (2) whether its actions were in keeping with resolutions of the General Assembly, and Article 101(3) of the Charter. IV. The Tribunal notes that the APB, in commenting on its short list, did not state that the women listed were the candidates best qualified for the vacancy. The APB's words were that the women listed were "highly qualified for the vacancy". These words do not rule out the possibility that other candidates found by the Department to meet the requirements of the post were equally qualified. V. Because of the ambiguity in the comments of the APB accompanying the short list, the Tribunal requested information as to the manner in which ST/SGB/237 was taken into account and the nature of the consideration it gave to the other candidates. The information received by the Tribunal discloses that the APB found the qualifications of all of the candidates whose names were submitted to it to be substantially equal. Yet, relying on the language of ST/SGB/237 requiring the promotion of women candidates solely on the basis of gender if they met the requirements of the vacant post, the APB omitted the names of equally qualified males from the short list. The Tribunal must, therefore, consider whether, under ST/AI/338/Add.5 on Vacancy Management and Staff Redeployment Provisional Guidelines for Implementation, it was appropriate for the APB to issue its short list based on ST/SGB/237, and the extent, if any, to which the latter may be implemented under the Charter and relevant resolutions of the General Assembly. VI. Under the express language of ST/AI/338, and consistent with Article 101(3) of Chapter XV of the Charter, the APB, in preparing a short list, is to determine who among the applicants are best qualified. Normally, as provided in ST/AI/338, a short list should contain the names of at least three candidates, assuming, of course, that no fewer than three are qualified. If, among the qualified candidates being considered by the APB, only two are considered to be best qualified because the gulf between them and the others is substantial, the APB may quite properly submit a short list containing the names of only those two. On the other hand, if three or more candidates have equal qualifications, a reasonable read-

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ing of the language of the administrative instruction would mandate their inclusion on the short list. VII. The APB took into account the part of ST/SGB/237, of 18 March 1991, which states: "... the following policy shall apply in the area of assignment and promotion: In departments and offices with less than 35 per cent women overall, and in those with less than 25 per cent women at levels P-5 and above, vacancies overall and in the latter group, respectively, shall be filled, when there are one or more female candidates whose qualifications match all the requirements for a vacant post, by one of these female candidates." This, the Respondent argues, is a different and lower standard than one calling for candidates "best qualified" to fill a vacancy, and the Respondent also argues that it represents a lawful affirmative action measure for the improvement of the status of women. In the Respondent's view, ST/SGB/237 permits the APB to exclude from a short list men whose qualifications are equal to those of qualified women. VIII. With regard to ST/SGB/237, the Tribunal considers that its policies, to the extent that they are authorized by the Charter and the General Assembly, may be implemented by an APB in accordance with the functions of the APB specified in ST/AI/338 and its addenda. That administrative instruction defines the role of the APB and has the same effect as a staff rule. IX. The Tribunal notes that with respect to the submission of short lists under ST/AI/338 and its addenda, the functions of the APB include in relation to the improvement of the status of women, identifying and recommending women who have the potential for taking on work of greater scope and complexity. (See ST/AI/338, Add. 5, dated 2 November 1988, para. 14(g).) In addition, special guidelines were provided relating to seniority. (Id., para. 14(f) and Annex II.) However, nothing in ST/AI/338 and its addenda, instructs or authorizes the APB to implement a policy of excluding equally qualified male candidates from a short list in order to ensure that only females can be considered for promotion to a vacant post. X. ST/SGB/237 was issued in response to the Fifth Report of the Steering Committee for the Improvement of the Status of Women in the Secretariat. This report recommended various specific measures thought to be in keeping with the requests in General Assembly resolutions for continued improvement of the status of women in the Secretariat. The Respondent argues that, as can be seen from the ST/SGB/237 promotion policy, in certain cases, female candidates should be promoted if their

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qualifications meet all the requirements for a vacant post, without regard to better qualified candidates. XI. The General Assembly adopted various resolutions for Improvement of the status of women in the Secretariat. These have been cited by the Respondent in support of the validity of a reduced standard for promotion for women as specified in the Secretary-General's bulletin. In its resolution 44/185 of 19 December 1989, the General Assembly, after recalling Articles 8 and 101 of the Charter: "Urges the Secretary-General to strengthen his efforts to increase the number of women in posts subject to geographical distribution, in particular at the senior and policy-formulating levels, with a view to achieving to the extent possible an overall participation rate of 30 per cent of the total by 1990, taking into account the principle that the paramount consideration shall be the necessity of securing the highest standards of efficiency, competence and integrity and with full respect for the principle of equitable geographical distribution." (Emphasis added.) XII. General Assembly resolution 45/239 on Improvement of the status of women in the Secretariat, dated 21 December 1990, begins by: "Reaffirming that the United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs..." (emphasis added), and recalling Article 101 of the Charter, the resolution then: "2. Urges the Secretary-General to continue his efforts to increase the number of women in posts subject to geographical distribution, particularly in senior policy-level and decision-making posts, in order to achieve an overall participation rate of 30 per cent by the end of 1990 and, to the extent possible to 35 per cent by 1995, taking into account the principle that the paramount consideration shall be the necessity of securing the highest standards of efficiency, competence and integrity with full respect for the principle of equitable geographical distribution." (Emphasis added.) XIII. General Assembly resolution 46/100 on Improvement of the status of women in the Secretariat, dated 16 December 1991, after recalling Article 101 and referring to Article 8 of the Charter providing for equal eligibility of men and women, in paragraph 1: "Urges the Secretary-General, in accordance with the Charter of the United Nations, to accord greater priority to the recruitment and promotion of women in posts subject to geographical distribution, particularly in senior policy-level and decision-making posts, in order to achieve the goals set in resolutions 45/125 and 45/239 C of an

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overall participation rate of 35 per cent by 1995 and, to the extent possible, 25 per cent in posts at the D-l level and above by 1995." (Emphasis added.) XIV. In each of the foregoing General Assembly resolutions, which had been adopted before the action of the APB in this case, and which are cited by the Respondent in support of his position, the improvements in the status of women being urged through affirmative action measures were related to the principle of equal treatment for men and women, and were subject to the criterion of securing the highest standards of efficiency, competence and integrity. This criterion was specifically referred to as part of the affirmative action goals in the 1989 and 1990 resolutions and, by reasonable inference, could hardly have been intended to be excluded from application of the 1991 resolution. XV. It follows that when the APB issued the short list, based on the Secretary-General's bulletin, dated 18 March 1991, this was not in conformity with either the 1989 and 1990 General Assembly resolutions, or with the subsequent 1991 General Assembly resolution, to the extent that the bulletin was interpreted as purporting to authorize the promotion of candidates solely on the basis of gender if they merely met the requirements of the vacant post without regard to whether there were better qualified candidates for the post. XVI. In Judgement No. 507, Fayache (1991), paragraph VII, the Tribunal noted that an averaging technique with respect to seniority that increased the number of female candidates who might be considered for promotion to higher level posts did not purport to authorize the promotion of females whose relative qualifications or merit were lower than male collaterals and therefore was in conformity with Article 101 (3) of the Charter. But that is not the situation here, as argued by the Respondent. XVII. The Tribunal recognizes that the various resolutions for Improvement of the status of women in the Secretariat which have been referred to and statements of the Secretary-General have conceded the existence of an unsatisfactory history with respect to the recruitment and promotion of women that does not accord with Article 8 of the Charter. In such circumstances, the Tribunal considers that Article 8 of the Charter must be regarded as a source of authority for reasonable efforts to improve the status of women. It would be anomalous indeed if this unsatisfactory history had to remain unremedied for an unduly long period. Unless affirmative action measures are taken towards ameliorating the effects of this past history, they will, without doubt, be perpetuated for many years. This is incompatible with the objectives of Article 8, as recognized by the General Assembly. Hence, the Tribunal concludes that Article 8 permits the adoption of reasonable affirmative action measures for improvement of the status of women.

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XVIII. In evaluating the reasonableness of affirmative action measures, pertinent provisions of the Charter may not be ignored. The Tribunal considers that, with respect to affirmative action measures, it would be impermissible to view Article 8 of the Charter as overriding Article 101(3), which states: "The paramount consideration in the employment of the staff and in the determination of the conditions of service shall be the necessity of securing the highest standards of efficiency, competence and integrity ..." This language unequivocally establishes a standard under which less qualified persons are not entitled to preferential treatment based on gender. The fundamental principle reflected in Article 101(3) may not be diluted by a desire, however commendable, to overcome past problems. XIX. Even so, there is room for affirmative action. The Tribunal considers that, as long as affirmative action is required to redress the gender imbalance with which the Secretary-General and the General Assembly have been concerned, Article 8 of the Charter would permit, as a reasonable measure, preferential treatment to women candidates where their qualifications are substantially equal to the qualifications of competing male candidates; obviously such a preference is not needed if a woman's qualifications are superior. However, the APB concluded, in this case, that the Applicant's qualifications were equal to those of the short-listed candidates. It should, therefore, have included, in the short list, the Applicant and the others who were equally qualified. It would then have been for the Department to appraise the candidates and make the selection. In doing so, if it also considered the short-listed candidates equally qualified, it would presumably then take affirmative action goals into account. In this instance, the APB, misconceiving its role under ST/AI/338, substituted its judgement for that of the Department, and thus prevented the Department from considering all the candidates found by the APB to be equally qualified. The Applicant's rights were, therefore, not fully respected and the responsibility of the Organization is engaged. XX. The Tribunal does not consider that, in the circumstances of this case, particularly given that all the male candidates were deemed equally qualified by the APB and that the VMS is no longer in effect, it would be appropriate to rescind the Respondent's decision against adding the Applicant's name to the short list and order a new selection procedure for the post. The post has been filled for more than two years by the successful candidate. Furthermore, it would not be appropriate for the Tribunal to order that the Applicant be promoted to the P-5 level at the next opportunity. It is far from certain that, if the Applicant's name had been on the short list, he or any other male candidate would have been selected and ultimately promoted. It is not for the Tribunal to make such a judge-

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ment. For these reasons, the Tribunal will not order the payment of compensation to the Applicant premised on the notion that he would have been promoted had he been short-listed. However, it is appropriate for the Tribunal to order the payment of compensation to the Applicant for the infringement of his right to fair consideration by the APB. This the Tribunal fixes at US$ 2,000. XXI. For the foregoing reasons, the Tribunal orders: 1. The Respondent to pay the Applicant US$ 2,000. 2. All other pleas are rejected. (Signatures) Samar SEN

Jerome ACKERMAN

President

Vice-President

Francis SPAIN

R. Maria VlCIEN-MlLBURN

Member

Executive Secretary

New York, 4 November 1994

Judgement No. 672 (Original: English) Case No. 635: Burtis

Against: The Secretary-General of the United Nations

Application of a former staff member of the United Nations for revision of Judgement No. 575. The Tribunal finds nothing in the Applicant's request which would justify a revision of the previous decision.—It recalls the conditions required by Article 12 of its Statute for revision of a judgement: discovery of a fact of a decisive nature which was not known to the Tribunal and to the party claiming revision at the time of thejudgement as well as the time-limits prescribed by that article.—The Applicant invokes the fact that her claims were misrepresented in Judgement No. 575.—The Tribunal finds that the Applicant has not proven thisfact and recalls its constant jurisprudence that the burden of proof rests upon the party making a positive affirmation.—Applicant's request to be given an opportunity to play a tape purporting to show that that her official UN record had been falsified.—The Tribunal notes that this tape was in the Applicant's possession during the proceedings leading to Judgement No. 575 and therefore cannot be considered as a new fact unknown to her at that time.—While the Tribunal agrees that the Applicant is within the one year time-limit specified in Article 12 of the Tribunal's Statute, she does not satisfy the condition requiring the Applicant to request a revision of a judgement within thirty days of the discovery of the new fact. Application rejected.

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THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Luis de Posadas Montero, Vice-President, presiding; Mr. Mikuin Leliel Balanda; Mr. Mayer Gabay; Whereas, on 12 August 1993, Farida Ghani Burtis, a former staff member of the United Nations, filed an application in which she requested, in accordance with article 12 of the Statute of the Tribunal, the revision of Judgement No. 575, rendered by the Tribunal on 13 November 1992; Whereas the Respondent filed his answer on 10 September 1993; Whereas the Applicant filed written observations on 30 September 1993; Whereas, on 28 October 1993, the Respondent filed an additional statement; Whereas on 11 November 1993, the Applicant submitted an additional statement; Whereas, on 10 October 1994, the Applicant submitted an additional statement, together with additional documents; Whereas, on 18 October 1994, the presiding member of the panel ruled that no oral proceedings would be held in the case; Whereas the facts in the case have been set forth in Judgement No. 575. Whereas the Applicant's principal contentions are: 1. Judgement No. 575 characterizes the Applicant's claims inaccurately. She did not claim that she was not appointed because of adverse information in her official status file, but that falsified information, inserted without her knowledge in other files, was considered in connection with her candidature. 2. The Applicant has new information in the form of a tape recording, in which UN officials admit to a deliberate falsification of the Applicant's official UN record in order to prevent her from being offered the post for which she applied. Whereas the Respondent's principal contentions are: 1. The legal framework for revision of Tribunal judgements is restrictively defined by article 12 of the Tribunal's Statute. 2. The Applicant discloses no basis for the revision of Judgement No. 575, pursuant to article 12 of the Tribunal's Statute. The Tribunal, having deliberated from 19 October to 4 November 1994, now pronounces the following judgement: I. The Applicant requests, pursuant to article 12 of the Statute of the Administrative Tribunal, revision of Judgement No. 575. In that

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judgement, the Tribunal held that it was not competent to receive the application, as the claims and the status of the Applicant fell outside the scope of the Tribunal's jurisdiction, as defined in article 2 of its Statute. The Tribunal finds that the Applicant does not have standing to bring a claim pursuant to the requirements of article 2 of its Statute. II. The Tribunal finds nothing in the Applicant's request which could justify a revision of the previous decision. The Tribunal finds that the Applicant does not allege any new facts of such a nature as to be a decisive factor warranting a revision of the judgement, under article 12 of the Tribunal's Statute. Nevertheless, in view of the importance of some of the issues raised by the Applicant, the Tribunal wishes to offer the following comments. III. Article 12 provides as follows: "The Secretary-General or the applicant may apply to the Tribunal for a revision of a judgement on the basis of the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgement was given, unknown to the Tribunal and also to the party claiming revision, always provided that such ignorance was not due to negligence. The application must be made within thirty days of the discovery of thefact and within one year of the date of the judgement. Clerical or arithmetical mistakes in judgements, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Tribunal either of its own motion or on the application of any of the parties." (Emphasis added.) In order to avail herself of the remedy found in article 12, the Applicant had to satisfy certain conditions. Firstly, she had to demonstrate that the decisive fact on which she is basing her appeal was unknown to her at the time Judgement No. 575 was given. Secondly, the application for revision must be made within thirty days of the discovery of the fact the Applicant is alleging and within one year of the date of the judgement. IV. It appears from the application that the fact on which the Applicant relies, to entitle her to revision under article 12, is that the members of the Administrative Tribunal who rendered Judgement No. 575 may not have known that they "put their signatures on a judgement in which Applicant's claims have been misrepresented..." The Tribunal is of the view that the Applicant has not proven to the Tribunal's satisfaction that her claims were misrepresented. The Tribunal has consistently held that the burden of proof rests upon the party making a positive affirmation, which in this case the Applicant has failed to discharge. V. The Applicant also claims that she has "additional material of a decisive nature, which was not obtainable at the time the judgement was

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given". The material consists of "a tape in which UN officials admit to a deliberate falsification of [the] Applicant's official UN record, so that someone else may get the position". She requests that she be given an opportunity, during an oral hearing, to play this tape. Having reviewed the application dated 15 November 1991, filed by the Applicant to institute the proceedings which led to Judgement No. 575, the Tribunal notes that the Applicant had the tape in her possession at that time. The fact that she chose not to submit it to the Tribunal then, warrants denial of her request to re-open the case under article 12, which makes it clear that facts known to a party before the judgement are not a ground for revision. This is fully in accord with the normal judicial doctrine of res judicata. VI. The second condition that must be satisfied to fulfil the requirements of article 12 is a procedural one: the application for revision must be made within thirty days of the discovery of the fact and within one year of the date of the judgement. In other words, once the decisive fact is discovered, the Applicant must file the application for revision within 30 days thereof. In addition, this can be done only within one year following the date of the judgement in question. VII. The Tribunal has already noted that the discovery of the tape was made prior to 15 November 1991, the date of the initial application. The Applicant thus failed to satisfy the first part of the condition. With respect to the second part of the condition, the Tribunal would agree with the Applicant's contention that the date of Judgement No. 575 is 13 November 1992 and that she was within the one year time-limit, notwithstanding the fact that her application pursuant to article 11 was rejected on 16 July 1993, by the Committee on Application for Review of Tribunal Judgements. VIII. Based on the foregoing considerations, the Tribunal concludes that even if she had standing, the Applicant would not have met the necessary conditions to obtain a revision of Judgement No. 575 pursuant to article 12. IX. For the foregoing reasons, the application is dismissed in its entirety. (Signatures) Luis de POSADAS MONTERO

Vice-President, presiding Mayer GABAY Member New York, 4 November 1994

Mikuin Leliel BALANDA

Member R. Maria VlClEN-MlLBURN Executive Secretary

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SEPARATE OPINION BY MR. Luis DE POSADAS MONTERO I have signed the present judgement only on account of its negative outcome. My opinion is, that the Tribunal, after having ascertained that the new facts submitted by Ms. Burtis in no way altered her status, should have added no further considerations to its judgement. The Tribunal found in Judgement No. 575 that Ms. Burtis, according to article 2.2 of its Statute had no standing to come before it. The only new fact that could warrant a revision of such a conclusion would be one that would invalidate it by demonstrating that Ms. Burtis could be admitted as a party before the Tribunal. This has not been the case; the new facts submitted by Ms. Burtis do not give her standing before the Tribunal. Therefore, in my opinion, the Tribunal should have rejected Ms. Burtis' allegations in limine on the grounds of her lack of standing without addressing itself to the question of whether the requirements of article 12 of the Statute had been met. (Signatures) Luis de POSADAS MONTERO

R. Maria VlCIEN-MlLBURN

Vice-President, presiding New York, 4 November 1994

Executive Secretary

Judgement No. 673 (Original: English) Case No. 730: Hossain

Against: The Secretary-General of the United Nations

Application of a former staff member of the United Nations Children's Fund (UNICEF)for a rescission of decision of dismissal, for reinstatement and for compensation for the prejudice suffered.—Request for costs. The Joint Disciplinary Committee (JDC) found some irregularities in the Applicant's acts amounting to breach of basic standards of management and conduct, though it found no evidence of conscious intention to defraud the organization.—It recommended the Applicant's demotion.—Decision to dismiss the Applicant as disciplinary measure, with payment of three months salary in lieu of notice. The Tribunal examines whether the Applicant's termination on grounds of misconduct was a valid exercise of the authority of the Executive Director ofUNICEF.—It recalls that staffmembers must satisfy the highest standards of efficiency, competence and integrity and the Secretary-General has the authority to terminate appointments when these standards are no longer met.—The choice of the appropriate disciplinary measurefalls within his discretionary power.—The Tribunal's review is limited to determining whether the Secretary- Gen-

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eral's action was vitiated by any prejudicial or extraneous factors, by significant procedural irregularity, or by a significant mistake of fact (Judgement No. 479, Caine).—The Tribunal is disturbed by the fact that the investigative process did not adequately respect the Applicant's right to due process; the Administration is expected to exercise the utmost rigour in investigating charges of misconduct.—Staff member accused of misconduct has the right to be informed of charges and to respond to them.—The Executive Director's conclusion that the Applicant's actions constituted a clear pattern of abuse of rules and regulations is not fully supported by the evidence before the Tribunal.—The fact that the Executive Director did not follow the recommendation of the JDC did not violate the Applicant's rights as the recommendations of the JDC are advisory.—While agreeing with the Executive Director's conclusion that the actions of the Applicant constituted a breach of trust and demonstrated that he did not meet the standards required of an international civil servant, the Tribunal finds that the decision to terminate his appointment was tainted by procedural irregularities for which he is entitled to compensation. Award of compensation of five months of net base salary at the time of separation from service.—All other pleas rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Francis Spain; Mr. Mayer Gabay; Whereas, on 2 May 1993, S.M. Taifur Hossain, a former staff member of the United Nations Children's Fund (hereinafter referred to as UNICEF), filed an application containing pleas which, in part, request the Tribunal to: "(b) Rescind the separation order from the Executive Director UNICEF (DOP/PPSS/NR/92-165 dated 29 December 1992)... (c) [Order the] retroactive reinstatement as an International Professional Officer with all benefits without any prejudice . . . [and] removal of all papers related to this case from my personal file. (d) [Award]... the legal costs... for taking my counsel from India to Dhaka.... approximately US$10,000. Additionally... US$100,000 as compensation for psychological trauma to myself and family and loss of face ..." Whereas the Respondent filed his answer on 8 June 1994; Whereas, on 12 October 1994, the Applicant filed written observations; Whereas the facts in the case are as follows: The Applicant entered the service of UNICEF in Dhaka, Bangladesh on 1 April 1973, on a three month fixed-term appointment as a Field Assistant at the GS-5 level. His appointment was successively extended, and on 7 September 1974, the Applicant was transferred to the Jessore Field Office. On 1 January 1975, his title was changed to District Representative, and on 1 April 1975, he was promoted to the G-6 level. On 2 November 1977, the Applicant was transferred back to Dhaka and his

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title was changed to Programme Assistant. On 1 April 1978, he was promoted to the National Officer (NO) level A, and his title was changed to Assistant Programme Officer, Education Section. On 1 January 1981, his appointment was converted to probationary and became permanent with effect from 1 July 1981. On 1 January 1984, the Applicant was promoted to the NO-B level, and on 1 January 1986, to the NO-C level as Programme Officer. On 17 March 1992, the Chief, Education Section, of the UNICEF Office in Dhaka informed the Chief, Operations Section, that some television (TV) sets procured by UNICEF for distribution to government counterparts had left UNICEF premises but had not reached their destination. She requested that the matter be investigated. On 2 April 1992, an Investigation Committee was appointed "to carry out further investigation into the possible lapse in the distribution of UNICEF's supplied Audio-Visual equipment". The Investigation Committee examined all relevant documentation, reviewed procurement procedures and the issuance of gate passes, and undertook further in-house investigations. The Committee also visited Government and Non-Governmental Organization representatives. On 22 April 1992, the Investigation Committee submitted its report to the UNICEF Representative in Bangladesh. It found that of 51 TV sets, 8 were not accounted for in accordance with gate passes for them. Two were assumed to be those found in the Education Section, leaving 6 sets unaccounted for. Of 68 video-cassette recorders, 6 were missing. All gate passes relating to missing equipment were authorized by the Applicant, almost all during the absence of the Chief of the Section. These gate passes were—nearly all—requested by the Assistant Programme Officer, although, on occasion, the Applicant both requested and authorized the gate passes. The report concluded, "it is obvious that [the Applicant]... and [the] Assistant Programme Officer . . . are major staff involved in fraudulent activities which led to the unaccounted six (6) TVs, six (6) VCRs and other related supply and equipment." On 18 May 1992, the Senior Operations Officer of UNICEF Dhaka and the Chief, Supply Section, UNICEF New Delhi, held an unannounced meeting with the Applicant in Hyderabad (India) to confront him with the findings of the investigation and to invite him to resign from UNICEF and make restitution for the losses involved, or alternatively to request him to prepare a response. The Chief, Field Office, Hyderabad, attended part of the meeting. The Applicant was requested to make a decision on these options within two hours. His request to call the UNICEF Dhaka Office was denied. After a short break in the meeting to consider his options, the Applicant submitted a handwritten resignation which read,"... I offer myself to resign on moral grounds and my responsibility

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as approving officer." At the meeting, the Applicant was given a letter dated 19 May 1992 from the Representative in Bangladesh which stated, inter alia: "We have offered you the option to resign on condition that you restitute fully to UNICEF the value of these items. You chose to decline this offer. You have 14 days from this date, i.e., up to close of business on 2 June 1992, to respond to the charges of misconduct as outlined in this letter, following which we will submit the case to the Executive Director for a decision ... Effective today, you are suspended from duty with full pay..." On 19 May 1992, the Applicant wrote to the UNICEF Representative, India Office, to withdraw his resignation. His letter reads as follows: "You are aware that... and... paid a visit to our Hyderabad Office on 18 May 1992 to acquaint with the outcome of an internal investigation in the Education Section in Dhaka. It was depressing to me that a person with integrity working more than 17 years was harassed on grounds of misappropriation of six TVs/VCRs. The investigation was carried out in my absence and upon my departure from Dhaka, may be with some vested interest. I was not given adequate opportunity for any sort of clarification or was allowed to call Dhaka Office. A letter of suspension was shown to me signed by ... who is not my supervisor at present and I was offered two options to accept without any staff representative or a counsellor. The options were: (1) Resign by 1500 hrs of 18 May 1992 and I can restore all my entitlements, or (2) I can call for an investigation by 2 June 1992 and I miss all my benefits. I called Dhaka and found out most of the items have been traced in the Section. There may be some anomalies in the system for which some corrective steps should have been advised to me by my previous supervisor. I like to mention that I was forced to resign under psychological pressure from... which was created during two hours one-sided deliberations. Keeping the above in mind, I like to withdraw my forced upon resignation and request you to look into the situation once again." On 21 May 1992, the Applicant wrote another letter to the UNICEF Representative, India, discussing the allegations against him and concluding: "... [I] gave in writing my offer to resign under great stress and agony for fear of being deprived benefits as [I] am a person from a

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third world country. Later realizing that [I] have the right to defend my case, [I] have promptly withdrawn my offer to resign in my fax to you of 19 May." On 22 May 1992, the Applicant wrote to the Director, Division of Personnel, requesting that appropriate action be taken "to restore [his] staffship." In a reply dated 1 June 1992, the Director, Division of Personnel, informed the Applicant: "we exceptionally agree to disregard your resignation, in view of the seriousness of your allegation and for the purpose of ensuring that justice is fully served". He requested the Applicant to submit his response within two weeks of receipt of the relevant documents on the case. On 25 June 1992, after a visit with his counsel to Dhaka for meetings with UNICEF staff members and Government officials, the Applicant submitted his response to the charges of misconduct, which reads, in part, as follows: ". .. The Committee apparently overlooked the fact that after my departure from Dhaka, Education Section was reorganized. During the reorganization [a] lot of equipment was moved and possibility of misplacing can not be simply discounted. This is evident from the fact that 2 VCRs, 1 TV and 1 Stabilizer were located in the section around 18/19 May 1992. Information like discovery of more equipment in the section subsequently was not shared with me. On going through documents you will notice that I have responded fully to each and every allegation made against me. I HAVE PROVED THAT THERE WAS NO MISCONDUCT OR MISAPPROPRIATION OF ANY EQUIPMENT ON MY PART." On 30 June 1992, the Investigation Committee submitted comments to the UNICEF Representative, Dhaka, on the Applicant's response to the allegations and reconfirmed its original conclusion that the Applicant and the Assistant Programme Officer had "misused UNICEF property." On 13 July 1992, the UNICEF Representative, Dhaka, transmitted the report of the Investigation Committee, together with related documentation, to the Director, Division of Personnel, stating inter alia: "Two TVs are missing and the whereabouts of these are not addressed in [the Applicant's] response; Two gate passes signed by [the Applicant] were issued in the name of persons not employed by the Ministry of Education (. ..); One TV and two VCRs reappeared in the UNICEF Education Section and three TVs and one VCR in the Ministry of Education stores after .. . and ... were presented with the allegations; and

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There are several inconsistencies in the reply of [the Applicant]. I recommend that UNICEF take this matter most seriously and separate the staff member on the grounds of a breach of our basic standards of management and conduct." A Joint Disciplinary Committee (JDC) was established on 23 August 1992. On 22 October 1992, it submitted its report to UNICEF Headquarters containing the following summary of its conclusions: "In summary the JDC states that there was loss of value to UNICEF, and that some compromise of UNICEF/GOB [Government of Bangladesh] relations ensued and this was a result of pre-conceived acts. There is however, no evidence to suggest it was consciously intended to defraud the organization but was rather a knowing and wilful approval for misappropriation and misuse of UNICEF equipment, most probably by Senior Government officials." The JDC made the following recommendation in paragraph 6 of its report: "JDC recommends that given the nature of the wrong doing, that the S/M [staff member] be demoted, and two members (...) of the JDC believe he should not be considered for promotion nor for management responsibility for a considerable period in the future, (say 7-10 years)." By letter dated 29 December 1992, the Applicant was notified of his dismissal for misconduct, with effect from two weeks after the date of its receipt. The letter read, in part, as follows: "... The main points of the JDC's findings are highlighted below: — that you breached UNICEF rules by issuing gate passes, in two separate instances, in fictitious names, and that you knowingly approved the misappropriation of equipment, although not for your own personal material gain; — that you knowingly broke basic rules of conduct and procedure of UNICEF, specifically by authorizing irregular activities on at least two occasions. — that you contributed to jeopardizing relations between the Government of Bangladesh and UNICEF; — that you are held responsible and accountable for one missing TV set. The JDC recommended to take disciplinary measures against you, in the form of a demotion. Additionally, two members recommended that you not be considered for promotion nor for management responsibility for a considerable period in the future.

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Having considered all the facts and findings,... the Executive Director has concluded that your actions indicate a clear pattern of abuse of UNICEF's rules and regulations. The Organization views very seriously such actions, particularly as you were, by virtue of your official position, a Senior National Officer responsible for the equipment in the UNICEF Education Section in Dhaka, Bangladesh. Therefore, while noting the recommendation of the JDC, the Executive Director has decided that given the gravity of such actions, you be separated from service as a disciplinary measure under staff rule 110.3(a). While normally staff on project personnel appointment would only receive thirty days salary in lieu of notice, the Executive Director has exceptionally decided to pay you for three months salary in lieu of notice, as provided in staff rule 109.3, taking into account that prior to your project personnel appointment you were the holder of a permanent appointment in the National Officer category.... On 6 January 1993, the Applicant requested the Executive Director of UNICEF to reconsider the decision to separate him from the Organization. In a reply dated 14 January 1993, the Division of Personnel informed the Applicant that "the final decision of the Executive Director remains as stated". On 2 May 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Investigation Committee which framed the initial charges against the Applicant lacked depth and thoroughness, knowingly hid facts, knowingly accepted false evidence, and forged evidence to support charges against the Applicant. Hasty conclusions were drawn from the report of the Investigation Committee, which were forwarded to Headquarters and later disproved, raising questions about the motives of the Representative, whose intention was to malign and punish the Applicant for professional differences. 2. The conduct of the Investigation Committee violated the basic principles and procedures of staff rule 110.4. The Applicant was not informed of the investigation proceedings. He had a right to be informed of the accusations against him and a right to defend himself before the Representative concluded that he was guilty. This was evidenced by the request that he resign immediately, when he was confronted with the charges against him. 3. The request for the Applicant's resignation violates staff rule 209.1 (a) which states: "A resignation within the meaning of these rules is a separation initiated by the individual." Whereas the Respondent's principal contentions are:

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1. The United Nations Charter and the United Nations Staff Regulations and Rules require that staffmeet the highest standards of integrity. The Secretary-General and, by delegation, the Executive Director of UNICEF have the responsibility to ensure that these standards are maintained. 2. The Applicant's dismissal was preceded by a fair hearing which fully respected his due process rights. The Tribunal, having deliberated from 12 October to 4 November 1994, now pronounces the following judgement: I. The Applicant requests, inter alia, that the Tribunal rescind the decision by the Executive Director to dismiss the Applicant for misconduct and order the retroactive reinstatement of the Applicant. He also seeks compensation for psychological trauma and humiliation amongst his colleagues, and requests official reprimand of certain named officials for their conduct in the investigation of his case. The issue before the Tribunal is whether the termination of the Applicant's employment on grounds of misconduct was a valid exercise of the Executive Director's authority. II. Article 101, paragraph 3 of the United Nations Charter and staff regulations 4.1 and 4.2 call for the recruitment of staff members "of the highest standards of efficiency, competence and integrity." Correlatively, the authority exists to terminate appointments when these standards are no longer met. The Executive Director, by delegation from the Secretary-General of the United Nations, has the authority to dismiss staff members for misconduct pursuant to staff regulation 10.2. In a case of misconduct, the choice of the appropriate disciplinary measure falls within the Secretary-General's discretionary power. In this regard, the Tribunal held in Judgement No. 479, Caine (1990), that: "... the Respondent is not required to establish beyond any reasonable doubt a patent intent to commit the alleged irregularities, or that the Applicant was solely responsible for them. The Tribunal's review of such cases is limited to determining whether the Secretary-General's action was vitiated by any prejudicial or extraneous factors, by significant procedural irregularity, or by a significant mistake of fact." (See also Judgements No. 424, Ying (1988) and No.425,5n/zwa/(1988).) III. The Applicant claims that UNICEF officials in the Dhaka Office continually "shifted the charges" against him. The central charge made by the Investigation Committee, in its report of 22 April 1992, was the Applicant's alleged involvement "in fraudulent activities which led to the unaccounted six (6) TVs, six (6) VCRs and other related supply and equipment." Along with this main charge, the Applicant was accused of issuing two gate passes to persons not employed by UNICEF.

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Based on these charges, the UNICEF officials in the Dhaka Office asked the Applicant for his resignation. Subsequently, having resigned and then withdrawn his resignation, the Applicant responded to the charges against him in a communication to the Investigation Committee. The Investigation Committee consequently submitted a second report, dated 30 June 1992, which involved only two missing TVs and one screen. This second report was transmitted to UNICEF Headquarters in New York on 13 July 1992. A Joint Disciplinary Committee (JDC) was convened to consider the charges of misconduct against the Applicant. In its report submitted on 22 October 1992, the JDC concluded that the Applicant was responsible for only one unaccounted TV and the unauthorized issuing of gate passes. IV. The Tribunal finds the continuous modification of the findings against the Applicant disturbing, especially in the light of his contention that the investigation lacked thoroughness and was tainted by the manipulation of evidence. A charge of fraudulent activity is a serious and damaging allegation, which may cause humiliation and irreparable harm to the personal and professional reputation of the accused and to his or her prospects for career advancement. In this instance, the charges led to the termination of the Applicant's employment after nearly twenty years of service with the United Nations. In the circumstances, the Administration is expected to exercise the utmost rigour in investigating charges of misconduct. In this case, the investigative process, which appears to have resulted in a frequent modification of the alleged facts underlying the charges against the Applicant, did not adequately respect the Applicant's right to due process. V. It is a fundamental right of any staff member accused of misconduct to be informed of the charges against him or her and to be given an opportunity to respond to them. The manner in which the Applicant was initially informed of the charges against him, with a simultaneous demand for his "resignation", deprived the Applicant of an opportunity to respond to the charges before a determination of his culpability was made. There is some evidence that the Applicant may have been subjected to psychological pressure at the two hour meeting attended by two, and at times three, UNICEF officials to discuss the charges against him. The Applicant was suddenly faced with these charges, without any advance notice even of the meeting. Moreover, during that meeting, the Applicant requested and was denied permission to make a telephone call from Hyderabad (India) to Dhaka. Indeed, these unsatisfactory aspects of the case were indirectly referred to by the Director, Division of Personnel, in his letter to the Applicant, dated 1 June 1992, accepting the withdrawal of the Applicant's resignation and stating inter alia:

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"[We] exceptionally agree to disregard your resignation, in view of the seriousness of your allegation and for the purpose of ensuring that justice is fully served." VI. The JDC subsequently reviewed the charges of misconduct against the Applicant. Its main findings, as summarized in the Applicant's letter of dismissal, were: "— that [the Applicant] breached UNICEF rules by issuing gate passes, in two separate instances, in fictitious names, and that [the Applicant] knowingly approved the misappropriation of equipment, although not for [his] own personal material gain; — that [the Applicant] knowingly broke basic rules of conduct and procedure of UNICEF, specifically by authorizing irregular activities on at least two occasions; — that [the Applicant] contributed to jeopardizing relations between the Government of Bangladesh and UNICEF; — that [the Applicant is] held responsible and accountable for one missing TV set." The JDC recommended that disciplinary measures be taken against the Applicant, in the form of demotion, and that he not be considered for promotion or management responsibility for a considerable period in the future. However, the Executive Director concluded that the Applicant's actions indicated "a clear pattern of abuse of UNICEF's rules and regulations". He therefore decided to terminate his appointment as a disciplinary measure, with payment of three months net base salary in lieu of notice of termination. VII. Notwithstanding the Executive Director's discretionary power in this respect, his conclusion that the Applicant's actions constituted "a clear pattern of abuse of UNICEF's rules and regulations", which formed the basis of his decision, is not fully supported by the evidence before the Tribunal. The Executive Director asserted, in his letter to the Applicant of 29 December 1992, that this conclusion was based upon the facts and findings of the JDC report. However, the JDC found the Applicant guilty of less than what he was charged with. For example, in paragraph 4.1 of its report, concerning "Allegation of Misconduct No. 2.1", the JDC concluded: "The currently unaccounted items are 1 TV, and 2 VCRs, as much of the original missing equipment has been located and/or returned. There is no evidence that the S/M [staff member] was responsible for the missing two VCRs. The S/M is held responsible and accountable for the one missing TV." Similarly, with respect to "Allegation of Misconduct No. 2.2" the JDC concluded in paragraph 4.2 of its report:

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"There is no evidence that the staff member personally despatched any goods or equipment. Only in the two cases where the staff member requested and approved gate pass [sic], is he considered by the JDC to be in breach of normal UNICEF rules and procedures." These conclusions do not indicate that there was a pattern of abuse with which the Applicant was initially charged. VIII. The fact that the Executive Director did not follow the recommendation of the JDC to demote the Applicant and decided instead to terminate the Applicant's appointment did not, in the Tribunal's view, violate the Applicant's rights, as recommendations of the JDC are advisory. (Cf. Judgement No. 582, Neuman (1992).) However, the decision to separate the Applicant must be considered in the light of the procedural irregularities which took place in the initial stages of the investigation. The Executive Director's decision to separate the Applicant for misconduct, despite the JDC's recommendation for more lenient disciplinary sanctions, was apparently based on a factual finding which is not fully supported by the findings of the JDC. In addition, the procedural irregularities in the conduct of the initial phase of the investigation deprived the Applicant of his right to be informed of the charges against him and to present a defence. In the light of these circumstances, the Tribunal finds that the decision to terminate the Applicant's appointment was tainted by procedural irregularities. For this, the Applicant is entitled to compensation. IX. The Tribunal, however, agrees with the Executive Director's conclusion that the actions and omissions of the Applicant, on which his decision to separate him were based, constituted a breach of trust and displayed a lack of honesty and trustworthiness which demonstrated that the Applicant did not meet the standard required of an international civil servant. X. For the reasons set forth above, the Tribunal orders the Respondent to pay to the Applicant five months of his net base salary at the time of his separation from service. All other pleas are rejected. (Signatures) Samar SEN

President Mayer GABAY

Member New York, 4 November 1994

Francis SPAIN

Member R. Maria VlCIEN-MlLBURN

Executive Secretary

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Judgement No. 674 (Original: English) Case No. 752: Gonda

Against:

The Secretary-General of the United Nations

Application of aformer staff member of the United Nations for a rescission of decision of dismissal, for reinstatement, for submission of his contract to the body invested with the power to convert it and for compensation for the prejudice suffered. The Joint Disciplinary Committee (JDC), while of the opinion that there was no need to submit the case to the disciplinary process, found that the Applicant was guilty of misconduct and that he did not meet the standards of integrity required of an international civil servant.—Decision to separate the Applicant for misconduct, with payment of compensation in lieu of notice. Request for production of documents and witnesses rejected, as the information before the Tribunal is adequate. The Tribunal recalls that staffmembers must satisfy the highest standards of efficiency, competence and integrity and the Secretary-General has the authority to discipline them when these standards are not met.—The choice of the appropriate disciplinary measure, one of which is dismissal, falls within his discretionary power.—Applicant's contention that it was for the appointment and promotion bodies to determine his qualifications for a permanent appointment while he was still on a probationary appointment and that the decision was not to be based on advice from the JDC.—The Tribunal finds that this was not a case of reviewfor appointment or promotion but one in which the Applicant was charged with misconduct.—Only the JDC has jurisdiction to hear disciplinary cases with appropriate due process safeguards.—The Tribunal agrees with the JDC that, during the probationary period, it is the responsibility of the staff member to demonstrate his or her integrity; the Respondent is only required to come to a reasonable judgement based on the observation of the staff member's conduct and performance.—Review of the Applicant's employment history.—The Tribunal rejects, in the light of « The Standards of Conduct in the International Civil Service », the Applicant's claim that the Respondent interfered with his private life.—The Applicant failed to meet the burden of proof—which rested with him—of prejudice or other improper motivation.—The Tribunal finds that the Secretary-General acted within his discretionary power to separate the Applicant for misconduct and that this was not vitiated by a mistake of fact, by lack of due process or by prejudice or any other extraneous factors. Application rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, Vice-President, presiding; Mr. Mikuin Leliel Balanda; Mr. Mayer Gabay; Whereas at the request of Cyriaque Gonda, a former staff member of the United Nations, the President of the Tribunal, with the agreement of

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the Respondent, extended the time-limit for the filing of an application with the Tribunal to 31 August 1993; Whereas, on 30 August 1993, the Applicant filed an application containing pleas which read, in part, as follows: "II. Pleas ... to submit my contract to the body legally invested with the power to convert it or extend it within the time-limits established by the rules. ... to compensate me for the services I rendered, at the expense of great sacrifices, after the end of the established two-year period. ... to apply the appropriate provisions in case of separation (if that should occur), in particular the appeals procedure and the application of staff rule 109.3(b). D. ... [to pay] compensation of at least nine hundred and fourteen thousand seven hundred and forty-three American dollars and sixty-three cents, in accordance with article 9, paragraph 1, of the Statute [To rescind] ... the decision of the Secretary-General and [to continue]... my appointment." Whereas the Respondent filed his answer on 22 November 1993; Whereas the Applicant filed written observations on 29 January 1994; Whereas the Applicant filed corrections to his written observations on 1 February 1994; Whereas the Applicant submitted additional documents on 12 October 1994; Whereas the facts in the case are as follows: The Applicant entered the service of the United Nations on 31 December 1989, on a two-year probationary appointment as an Associate Recruitment and Placement Officer, General Service Staffing Section, Recruitment and Placement Division (RPD), Office of Human Resources Management (OHRM), at the P-2 level. He was separated from service on the grounds of misconduct, with effect from 18 February 1993. On 22 October 1991, the Applicant had completed his section of a performance evaluation report (PER), covering the period 31 December 1989 to 31 October 1991. On 23 December 1991, the Chief, General Service Staffing Section, RPD, OHRM, signed the PER as first reporting officer, and on 10 January 1992, the Director, RPD, signed the PER, giving the Applicant an overall rating of "a good performance." On 23 April 1992, the Assistant Secretary-General, OHRM, signed the PER.

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Prior thereto, following allegations that the Applicant had engaged in sexual harassment, the Director, Staff Administration and Monitoring Service, had established an informal Board of Inquiry to investigate these allegations. The Board of Inquiry held ten meetings in late 1991 and early 1992, during which a number of interviews were conducted. On 6 January 1992, the Board of Inquiry submitted its report to the Director, Staff Administration and Monitoring Service. The conclusions of the report read, in part, as follows: "37. . . . [the Applicant] has conducted himself in a manner that is inappropriate. At the same time, the Board considers that the extent of [the Applicant's] misconduct should be judged against the backdrop of the Organization's responsibility in guiding and supervising newly recruited, young and inexperienced staff members." On 14 February 1992, the Assistant Secretary-General transmitted the report of the Board of Inquiry to the Applicant, noting that the Board had not established any misconduct on the Applicant's part but requesting him to bear in mind the Board's observations in his future dealings with candidates and colleagues. On 27 February 1992, an applicant for employment with the United Nations wrote a letter of complaint to the Chief, General Service Staffing Section. She stated that she had come to the United Nations seeking a secretarial position, and the Applicant had suggested that she take English and typing courses. She had requested money for these courses from her parents, who had sent her a cheque, which the Applicant offered to cash for her. She stated that he had cashed two cheques for her, but had not given her money for the third cheque, in the amount of $380, which he had taken. She said that a friend had tried to convince him to give her the money and that he had replied "that he had done a lot for [her]." She concluded with the request, "I hope you'll be able to make him give me my parents money to pay for my school." On 3 March 1992, the Director, RPD, forwarded this letter to the Assistant Secretary-General, OHRM, and informed him that he had questioned the Applicant on the allegations contained therein. The Applicant had explained that the job applicant who wrote the letter was a classmate and close friend of his brother's, that she had often visited his home, and that his family had been helpful to her on many occasions. He said that it was his brother who had cashed the cheques for her, that he "had been aware of some confusion regarding the third cheque," and that he had given his brother the money to send her, and told her that the money was being mailed. The Director, RPD, reported that he had then called the job applicant to ask whether she had received the money. She told him that "she was not a friend of [the Applicant's] brother, that they had never been students together, and that she had only met his family on 31/12/91

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when [the Applicant] had invited her to his home..." With respect to the third cheque, she confirmed that they had discussed it recently but that the Applicant told her that he had lost the cheque. In conclusion, the Director, RPD, stated: "In view of the wide discrepancies between the two versions of the situation and the possibility of inappropriate conduct on the part of [the Applicant] in his relations with an applicant, I propose that SATD [Staff Administration and Training Division] be requested to investigate this incident." Subsequently, in a note for the file, dated 20 March 1992, a Personnel Officer indicated that the job applicant had confirmed that she had received from the Applicant the proceeds of the third cheque. The Personnel Officer recorded his telephone conversation with her, noting: "[She] stressed that she met [the Applicant] only when she applied for employment with the United Nations. He tried to date her and had called her at home on some occasions. Considering his assurances and offers of help, she did not know how to best deal with him because she did not want to lose her opportunity to work for the UN. ''

In a letter dated 20 March 1992, to the Assistant Secretary-General, OHRM, the Director, RPD, made reference to the calls he had received from the job applicant regarding the cashing of her cheque, and stated further that: "... even though no disciplinary action has been taken, [the Applicant] has now behaved on two occasions in a manner incompatible with the conduct expected of a Recruitment and Placement Officer, acting towards applicants for employment in ways that reflect on the integrity of the Recruitment and Placement Division. In the circumstances, I am not in a position to recommend that he be offered a permanent appointment in his present functions." On 29 June 1992, in a note for the file, the Officer-in-Charge, Allowances and Benefits Unit, recorded that she had been contacted several times since September 1991 by the Bursar of the school in which the Applicant's three children were registered for the academic year 1991/1992. After the first call, she certified to the Bursar the payment of an education grant advance to the Applicant. She noted that the Bursar subsequently called, two or three times, concerning late payment of the school fees by the Applicant. In February, he called again to inform the Officer-in-Charge, Allowances and Benefits Unit, that the children had been expelled from the school because of the recurrent late payments and the fact that most of the Applicant's cheques had been dishonoured by the bank on which they had been drawn. In a letter dated 13 May 1992, the

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Bursar indicated the particulars of the payments made by the Applicant, totalling $ 11,771.07, which was less than the $ 13,110.00 he had received as an advance on 8 October 1991, and less than the $20,950.60 due for tuition. On 30 June 1992, the Director, SATD, OHRM, wrote to the Applicant regarding the review of his probationary appointment. She added that before the review, she wished "to request your comments on certain allegations which have been made against you, and on which you have not had the opportunity to present your views for the record." The allegations transmitted to the Applicant for comment were (i) his failure, for almost a year, to remit to a job applicant the funds he obtained in cashing a cheque for her; and (ii) his failure to remit to the school in which his children were registered, the full amount he had received from the United Nations as an advance on his education grant. She requested the Applicant's comments by 17 July 1992. In his first comments on the allegations, dated 7 July 1992, the Applicant claimed that the job applicant was "not as you say in your memorandum, a candidate for employment that I happened to know through my work as RPO [Recruitment and Placement Officer]," but rather a 'Very good and long-time friend of my family..." With regard to the education grant advance, the Applicant explained that he had withdrawn his children from the school "due to the intolerable and inhuman and uncivilized treatment that my children were subjected to..." In conclusion, he stated that he was "tired of this systematic victimization." In subsequent comments, dated 10 July 1992, the Applicant noted that his probationary appointment, effective 31 December 1989, should have been reviewed before December 1991. He claimed that under staff rule 104.12(a), as his probation had not formally been extended, he had the right to expect an automatic conversion to a permanent appointment. On 4 August 1992, the Director, SATD, OHRM, informed the Applicant that the Secretary-General had decided to refer his case to the Joint Disciplinary Committee (JDC) as he had "failed to meet the standards of integrity expected of international civil servants". Thus, he had failed to remit the proceeds of a cheque he had cashed for a job applicant, failed to use the full amount of the education grant advance he had received from the United Nations to pay the educational institution, in accordance with its payment schedule and he had not informed the United Nations of his lesser payments. On 26 January 1993, the JDC adopted its report. Its considerations and conclusion read, in part, as follows: "20. The Panel observes that it is for the staff member to demonstrate his integrity during the period of probation. The Administration is not required to prove beyond a reasonable doubt that the staff member is

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guilty of misconduct even once—much less thrice. The Administration is required to come to a reasonable judgement as to a staff member's fitness for permanent appointment on the basis of its observation of his conduct and performance, and it must be prepared to justify that judgement in the event of an appeal. The Panel sees no reason for the Administration to have invoked the costly and cumbersome disciplinary process, instead of making a rational judgement as to [the Applicant's fitness for permanent appointment on the basis of the. facts already available to it. 21. The Panel felt, nevertheless, that it had to deal with the two charges referred to it. In the first, concerning [the job applicant] and the checks, the Panel found [the Applicant's] several statements difficult to reconcile and, consequently, difficult to believe. For example, he told the Panel that there had been no third check, and that he had paid her for it twice—once before she complained, and once after. Again, that, on the advice of counsel—who did not appear—he had signed a statement that there were three checks, but, actually, there were only two, but he had paid her four times. On this charge, the Panel finds that the Administration has not proven misconduct. By his testimony, however, [the Applicant] has created strong doubts as to his veracity. 22. In his testimony on the second charge, [the Applicant] again gave cause to question his credibility. For example, despite his several assertions concerning his commitment to his children's welfare, he could not remember the name of the school they attended from March to June of 1992. The Panel noted that [the Applicant] was not a stranger to the education grant procedures; he had been through them twice before. He should have informed and reimbursed the Organization promptly, even though the Administration had been less than diligent in following up. 23. [The Applicant] acknowledged that at least one of his checks was returned for insufficient funds and that at least one other of his payments to the Lyceum Kennedy was late. There was no explanation offered why he had retained the remainder of the advance until (at least) the date of his testimony. It was clear to the Panel that he had, as charged, used UN monies for purposes other than that for which it had been advanced to him, and that, therefore, he was guilty of misconduct. 24. The Panel also concluded that [the Applicant] still owed money to the Lyceum Kennedy, and that his relations with that school had tended to bring the UN into disrepute.... Conclusion 26. The Panel finds that [the Applicant] does not meet the standards of integrity required of an international civil servant and is, therefore, not worthy of permanent appointment."

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On 12 February 1993, the Director of Personnel transmitted the JDC report to the Applicant and informed him, inter alia: "The Secretary-General... has taken note of the Committee's finding that you had, as charged, used UN monies for purposes other than that for which those monies had been advanced to you and that, therefore, you were guilty of misconduct. He has also taken into consideration the entirety of the record in your case, including a prior finding by the Board of Enquiry of inappropriate conduct. The Secretary-General has concluded that your conduct has seriously deviated from the UN standards of conduct and integrity expected of each staff member of the Organization and this misconduct is incompatible with continued service with the Organization. Pursuant to his discretionary authority to impose an appropriate disciplinary measure, the Secretary-General has decided to separate you from service for misconduct under staff regulation 10.2 paragraph 1 and staff rule 110.3(a)(vii) with effect from the date you receive this letter. The Secretary-General has also decided that you be paid compensation in lieu of notice in accordance with staff rule 109.3(b) and an indemnity pursuant to Annex III(c) to the Staff Regulations in the amount of one half of the termination indemnity provided under paragraph (a) of the same Annex." On the same date, the Applicant wrote to the Secretary-General, noting that after his two years of probationary service, on 23 December 1991, he had been given a satisfactory performance evaluation and that the Chief, General Service Staffing Section, and the Assistant Secretary-General, OHRM, "assured me at that time that it was only a matter of formality to finalize the conversion of my contract to permanent..." He requested urgent consideration of the matter. In a reply dated 25 February 1992, the Officer-in-Charge, OHRM, recalled that during the Applicant's employment, serious allegations had been made against him which had been investigated by the JDC. In light of the JDC's recommendation, the Secretary-General had decided to impose the disciplinary measure of termination. On 30 August 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Secretary-General's decision to dismiss him for misconduct was made on the basis of an improper assessment of facts and procedural errors. Any decision relating to the eligibility of the Applicant for permanent appointment, following the two year probationary period, should have been made by the Appointment and Promotions Committee, in accordance with staff rule 104.13, and not by a JDC.

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2. In accordance with staff rule 104.12(a), the Applicant has the right to automatic conversion of his probationary appointment to a permanent appointment, as his probation was not formally extended and he was given a satisfactory performance evaluation. Whereas the Respondent's principal contention is: The Secretary-General has broad discretion with regard to disciplinary matters, including determinations of what constitutes misconduct warranting dismissal. The Secretary-General's decision to dismiss the Applicant was a valid exercise of that discretionary authority, and was not vitiated by a mistake of fact, lack of due process, prejudice, or other extraneous factors. The Tribunal, having deliberated from 13 October to 4 November 1994, now pronounces the following judgement: I. The Applicant seeks the rescission of the decision of the Secretary-General to dismiss him for misconduct. In addition, he seeks damages of $914,743 in compensation for the moral, physical and professional harm he suffered. The Applicant argues that: (1) the Secretary-General's decision to dismiss him for misconduct was reached by an improper assessment of facts; (2) the decision was vitiated by errors of procedure; and (3) the Applicant's probationary appointment had exceeded two years; as he had performed satisfactorily during this period, his separation from service constituted a violation of his rights. Indeed, the issue in this case is essentially whether the rights of the Applicant were violated by his dismissal for misconduct. The Applicant has requested the production of documents and witnesses. The Tribunal has considered these requests and decides to reject them. The information already before the Tribunal is adequate for the resolution of the case. II. The Applicant was recruited by the United Nations and given a probationary appointment on 31 December 1989. He served as an Associate Recruitment and Placement Officer at the P-2 level. As a staff member of the United Nations, he had the responsibility to fulfil certain obligations under the Charter and the Staff Regulations (Judgement No. 377, Jabri (1986). Staff regulation 1.4 sets forth those basic obligations: "Members of the Secretariat shall conduct themselves at all times in a manner befitting their status as international civil servants. They shall not engage in any activity that is incompatible with the proper discharge of their duties with the United Nations. They shall avoid any action... which may adversely reflect on their status, or on the integrity, independence and impartiality which are required by that status...."

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III. The Respondent determined that the Applicant failed to meet his obligations and dismissed him for misconduct. The responsibility to appoint staff members and the corollary power to dismiss them is vested in the Secretary-General. Article 101 of the Charter states that the Secretary-General must give paramount consideration to employing staff of the "highest standards of efficiency, competence and integrity" (emphasis added). Correlatively, when staff do not meet these standards, the Secretary-General has the responsibility to discipline them. This Tribunal has held, in a number of previous decisions, that the choice of disciplinary measure to be imposed on those failing to meet those standards falls within the Secretary-General's discretionary power (Judgements No. 424, Ying (1988); No. 425, Bruzual (1988) and No. 429, Beyele (1988)). The choice of dismissal as a disciplinary measure is available and is set forth in staff rule 110.3. IV. Throughout his application, the Applicant insists that his dismissal was illegal. One of his main contentions is, that it was for the appointment and promotion bodies to determine his qualification for permanent appointment and this decision was not to be based on advice from the Joint Disciplinary Committee (JDC). V. It is clear to the Tribunal that the charge against the Applicant was one of misconduct; he was not being reviewed for appointment or promotion. If misconduct charges are to be considered, these charges must be reviewed in the context of JDC proceedings and not in the context of a contract review where the due process safeguards of the disciplinary process are not present (Judgement No. 610, Ortega (1993)). In fact, staff rule 110.4(b) provides that except in the case of summary dismissal, no disciplinary measure may be imposed until the matter has been referred to the JDC. Only the JDC has jurisdiction to hear disciplinary cases. VI. Turning to the charges of misconduct which led to the Applicant's dismissal, the Tribunal, at the outset, reiterates a point made by the JDC when it reviewed this case. During the probationary period, it is the responsibility of the staff member to demonstrate his or her integrity. The Respondent is not required to prove beyond a reasonable doubt that a staff member is guilty of misconduct. He is only required to come to a reasonable judgement on the staff member's fitness for permanent appointment, based on the observation of his or her conduct and on the evaluation of his or her performance. VII. The Tribunal notes the Applicant's dissatisfaction with the tenor of the JDC report's ultimate conclusion that he was not worthy of permanent appointment. Although it would have been desirable for the JDC, in keeping with its mandate, to state its recommendations in terms of disciplinary action, in this case, the Tribunal considers this point a matter of semantics. The Tribunal finds, as the Respondent evidently did, that

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the JDC's statement was tantamount to a recommendation of dismissal. It is clear that the JDC found that the Applicant had engaged in misconduct and had failed to meet the standards required of an international civil servant. VIII. The Applicant's history at the United Nations was problematic. In late 1991 and early 1992, a Board of Inquiry investigated allegations of sexual harassment made against the Applicant by several women candidates for job openings within the domain of the Applicant's responsibility. Following its investigation, the Board concluded that the Applicant "had conducted himself in a manner that was inappropriate". On 27 February 1992, an applicant for employment complained to the United Nations that the Applicant obtained a cheque from her for $380.00 on the representation that he would cash it for her. He then failed to remit the proceeds. She claimed that she had met the Applicant when she applied for employment with the UN. It was only a year later, following her complaint, that the Applicant remitted the proceeds to her. In reviewing this incident, the Tribunal fully agrees with the JDC in its conclusion that the Applicant's explanation regarding the charge lacked veracity. He made contradictory statements which led the JDC and now leads the Tribunal to question his credibility. IX. The third incident which occurred during the Applicant's employment with the UN relates to the education grant advanced by the Organization for the Applicant's children. The Applicant failed to use the full amount of the advance to pay the educational institution in accordance with its payment schedule. He failed to inform the Organization that the educational expenses actually paid by him were substantially lower than those on which the advance had been based. The Applicant claims that the Respondent overstepped his powers by involving himself in his private life. This was not the case. "The Standards of Conduct in the International Civil Service" provide: "53. In principle, the private life of the international staff member is his concern and should not be intruded upon by his organization. At the same time, in order that his private life will not bring his organization into disfavour, he must set himself a high standard of personal conduct... 54. Scrupulous compliance with laws of the host country,... honouring of financial obligations—these are only a few of the obvious requirements which derive from the general principle." X. The Tribunal observes that the Applicant glosses over the issue of misconduct and attempts to minimize its seriousness. His main contention is that the Organization wronged him by not granting him a permanent position. His claim is that the Organization is using these charges in

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order not to grant him such a position, which he strongly believes is due to him. The Applicant contends that, in dealing with his case, the Respondent acted in an abusive and prejudicial manner. The Tribunal has carefully studied the Applicant's submission. It is of the view that the Applicant has not established his case; his contentions are at times erroneous and at times incoherent. The Tribunal has consistently held that the burden of proving prejudice or other improper motivation rests with the one affirming it. (Cf. Judgements No. 465, Safavi (1989) and No. 336, Maqueda Sanchez (1984).) The Applicant has failed to meet this burden of proof. XI. The Tribunal agrees with the Secretary-General's conclusion that the Applicant's conduct has seriously deviated from the UN standards of conduct and integrity expected of each staff member of the Organization and that this is incompatible with continued service with the Organization. XII. The Tribunal concludes that the Applicant's rights were not violated by his dismissal. The Secretary-General acted within his discretionary power to separate the Applicant from service for misconduct. This was not vitiated by a mistake of fact, by lack of due process or by prejudice or any other extraneous factors. The Applicant was paid the appropriate compensation in lieu of notice, in accordance with staff rule 109.3(b), and an indemnity pursuant to Annex III(c) to the Staff Regulations. XIII. In the light of the above, the Tribunal rejects the application in its entirety. (Signatures) Jerome ACKERMAN Vice-President, presiding Mayer GABAY Member New York, 4 November 1994

Mikuin Leliel BALANDA Member R. Maria VlCIEN-MlLBURN Executive Secretary

330

Administrative Tribunal of the United Nations Judgement No. 675 (Original: English)

Case No. 750: Araim

Against: The Secretary-General of the United Nations

Application of a staff member of the United Nations for a finding that his right to receive full and fair consideration for a D-l vacant post was violated, for an order to give such consideration and for compensation for the prejudice suffered. The Joint Appeals Board found that it had not been provided with the information concerning the Applicant's allegations of discrimination and that it was not in a position to make a recommendation on the case.—Secretary-General's decision that the allegation of discrimination was unsubstantiated. The Tribunal found defects in the procedure which warrant the remand of the case for their correction: the Joint Appeals Board had not been provided with adequate information on the Applicant's consideration for promotion to D-l and had not been provided with the information it requested on the Applicant's allegations of discrimination (report of an ad hoc panel of investigation). In accordance with the Respondent's request the Tribunal decides to remand the case for correction ofprocedure.—No compensation awarded since the procedural delay has not caused the Applicant any harm.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Jerome Ackerman, First Vice-President; Mr. Luis de Posadas Montero, Second Vice-President; Whereas, on 17 August 1993, Amer Araim, a staff member of the United Nations, filed an application requesting the Tribunal, inter alia, to find that: ''

4. The Administration violated the right of the Applicant to receive the full and fair consideration for [a] vacant relocated D-l post... as well as other vacant D-l posts in the Secretariat... And, consequently, 5. ... to give full and fair consideration for the Applicant's candidature for the relocated D-l post of Secretary of the Special Committee against Apartheid as well as other D-l posts in the Secretariat in which he is interested and for which he is qualified. 6. To award the Applicant compensation equal to two years net base salary for the injury sustained by him as a result of the ongoing discrimination against him, including the refusal to consider his

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candidature for [the above] D-l post... as well as other D-l positions in the Secretariat..." Whereas the Respondent filed his answer on 5 October 1993; Whereas the Applicant filed written observations on 12 October 1994; Whereas, on 24 October 1994, the Applicant submitted an additional statement; Whereas the facts in the case are as follows: The Applicant entered the service of the United Nations on 8 August 1978, on secondment from the Government of Iraq, on a three year fixed-term appointment, as a Political Affairs Officer at the P-4 level. On 1 June 1981, he was reassigned to the Committee Services and Research Branch of the Centre Against Apartheid. On 8 August 1981, after the Applicant's resignation from the service of his government, his appointment was extended for three years. On 1 April 1982, he was promoted to the P-5 level, as Senior Political Affairs Officer, and became Secretary of the ad hoc Committee on the Drafting of the International Convention against Apartheid in Sports and Deputy Secretary of the Special Committee against Apartheid. On 1 May 1984, he received a probationary appointment, which was converted to a permanent appointment on 1 January 1985. In a report dated 3 July 1990, the Joint Appeals Board (JAB), having considered an appeal from the Applicant against the Administration's decision to fill, through replacement by an outside candidate, the post of Chief, Committee Services and Research Branch, concluded that this decision was "flawed". It recommended "that the post be filled through vacancy management and that [the Applicant] be considered fully and fairly along with other candidates." Following the Secretary-General's subsequent decision not to accept the JAB recommendation, the Applicant filed a complaint with the Panel on Discrimination and Other Grievances, as well as an application with the Tribunal. On 1 July 1991, the Interim Coordinator of the Panel transmitted the Panel's recommendations to the Administration, including a recommendation that "the Administration should investigate and properly deal with the very subtle form of discrimination which seems to have prevailed in the Department." The Tribunal, in its Judgement No. 533, directed that "the Applicant receive full and fair consideration" for any vacant D-l post for which he might be qualified. In June 1991, when the Secretary of the Special Committee against Apartheid died, the Applicant was appointed Acting Secretary. In a letter dated 14 August 1991 to the Assistant Secretary General, Office of Human Resources Management (OHRM), the Applicant expressed his interest in the post. On 3 September 1991, the Assistant Secretary-General,

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Centre Against Apartheid, announced that the former Permanent Representative of Ethiopia to the United Nations had been appointed temporarily to the post for seven months. The Applicant lodged an appeal against this decision with the JAB and then with the Tribunal. In its Judgement No. 622, the Tribunal held that he was entitled to compensation because of the unjustified failure to advertise the post, which deprived him of an opportunity to be considered for it. (Cf. Judgement No. 622, Araim (1993).) In a letter dated 15 September 1992, the Applicant reminded the Assistant Secretary-General, OHRM, of his letter of 16 June 1992, informing the Applicant that the Secretary-General had decided to constitute a panel to investigate his claims of discrimination. The Applicant noted that three months had elapsed and asked that the panel be set up promptly, and that it "investigate not only my case but also the cases of other Arab staff members in the former Department of Political and Security Council Affairs, as suggested by the Panel on Discrimination and Other Grievances." On 14 October 1992, the Applicant requested the Secretary-General to review the administrative decision to transfer the D-l post from the Centre Against Apartheid to the Department of Political Affairs. On 19 November 1992, the Applicant filed an appeal with the JAB, requesting inter alia a suspension of action on the transfer of this post. On 10 December 1992, the Director of Personnel wrote to the Applicant and informed him that the advertisement for the vacant D-l post had to be withdrawn in the light of the restructuring of the Department of Political Affairs. He assured the Applicant that he would receive full and fair consideration for any D-l vacancy in the Department for which he was qualified. He also informed him that an ad hoc panel had been appointed to investigate his allegations of discrimination. In a letter dated 14 January 1993, the Director of Personnel informed the Applicant that the Secretary-General had requested the JAB to complete consideration of his appeal and submit its report by 21 March 1993. The decision on which suspension of action had been requested would not, in any event, take effect before 21 April 1993. On 18 March 1993, the JAB, noting the Applicant's contention that he had not been considered for the redeployed vacant D-l post, or for three other vacant D-l posts in the Department of Political Affairs, requested from the Secretary-General information on the results of the ad hoc panel which had been appointed to investigate his allegations of discrimination, as well as information on the Applicant's candidature for the vacant D-l posts in the Department. The JAB also requested an extension of the date on which its report was due, to allow more time for the consideration of the appeal.

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On 28 April 1993, the report of the ad hoc panel was finalized. In a letter dated 24 May 1993, the Under Secretary-General for Administration and Management informed the Applicant of its conclusion that "your allegation that your non-selection for the posts in question was due to discrimination was totally unsubstantiated." The letter also stated, "I hereby reject on behalf of the Secretary-General your allegations that you have been and continue to be victim of discrimination in the Organization. No action in this regard will therefore be taken." With the letter, a copy of the ad hoc panel's report was transmitted to the Applicant "on condition of strict confidentiality". The report was not transmitted to the JAB. On 25 May 1993, the JAB adopted its report, noting that it had received "no information on the conclusion of the ad hoc Investigation Panel, which, in its opinion, could have considerable bearing on its findings and conclusion." The report's conclusions and recommendations were: "83. The Panel unanimously: Finds that it was not provided with the information it had requested so as to be able to give the appeal all due consideration; Finds that, without that information, it is unable to examine the validity of the claims of the Appellant and/or the contentions of the Administration; Finds that it is not in a position to make an honest recommendation regarding the present case. 84. The Panel therefore unanimously decided to make no recommendation in connection with the appeal." On 24 June 1993, the Under-Secretary-General for Administration and Management transmitted to the Applicant a copy of the JAB report and informed him, in part, as follows: "The Secretary-General notes the conclusion of the Joint Appeals Board and its inability to make [a] recommendation on the case, for reasons stated. The Panel has alluded,. .., to the fact that you have been considered by the Department's promotion review panel together with other eligible staff members to the various vacant D-l posts in the sector of the Department where you are located. In effect, the Secretary-General believes that you have received full and fair consideration in the promotion process of the Department. On 24 May 1993,1 have already conveyed to you the decision of the Secretary-General which I made on his behalf, that your allegation of discrimination was unsubstantiated. That decision is final." On 17 August 1993, the Applicant filed with the Tribunal the application referred to earlier.

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Whereas the Applicant's principal contentions are: 1. The JAB was prevented from fulfilling its mandate due to the Administration's refusal to provide information requested by it. 2. The Panel on Discrimination and Other Grievances adopted two separate reports on 1 July 1991 and on 1 October 1992, confirming that the Applicant was subjected to discrimination, and that the Administration failed to act. 3. The Applicant has not received full and fair consideration in the promotion process of the Department, contrary to the assertions of the Respondent. Whereas the Respondent's principal contentions are: 1. No staff member may appeal the restructuring of his or her department. The Applicant adduces no credible evidence that prejudice led to his department's reorganization. The onus of proof is upon him to establish improper motivation. 2. A comprehensive investigation of the Applicant's allegations of generalized racial prejudice, directed against him in the Administration's refusal to promote him, was conducted by a panel appointed by the Secretary-General. Its report of 28 April 1993, which did not accept these allegations, was the basis for a decision taken by the Administration on 24 May 1993. If the Applicant is dissatisfied, he should appeal that decision of 24 May 1993. The Tribunal, having deliberated from 20 October to 4 November 1994, now pronounces the following judgement: I. In the course of its deliberations, the Tribunal found defects in procedure which, in accordance with the terms of article 9, paragraph 2 of the Tribunal's Statute and article 18 of the Rules of the Tribunal, warrant the remand of the case for their correction. The defects in procedure are indicated below. (A) In response to its request for information regarding the consideration of the Applicant for promotion to the D-l level, inadequate information was provided to the Joint Appeals Board (JAB) by the Respondent, in the form of a summary memorandum. The Tribunal considers that the JAB should have been provided with underlying and supporting documentation, such as the minutes, notes, or other records of the Appointment and Promotion Board, with appropriate deletion of names (other than the Applicant's) in the interests of confidentiality. (B) In its report, dated 25 May 1993, the JAB found "that it was not provided with the information it had requested so as to be able to give the appeal all due consideration" and that "without that information, it [was] unable to examine the validity of the claims of the Appellant and/or the contentions of the Administration." In spite of the fact that the JAB's

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request for the ad hoc panel's report was not met and notwithstanding the JAB's statement that it was not "in a position to make an honest recommendation regarding the ... case," the Secretary-General took a decision on 24 June 1993, based in part, on the ad hoc panel's report. II. On 20 October 1994, the Executive Secretary of the Tribunal informed the parties, pursuant to article 18 of the Rules of the Tribunal, that it would decide on the substance of the case if, on the expiry of the time limit of two days, no request for a remand had been made by the Secretary-General. III. On 21 October 1994, the Representative of the Secretary-General requested the Tribunal, in accordance with article 18 of the Rules of the Tribunal, prior to the determination of the merits, to remand the case to the JAB for correction of the above-mentioned defects in the procedure. IV. The Tribunal, without pronouncing on the merits of the case, decides (1) that the case be remanded for correction of procedure in accordance with article 9, paragraph 2 of the Statute of the Tribunal; (2) that no harm has been caused to the Applicant by the procedural delay and hence does not award him any compensation. (Signatures) Samar SEN

Jerome ACKERMAN

President

First Vice-President

Luis de POSADAS MONTERO

R. Maria VlCIEN-MlLBURN

Second Vice-President

Executive Secretary

New York, 4 November 1994

Judgement No. 676 (Original: English) Case No. 736: Al-Atraqchi

Against: The Secretary-General of the United Nations

Application of a staff member of the United Nations for a finding that the investigation on his allegations had not been properly carried out, for an order to have the investigation carried out by a joint staff/administrative body and for compensation for the prejudice suffered. The Joint Appeals Board found that the Applicant's main contention was against the composition of the Investigation Panel.—The panel having been created following a deci-

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sion of the Tribunal, it would be for the Tribunal to interpret its own decision.—It recommended that the appeal be rejected. The Tribunal recalls the history of the case, stemming from its Judgement No. 538 in which the Tribunal noted with dismay the absence of any inquiry with regard to allegations by a certain number of staff members concerning the conditions in which a vacant post had been filled and the threats against them.—The Tribunal trusted that, as recommended by the Joint Appeals Board, a full investigation would take place.—After an initial decision that the answers provided by the staff members concerned did not provide any basisfor continuing the investigation, the Respondent decided to set up an investigation panel.—The Applicant contested the composition of the panel which he claimed should have been constituted under administrative instruction ST/AI/3 71 and announced that he would not cooperate with the panel.—The Tribunal rejects the various pleas of the Applicant challenging the decision to set up the investigation panel and the recommendation of the Joint Appeals Board to reject his appeal.—In particular, the Tribunal holds that the staff member making an allegation must participate, without obstructing, in such investigations or be subject to the loss of the right of remedial action.—It also holds that the Administration did not contravene any rule or regulation in establishing the investigation panel and that the steps taken complied with ST/AI/3 71 which does not call for a joint staff/administrative body.—The Tribunal finds that the investigation called for in Judgement No. 538 was duly established and that, in view of the Applicant's refusal to participate, no further action need be taken by the Respondent. Application rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, First Vice-President, presiding; Mr. Luis de Posadas Montero, Second Vice-President; Mr. Mikuin Leliel Balanda; Whereas, on 28 June 1993, Mohammed Ali Al-Atraqchi, a staff member of the United Nations, filed an application requesting the Tribunal, inter alia'. ". . . to 1. Order the Secretary-General to submit to it and to the Applicant the replies on which [the Under-Secretary-General for Administration and Management] based his conclusion that 'the replies received did not provide basis for continuing the investigation and that he decided, accordingly, to close the matter.' 2. Find that these replies do not, as claimed by [the Under-Secretary-General for Administration and Management] provide a basis for discontinuing the first so called 'investigation'. 3. Order the Secretary-General to submit to it and to the Applicant a copy of the . . . report in case this panel carried out the investigation it was instructed to carry out and in case it did not, give the reasons [why] this panel disobeyed [the Under-SecretaryGeneral for Administration and Management]'s instructions.

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4. Find that the JAB [Joint Appeals Board] panel constituted to investigate the present case failed to deal with the issues this appeal raised. 5. Find that the Secretary-General, for reasons of political expediency, never wanted the investigation to take place. 6. Find that the Staff Rules and equity demand that the investigation requested by both the JAB and UNAT be carried out by a joint administrative/staff body to ensure that due process and the staff member's rights be respected. and, consequently, to 1. ... set up a joint staff7administrative body to seriously investigate the contentions made by the Applicant and several other staff members, as stated in Judgement No. 538; 2. ... award the Applicant two years net salary because of the foot-dragging and bad faith displayed by the Administration since August 1990, which already led to the loss of his second appeal before this Tribunal." Whereas the Respondent filed his answer on 8 July 1994; Whereas the facts in the case are as follows: The Applicant entered the service of the United Nations on 7 October 1967, on a probationary appointment at the P-2 level, as an Associate Statistician with the Statistical Office of the Department of Economic and Social Affairs. On 1 October 1969, his appointment was converted to a permanent one. On 1 June 1970, he was promoted to the P-3 level as a Statistician. On 1 September 1973, the Applicant was transferred to the Council and Committee Services Section, Security Council and Political Committees Division, Department of Political and Security Council Affairs (PSCA), as an Economic Affairs Officer. On 1 April 1974, he was promoted to the P-4 level and, on 1 July 1979, to the P-5 level as a Senior Political Affairs Officer. In 1988, the Applicant applied, under the Vacancy Management System then in force, for the D-l post of Chief, International Security and Regional Affairs Section, PSCA. He was short-listed together with five other candidates. Their names were transmitted by the Appointment and Promotion Board to the Department for final selection. On 3 April 1989, the Applicant was notified that he had not been selected for the post. On 20 April 1989, the Applicant requested the Secretary-General to review the administrative decision not to select him for the post. On 27 February 1990, he lodged an appeal with the Joint Appeals Board (JAB). He claimed that the Vacancy Management System conflicted with the Staff Regulations and Rules and that the D-1 post for which he had applied had been earmarked for the successful candidate before the recruit-

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ment process had begun. In support of this contention, the Applicant submitted an affidavit, dated 23 August 1990, signed by nine staff members stating that the successful candidate for the post had been pre-selected. In its report, adopted on 24 August 1990, the JAB recommended, inter alia, that an investigation be undertaken of the Applicant's claim that the post had been earmarked in advance for a particular candidate. In transmitting the JAB report to the Applicant, on 6 September 1990, the Under-Secretary-General for Administration and Management informed the Applicant of the Secretary-General's decision to take no further action on his appeal. The Applicant filed an application with the Tribunal on 18 October 1990. The Tribunal rendered its Judgement No. 538, on 1 November 1991, upholding the Vacancy Management System but concurring with the JAB's concern regarding the claim set forth in the affidavit, dated 23 August 1990; the Tribunal also referred to the assertion that signatories thereto had subsequently been threatened. The Tribunal noted the absence of any inquiry by the Administration, endorsed the JAB's recommendation and expressed its trust that the Administration would "conduct a full investigation with respect to this matter, including the alleged threat of retaliatory action." (Cf. Judgement No. 538, paragraph VI.) In a letter dated 14 November 1991, the Applicant drew the Secretary-General's attention to this part of the Tribunal's judgement and asked that the investigation referred to be conducted as soon as possible. In a letter dated 12 December 1991, to the Applicant and to the signatories of the affidavit of 23 August 1990, the Director, Office of the Under-Secretary-General for Administration and Management, asked what was the basis for the statement made in the affidavit that the post had been earmarked for a particular staff member. He inquired whether any retaliatory threats had been made in relation to the signing of the affidavit. In a letter to the Director, Office of the Under-Secretary-General for Administration and Management, dated 1 January 1992, the Applicant challenged the approach of the Administration to the investigation, because the JAB, in its report, had called for a "special investigating body" to be established. The Applicant suggested that such a body should have staff participation. In his reply, dated 4 February 1992, the Director, Office of the Under-Secretary-General for Administration and Management, stated that "the conduct and modalities of an administrative investigation" were "within the discretion of the Secretary-General." In a letter dated 19 February 1992, to the Director, Office of the Under-Secretary-General for Administration and Management, the Applicant accused the Administration of delaying the investigation to allow time for the Under-Secretary-General for Political and Security Council Affairs to leave the Organization and avoid being questioned on the mat-

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ten The Applicant urged that an appropriate investigative body be set up as soon as possible. On 28 February 1992, the Director, Office of the Under-Secretary-General for Administration and Management, informed the Applicant that the replies he had received to the letter of inquiry he sent to the signatories of the affidavit "do not provide a basis for continuing the investigation." He had decided, therefore, "to close the matter." On 25 March 1992, the Applicant requested the Secretary-General to review the decision not to carry out the investigation requested by the JAB and the Tribunal. On 25 May 1992, having received no reply, the Applicant lodged an appeal with the JAB. In an undated letter, received by the Applicant in November 1992, the Principal Officer, Office of the Under-Secretary-General for Administration and Management, confirmed that the Secretary-General had decided, in the context of the pending JAB appeal, to "re-open the investigation into certain allegations made in a document dated 23 August 1990." She noted that a panel composed of two staff members had been appointed in June 1992 and that their investigation had been delayed due to their absences from the office, but said that they would "resume their work shortly." In his letter dated 9 November 1992, to the Under-Secretary-General for Administration and Management, the Applicant expressed his objection to the composition of the panel and to the way it was conducting its investigation. He added that he would therefore "refuse to cooperate with this two person panel" and would "not accept its conclusions." In a letter dated 23 November 1992, the Under-Secretary-General for Administration and Management stated that the Secretary-General "has full discretion as to the manner in which investigations are conducted on his behalf," and urged the Applicant "to reconsider [his] decision not to cooperate with the panel which has been appointed." He noted that he was in any event "instructing the panel to proceed with its investigation forthwith." On 2 March 1993, the JAB adopted its report. Its considerations and recommendations read, in part, as follows: "22. The Panel noted that the Appellant's main objection was to the composition of the Investigation Panel,... 23. The Panel felt that since the Secretary-General had carried out an investigation as expected by the Tribunal, the issue in question was the interpretation of the Tribunal's concept, if any, of how the investigatory body should be composed. As the judgement was silent on that point, the Panel decided that no one could interpret the Tribunal's decision but the Tribunal itself.

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24. The Panel regretted that such a long time had elapsed before the Secretary-General had appointed an investigation panel and that he had done so only after the Appellant had requested an administrative review of his failure to do so. 25. The Panel recommends that the appeal be rejected." On 5 April 1993, the Under-Secretary-General for Administration and Management transmitted the JAB report to the Applicant and informed him, inter alia, as follows: "The Secretary-General has re-examined your appeal in the light of the Board's report and he accepted the Board's recommendation. No further action will be taken on your appeal. With regard to the observations in paragraph 24 of the Board's report, the Secretary-General wishes to recall that circumstances beyond the control of the panel members delayed the investigation. Progress in the investigation was further hampered because of your unwillingness to cooperate with the Panel." On 28 June 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The JAB did not carry out its task, and instead of dealing with the issues raised by the case, referred them to the Tribunal. 2. The Administration did not want a full and fair investigation to take place. 3. The Staff Rules and Regulations and equity demand that the investigation be carried out by a joint body including staff representation. Whereas the Respondent's principal contention is: The Secretary-General may investigate allegations of improper conduct without submission of such matters to joint bodies. The Applicant must cooperate with such investigation and bears the risk of his non-cooperation. The Tribunal, having deliberated from 20 October to 4 November 1994, now pronounces the following judgement: I. The Joint Appeals Board (JAB) considered the Applicant's appeal against the decision not to promote him to the D-l post of Chief, International Security and Regional Affairs. After the JAB had completed its consideration of the case, the Applicant submitted an affidavit dated 23 August 1990, signed by a number of staff members, who asserted that the contested post had been earmarked "a priori" for a particular candidate. The JAB took note of the affidavit and "in view of the seriousness of the charge and the fact that it [was] not competent to conduct inquiries which might involve disciplinary sanctions" transmitted the affidavit to

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the Secretary-General "with the recommendation that he establishes a special investigating body". II. At the time, the Secretary-General did not follow this recommendation. As a consequence, the Applicant appealed to the Tribunal. In its Judgement No. 538, the Tribunal included a paragraph in which it noted "with dismay the apparent absence, on the part of the Administration, of any inquiry of the staff members involved with respect to either the perception or the alleged threat described by them to determine and evaluate their basis,.. .". In addition, the Tribunal trusted that "the Respondent [would] (a) act on the recommendation made by the Joint Appeals Board..., (b) conduct a full investigation with respect to this matter" and finally concluded that "the inadequate action with respect to the concerns expressed by the Joint Appeals Board regarding the document dated 23 August 1990, in itself, constituted unfair treatment of the Applicant" and called for compensation. III. Pursuant to Judgement No. 538, the Director of the Office of the Under-Secretary-General for Administration and Management, on 12 December 1991, sent letters to the staff members whose signatures appeared in the affidavit, inquiring as to "(a) the basis on which you made the statement contained in the above-mentioned affidavit; and, (b) whether you received any threat in relation to the signing of the affidavit; if so, when, by whom, and in what terms." This was the only step taken to comply with the JAB's recommendation and the Tribunal's request. The Acting Under-Secretary-General for Administration and Management informed the Applicant on 28 February 1992, that "the replies received to the letter sent to the signatories of the affidavit dated 23 August 1990 do not provide a basis for continuing the investigation and [that he had] decided, ..., to close the matter." IV. The Applicant challenged this decision, alleging that no serious investigation in the sense requested by the JAB and the Tribunal had taken place. While the JAB was considering the case, the Respondent, on 5 August 1992, informed the JAB that the "new Under-Secretary-General for Administration and Management had decided that a full-fledged investigation of the allegations made by [the Applicant] would be conducted ..." He added that "an investigation panel has been appointed." In view of these circumstances, the Respondent argued that "the appeal involved in [the Applicant's] case ... is now without any object." This letter, which was treated as the Respondent's reply to the Applicant's statement of appeal, was transmitted to the Applicant on 2 October 1992. He made no comments on the Respondent's submission that the case was moot. The JAB was equally silent on this issue. The Tribunal, in this respect, shares the Respondent's view and considers that the proceedings should have ended at this stage.

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V. Nevertheless, this did not occur. As set forth below, the following new developments ensued having the same effect as a new recourse procedure. The Applicant, upon being informed that the Administration had set up a new investigation panel, challenged this decision on 9 November 1992, on the ground that he should have been notified in time of the appointment of the new panel and consulted about its composition. He also claimed that the panel should have been constituted pursuant to administrative instruction ST/AI/371. He objected to the secretive way in which the panel conducted its work. The Applicant also informed the Administration that he would not cooperate with the new panel. In his reply dated 23 November 1992, the Under-Secretary-General for Administration and Management stated that "the Secretary-General has full discretion as to the manner in which investigations are conducted on his behalf. He may appoint anyone he deems to be qualified to conduct the investigation provided that, as is the case here, the appointed officials have been selected with a view to ensuring fairness and impartiality. It is the Secretary-General's responsibility to ensure that facts are properly ascertained, and in discharging that responsibility, there is no need to consult any individual staff member or the staff representative bodies." The JAB took note of the Applicant's objections and was of the view that "the issue in question was the interpretation of the Tribunal's concept, if any, of how the investigating body should be composed" and, that, therefore "no one could interpret the Tribunal's decision but the Tribunal itself." The JAB recommended that the appeal be rejected. The Tribunal considers that the JAB's recommendation refers both to the appeal lodged by the Applicant against the decision to close the original investigation and to the appeal against the establishment of the new investigation panel. The Secretary-General accepted the JAB's recommendation and the Applicant appealed before the Tribunal. VI. The Tribunal, having examined the different pleas submitted by the Applicant, finds: (a) With respect to the pleas in which the Applicant challenges the decision taken by the Administration to close the first investigation, the Tribunal is of the view that, inasmuch as a new investigation was ordered, the challenged decision is irrelevant and the issue is to be considered moot. (b) In connection with the plea that the Applicant should be provided with a copy of the report produced by the second investigation panel, the Tribunal trusts that the Applicant would have been provided with a copy of the report once the investigation had been completed. Nevertheless, in view of the Applicant's decision not to cooperate, the Tribunal recalls its Judgement No. 560, Claxton (1993), paragraph VIII in

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which it held that "the staff member making the allegations must, of course, participate, without obstructing, in such investigations or possibly be subject to loss of the right to remedial action." Cf. also Judgement No. 659, Al-Atraqchi (1994), paragraph V. (c) As regards the plea asserting that the JAB "failed to deal with the issues this appeal raised", the Tribunal is unable to share the Applicant's views. As shown in its report, the JAB duly considered the different points raised by the Applicant and concluded that the appeal should be rejected on the ground that it was exclusively up to the Tribunal to decide whether the investigation panel set up by the Administration complied with the request in Judgement No. 538. The JAB's report shows that, when it reached its conclusions, it was fully cognizant of the objections raised by the Applicant to the decision to establish the new investigation panel. The Tribunal therefore finds no merit in the Applicant's plea in this respect. (d) As to the assertion that the "Secretary-General, for reasons of political expediency, never wanted the investigation to take place", the Tribunal holds that the fact that a second investigation was decided upon after the first one was closed is sufficient to show that there were efforts on the part of the Administration to act on the Applicant's recourse. Had the Applicant cooperated and permitted the investigation to be completed, he could have appealed against any administrative decision based on it. (e) In his last plea, the Applicant requests the Tribunal to find that "the Staff Rules and equity demand that the investigation requested by both the JAB and UNAT be carried out by a joint administrative/staff body." The Tribunal holds that the Administration has not contravened any existing rule or regulation in establishing the investigation panel which is being challenged. VII. The Applicant claims that the procedure to be followed should be the one set forth in administrative instruction ST/AI/371. The Tribunal observes that there has been no departure from such a procedure and that the steps taken in connection with the Applicant's recourse complied with the provisions of Chapter II of administrative instruction ST/AI/371. Those provisions do not contemplate, in the preliminary phase of fact finding, the setting up of a joint staff/administrative body, as requested by the Applicant. Furthermore, the Administration, in its letter dated 23 November 1992, clearly stated that it intended to adhere to ST/AI/371. VIII. The Tribunal therefore finds that the investigation called for in Judgement No. 538 was duly established by the Administration, and

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that, in view of the Applicant's refusal to participate, no further action with respect to the matter need be taken by the Respondent. For the foregoing reasons, the application is rejected. (Signatures) Jerome ACKERMAN First Vice-President, presiding

Luis de POSADAS MONTERO Second Vice-President

Mikuin Leliel BALANDA Member

R. Maria VlCIEN-MlLBURN Executive Secretary

New York, 4 November 1994

Judgement No. 677 (Original: English) Case No. 744: Daure

Against:

The Secretary-General of the United Nations

Application of a staff member of the United Nations for a finding that he had not been given fullest regard infilling a D-l vacancy, for rescission of decision to fill the post in question through a lateral move and for compensation. The Joint Appeals Board found that the decision to fill the post through a lateral move was within the Administration's authority and did not violate the Applicant's terms of employment. The Tribunal holds, as it did in the past, that under the Vacancy Management System which was in effect at that time the Respondent was entitled to fill the vacancy through a lateral transfer.—Thus, the Applicant who was seeking promotion and was not eligible for lateral transfer lacks standing to challenge that transfer.—The Tribunal notes nevertheless some shortcomings in the procedure followed by the Appointment and Promotion Board (APB): the Applicant was not afforded the opportunity to comment on the documentation provided to the Board and was not informed of his non-inclusion in the short list.—In addition, APB should ensure that its recommendations are based on its own independent evaluation rather than on the wishes of a department, as may have been the case here.—The Tribunal notes the lack of recent report on the Applicant's performance and reiterates that it is the responsibility of the Administration to prepare a performance evaluation report on a timely basis.—If itfails to do so, the staff member should request promptly corrective action.—The circumstances of this case rendered any procedural irregularities academic. Application rejected.

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THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, First Vice-President, presiding; Mr. Luis de Posadas Montero, Second Vice-President; Mr. Mikuin Leliel Balanda; Whereas, on 23 July 1993, Bernard Daure, a staff member of the United Nations, filed an application requesting the Tribunal, inter alia: "(a) To hold that 'the fullest regard' was not given by the Respondent to the Applicant's qualifications in filling a D-l vacancy at the Information Products Division announced as 90-1-DPI-069-NY (29 April 1991); (b) To determine that the contractual rights of the Applicant under Article 101, paragraph 3 of the United Nations Charter, article IV of the Staff Regulations, in particular regulations 4.2 and 4.4 and staff rules 104.14(a)(ii) and 112.6 have been violated; and (c) To order the Respondent to rescind his decision to fill the post in question through a lateral move,. . ., to fix the appropriate amount of compensation payable to the Applicant for the injury sustained by him should the Secretary-General decide in the interest of the United Nations that the Applicant be compensated without further action being taken in his case." Whereas the Respondent filed his answer on 11 May 1994; Whereas the Applicant filed written observations on 8 June 1994; Whereas the Applicant submitted further written observations on 29 September 1994; Whereas the Tribunal put questions to the Respondent on 19 October 1994, to which he replied on 26 October 1994; Whereas further documentation was submitted to the Tribunal, directly by the Office of Human Resources Management, on 28 October 1994; Whereas the Applicant submitted further observations on 31 October 1994; Whereas the facts in the case are as follows: The Applicant entered the service of the United Nations on 19 November 1967, as a Translator in the French Section, Translation Service, Office of Conference Services, at the P-3 level. His probationary appointment was converted to a permanent one on 1 November 1969. With effect from 16 February 1971, the Applicant was assigned, as an Editor, to the Editorial and Official Records Service, Official Records Editing Section. On 1 May 1974, he was transferred to the Department of Economic and Social Affairs, Office of Technical Cooperation, Support Services Branch, Reports Section. His title was changed to Technical Editor, with effect from 1 May 1975. He was promoted to the P-4 level, with effect

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from 1 September 1977, and on 1 April 1978, he was transferred to the Department of Technical Cooperation for Development. His functional title was changed to Chief, Reports Unit, Programme Support Division, with effect from 1 July 1983. On 1 April 1986, he was promoted to the P-5 level. On 26 April 1991, in response to a Vacancy Announcement, the Applicant applied for the D-l level post of Chief of Publications Service, Information Products Division, Department of Public Information (DPI). In a letter dated 8 May 1991, the Senior Recruitment and Placement Officer acknowledged receipt of the Applicant's application for the vacancy. According to the record, 13 internal and 22 external candidates applied for the post. The Secretary-General approved the recruitment of an external candidate who, however, declined the appointment. Shortly thereafter, on 6 February 1992, the Secretary-General announced the suspension of all external recruitment for posts in the Professional category. In a memorandum dated 2 March 1992, to all Directors and Chiefs of Service in DPI, the Under-Secretary-General for Public Information announced the implementation of several staff changes within DPI, including the lateral transfer of the Deputy Director, Dissemination Division, to the post of Chief, Publications Service, Information Products Division. In a memorandum dated 8 May 1992, the Applicant requested from the Senior Recruitment and Placement Officer "to be told in writing what happened to my application." In a reply dated 13 May 1992, the Senior Recruitment and Placement Officer informed the Applicant that the post for which he had applied had been filled through a lateral transfer. In a letter dated 21 May 1992, the Applicant requested the Secretary-General to review the administrative decision not to select him for the post for which he had applied. Not having received a substantive reply, the Applicant, on 30 July 1992, lodged an appeal with the Joint Appeals Board (JAB). He claimed that "the qualifications of the staff member who was selected are less appropriate to the post than mine" and suggested that "extraneous considerations" influenced the selection of a candidate. On 22 September 1992, the Applicant filed a supplementary statement of appeal. The JAB adopted its report on 23 April 1993. Its considerations, conclusions and recommendations read, in part, as follows: ''

29. The Panel also noted that para. 6 of administrative instruction ST/AI/373 on placement and promotion, dated 23 December 1991, states that 'Heads of Departments and Offices may reassign staff within their Departments or offices to vacant posts at the same level.' Accordingly, the Panel found that in assigning a staff member at the D-l level to fill the

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post in question, the Administration had acted within its authority, that such assignment did not require approval by the Appointment and Promotion Board, nor was there any need for the Administration to take other staff members' candidatures into consideration. "Conclusions and recommendations 30. The Panel concluded that the decision not to select the Appellant for the post in question Was not improperly taken and, therefore, found no violation of the terms of his appointment. 31. The Panel took note, however, of the Appellant's uncontroverted contention that his performance had not been evaluated since 31 December 1984—in violation of ST/AI/240/Rev.2. The Panel considers this situation unacceptable and recommends that the Appellant's performance be evaluated without further delay. 32. Accordingly, the Panel makes no further recommendation in support of this appeal." On 27 April 1993, the Under-Secretary-General for Administration and Management transmitted the JAB report to the Applicant and informed him, inter alia, as follows: "The Secretary-General has re-examined your case in the light of the Board's report and agreed with its conclusion that the decision not to select you for the post in question did not violate the terms of your appointment. No action on your appeal will, therefore, be taken. The Secretary-General noted the Board's concern in regard to irregularities in the evaluation of your performance and directed that it should be carried out immediately." On 23 July 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Applicant was not given full and fair consideration when he applied for the post at issue because there had been no performance evaluation report since December 1984. 2. The burden of proof is on the Respondent to show that the Applicant was duly considered for the post. The Respondent has not provided this proof. 3. The Secretary-General's discretionary decision not to promote the Applicant was tainted by lack of due process. Whereas the Respondent's principal contention is: The Applicant has no right to promotion but only to consideration for promotion. The Applicant was properly considered for promotion,

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and his rights were not violated by his non-selection for the post in question. The Tribunal, having deliberated from 19 October to 9 November 1994, now pronounces the following judgement: I. The Applicant claims that he was not duly considered for the D-l post of Chief of Publications Service, Information Products Division, DPI, for which he had applied, in accordance with the Vacancy Management System (VMS) then in force. As a result of the selection process, an external candidate was selected but declined the appointment. Because of the recruitment freeze in force at the time, the post was then filled through the lateral transfer of another staff member. The Applicant also claims that he was not informed of the negative outcome of his application for the post until he inquired about it and that this reply came when the decision to fill the post through a lateral transfer had already been taken. II. The Applicant claims that, as a consequence of flaws in the original selection process, the decision to fill the post through a lateral transfer should be rescinded and compensation granted to him. The Applicant considers it "irrelevant" that the post was eventually filled through the lateral transfer of another staff member. In his written observations, he clearly states that "the fact that the external candidate declined the offer and that an internal candidate was later assigned to the post does not absolve the Respondent from having violated due process and the Applicant's contractual rights in the first instance when the post was considered by the APB [Appointment and Promotion Board]." III. The Tribunal is unable to agree with the Applicant's contention. As the Tribunal has previously held, under the VMS (which is no longer in effect) the Respondent was entitled to fill a vacancy through a lateral transfer rather than promotion. See also administrative instruction ST/AI/273, paragraph 6. A staff member who is seeking promotion and hence was not eligible to be considered for a lateral transfer, as was the case of the Applicant here, lacks standing to challenge a lateral transfer. (Cf. Judgements No. 661, Al Atraqchi (1994) and No. 657, Araim (1994).) The Tribunal therefore need not consider the issues raised by the Applicant concerning the outcome of the original selection process. IV. The Tribunal nevertheless requested the Respondent to provide "... minutes, correspondence, notes or other records of the APB establishing that the Applicant was considered [for promotion]". In response, the Respondent submitted the Office of Human Resources Management's evaluation of the candidates and that of the APB. Although the documentation provided shows that the Applicant was considered, it also shows that he was not afforded the opportunity to comment, as required by administrative instruction ST/AI/338/Add.5, and that he

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was not informed of his non-inclusion in the short list that should have been established by the APB. Moreover the Applicant was not informed of the outcome of the selection process until after the candidate selected had declined the appointment and the recruitment freeze had led to the decision to fill the post by a lateral transfer. These are procedural shortcomings that should have been avoided. In addition, the APB, in carrying out its advisory functions, should ensure that its recommendations are based on its own independent evaluation rather than on mere acquiescence in the wishes of a department, as may have been the case here. Finally, the Tribunal notes the points raised by the Applicant concerning the lack of a recent report on his performance. While this appears to have had no adverse effect in the circumstances of this case, it is, of course, the responsibility of the Administration, in the first instance, to prepare a performance evaluation report on a timely basis. If it fails to do so, a staff member, instead of remaining silent for a lengthy period, may make the delinquency known promptly and request corrective action. V. The circumstances set forth above rendered any procedural shortcomings in the selection process academic. Consequently, the application fails. VI. For the foregoing reasons, the application is rejected. (Signatures) Jerome ACKERMAN

Luis de POSADAS MONTERO

First Vice-President, presiding Mikuin Leliel BALANDA

Second Vice-President R. Maria VlCIEN-MlLBURN

Member

Executive Secretary

New York, 9 November 1994

Judgement No. 678 {Original: English) Case No. 715: Lukas

Against: The Secretary-General of the United Nations

Application of a former staff member of the United Nations for implementation of Judgement No. 544, for a finding that the Secretary-General failed to respect his own decision and the Tribunal judgement and for compensation for the hardship suffered. The Joint Appeals Board recommended suspension of administrative action to fill the post for which the Applicant had expressed her interest.—On the merits the Board found

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that what the Administration had done so far has been solely in order to comply pro forma with its obligations and recommended stronger efforts to identify an appropriate P-4 post for the Applicant.—Opinion and recommendation rejected. The Tribunal recalls the circumstances leading to its Judgement No. 544 in which it called for new efforts to fulfil the Secretary-General's commitment to promote the Applicant.—Circumstances in which the Applicant reacted negatively to proposed assignments to a P-4 post and requested to be placed in a particular post.—The Tribunal holds that the Applicant's attitude was not in conformity with Judgement No. 544 in which it stated that the Applicant was not entitled to choose the post to be assigned to her.—The Applicant's qualifications were apprised freely by the Administration in accordance with the relevant rules and regulations.—The Tribunal decides that the Secretary-General has not acted contrary to his commitments in refusing the Applicant's transfer to the post selected by her and that the Administration has made reasonable efforts to honour the Secretary-General's commitment.—The Tribunal declines to order apologies for statements contained in a letter, as the Applicant cannot assert a claim of defamation on account of an internal letter.—Applicant's claim for an earlier implementation date of her promotion cannot be entertained since it was not submitted to the Joint Appeals Board. Application rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, First Vice-President, presiding; Mr. Luis de Posadas Montero; Second Vice-President; Mr. Mikuin Leliel Balanda; Whereas, on 1 March 1993, Ellen Lukas, a former staff member of the United Nations, filed an application requesting the Tribunal, inter alia, to: ". . . implement Administrative Tribunal Judgement No. 544 (Lukas) of 8 November 1991 ..." and "... [find that] the Secretary-General has failed to exercise ... his authority as the Chief Administrative Officer of the Organization (Charter, Article 97) and... to use all means available to him..., in order to secure due respect for his decision of 13 March 1990 (...) and for Administrative Tribunal Judgement No. 544 (Lukas); and

". . . to order that the Secretary-General pay the Applicant an amount equivalent to two (2) years of her current salary as compensation for the serious professional and personal injury and hardship suffered by the Applicant... ... to order the Secretary-General to secure apologies from the authors of the memorandum of 23 September 1992 (...) for their in-

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jurious and false statements concerning the Applicant's professional qualifications and experience. ... to order that the implementation of the Applicant's promotion to P-4 be backdated to the time of the Secretary-General's decision, ..." Whereas the Respondent filed his answer on 1 June 1994; Whereas on 13 July 1994, the Applicant submitted written observations; Whereas, on 19 October 1994, the Tribunal put questions to the Respondent, to which he provided answers on 1 November 1994; Whereas, on 24 October 1994, the Applicant submitted further written observations; Whereas, on 4 November 1994, the Applicant submitted additional observations; Whereas the facts in the case are as follows: The Applicant served the United Nations from 1969 to 1972, as an Information Officer and again from 15 November 1976, under a fixed-term appointment at the P-3 level which was extended from time to time and converted to a probationary appointment on 15 April 1979. On 1 February 1980, she was granted a permanent appointment in the Department of Public Information (DPI). As a result of the restructuring of DPI in 1987 and 1988, a number of organizational units were to be replaced by new ones and their posts and resources allocated accordingly. On 8 April 1988, the Applicant was advised that, under the new staffing table, she would be placed immediately as Information Officer in the Communications Services Section of the Communications and Project Management Service. However, she could apply for other posts to be advertised. The Applicant applied for a P-4 post in the Human Rights and Development Programmes Section of the Communications and Project Management Service. She was short-listed for the post by the ad hoc Departmental Selection Committee, along with two other candidates. None of them was selected. On 5 May 1989, the post was advertised, the section to which the post belonged having been renamed "Economic and Social Development and Human Rights Programmes Section". The Applicant again applied for the post but was not selected. On 2 May 1989, the Applicant requested the Secretary-General to review the administrative decision to re-advertise the post for which she had been short-listed, as the decision not only violated the rules agreed on between the Department and the staff, but would have a direct negative impact on her terms of employment within the United Nations. In a reply

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Administrative Tribunal of the United Nations

dated 19 May 1989, the Assistant Secretary-General for Human Resources Management (OHRM) informed the Applicant that the Secretary- General had decided to maintain the decision to re-advertise the post in order to seek additional candidates with experience in developing countries. On 23 May 1989, the Applicant lodged an appeal with the Joint Appeals Board (JAB) against the decision not to select her for promotion to a P-4 position of Human Rights Information Officer in DPI. The JAB adopted its report on 28 February 1990. It concluded and recommended as follows: "55. The Panel concludes that although the selection process had certain shortcomings and reflected poor judgement on the part of management, the appellant has failed to sustain the burden of proving that the contested decision was motivated by extraneous factors, e.g., discrimination against the appellant because of her nationality, or personal prejudice. 56. The Panel concludes also that the contested decision did not, per se, constitute a violation of the Staff Rules, nor did it substantively violate the internal selection procedures of DPI. 57. The Panel recommends, in view of the unfortunate manner in which the selection process was handled and the unfairness resulting to the appellant therefrom, and in view also of the appellant's competence and experience, that DPI make substantial efforts, promptly, to locate a suitable P-4 post for the appellant." On 13 March 1990, the Officer-in-Charge of the Department of Administration and Management transmitted a copy of the JAB report to the Applicant and informed her, in part, as follows: "The Secretary-General has . . . decided to maintain the contested decision. The Secretary-General has further decided, to give full and fair consideration to you on a priority basis for any vacant and suitable P-4 post for which you are qualified and interested, taking into account the entire circumstances of your case, and to take no further action on the matter." On 11 June 1990, the Applicant filed an application with the Tribunal contending, inter alia, that the Under-Secretary-General for DPI had consistently denied her fair consideration for all vacancies for which she had applied despite the recommendation of the JAB and the Secretary-General's decision of 13 March 1990. On 8 November 1991, the Administrative Tribunal rendered its Judgement No. 544, Lukas, in which it said, inter alia: "VI. It is therefore the Tribunal's opinion that new efforts should be made in good faith to fulfil the Secretary-General's commitment and that, while the Applicant is not entitled to single out or

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to choose the post to be assigned to her, nevertheless the renewed efforts should take into consideration all the conditions mentioned by the Secretary-General when ordering that efforts should be made to have the Applicant placed in a 'suitable P-4 post for which you are qualified and interested'. It appears from information received from the Respondent by the Tribunal that promotion of the Applicant to the P-4 level has taken place. However, this should not affect the renewed efforts referred to in this paragraph. IX. For the injury suffered by the Applicant as a consequence of her unfair treatment in connection with the Secretary-General's decision conveyed to her on 13 March 1990, the Tribunal orders the Respondent to pay to the Applicant one year of net base salary at level P-4, step VIII." On 30 October 1991, the Tribunal was advised that, with effect from 26 August 1991, the Applicant had been promoted to the P-4 level, but the Applicant did not formally accept the post to which she had been assigned concomitant therewith. In a memorandum dated 23 December 1991, she agreed to fulfil its duties of Chief Editor, only on a temporary basis, "until a P-4 which fulfils the Secretary-General's commitment to me of 13 March 1990 is available". She added, inter alia, that: "[T]his does not change my legal position that this post does not fulfil the requirements of the Secretary-General's decision and the Tribunal Judgement No. 544, and I will continue actively to seek full implementation of the Secretary-General's commitment and the Tribunal Judgement." On 10 January 1992, the Assistant Secretary-General, OHRM, advised the Applicant, inter alia, as follows: "In view of the fact that the Department of Public Information (DPI) did not find that you were qualified for the vacant P-4 posts for which you subsequently applied, it was decided to promote you to the P-4 level outside the normal procedures of Vacancy Management, and to assign you some of the functions discharged by [another staff member] at the time. The decision you are now challenging simply implements the administrative and budgetary aspects of your promotion. The Administration is fully aware of the terms of Judgement No. 544, and sees the decision communicated to you on 3 December 1991 as a partial fulfilment of the commitment given to you on 13 March 1990. It is my understanding that, upon the departure of [another staff member] on 31 December 1991, you were assigned the full functions of his P-4 post, pending the occurrence of a vacant P-4 post for which you would be qualified, and in which you would be inter-

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ested. The fact that you have been promoted to the P-4 level will greatly facilitate any change in attribution of functions since a lateral transfer is all that will be required for that purpose. Let me assure you that the complete resolution of your case is a high priority for all concerned...." In a reply dated 6 February 1992, the Applicant contested the statement that she was not qualified for the posts for which she had applied. On 20 May 1992, the Applicant applied for the P-4 level post of Human Rights Information Officer, DPI (Post No. UNA-27773-E-P4-002) (DPI/ESDHR/Human Rights Officer) that was soon to become vacant. In a letter addressed to the Under-Secretary-General for Public Information, the Applicant enclosed her resume and briefly stated the reasons she considered herself qualified for the position. On 2 July 1992, the Assistant Secretary-General, OHRM, wrote to the Under-Secretary-General, DPI, with respect to the 1992 Promotion Review. He noted that the Applicant was among those staff members entitled to special consideration. He referred to the letter of the Secretary-General to Applicant, dated 13 March 1990, and Judgement No. 544, Lukas, dated 8 November 1991. He concluded by stating that a "full discharge of the commitment given by the Secretary-General to [the Applicant] requires that she be assigned to a post for which she is qualified and interested". He further stated that the Applicant should receive "priority consideration for any vacant P-4 posts in which she has expressed an interest, before such posts can be used for promoting other staff members." According to the record, the Applicant was offered a number of posts, including: Project Manager for Social Development Information; Project Manager for the 1993 International Year for Indigenous People and for the 1994 International Year of the Family. On 28 August 1992, the Applicant reiterated her application for the post of Human Rights Information Officer and declined the offer for the post of Project Manager for Social Development Information. On 23 September 1992, the Director of the Communications and Project Management Division advised the Applicant, in a detailed communication, that in the Department's view, she was not qualified for the post of Project Manager for Human Rights in which she had expressed an interest in May 1992 and which had become vacant on 14 September 1992. On 28 September 1992, the Applicant requested a review of this decision and also asked for the Secretary-General's agreement to the direct submission of her appeal to the Administrative Tribunal. Not having received a substantive reply to her request, on 18 November 1992, the Applicant lodged an appeal with the JAB, in which she

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also requested, under staff rule 111 .2(f), a suspension of action to be taken to fill the Human Rights Information Officer post until her appeal on the merits had been considered by the JAB. On 25 November 1992, the JAB adopted its report on the request for a suspension of action, and recommended as follows: "18. The Panel, having carefully examined the documents pertaining to the appeal and taking into consideration the statements made by both parties at the hearing, accepted the Appellant's request for suspension of action under staff rule 111 .2(f). 20. The Panel noted that, in her appeal, the Appellant had made apritnafacie case which merited full consideration. 21. The Panel further observed that, if the request for suspension of action on the contested decision were denied, the Appellant would be left without an effective remedy, should her appeal result in a recommendation in her favour. 22. Accordingly, the Panel unanimously recommends that all action to fill the post in question, or any personnel action with respect to any recommendation to confirm the assignment of any staff member to that post or to assign its functions to anyone, be suspended, pending the completion of the appeal." On 9 December 1992, the Director of Personnel transmitted to the Applicant a copy of the JAB report and informed her as follows: "The Secretary-General. . . has noted that the post to which you wish to be appointed is among those which cannot be filled until a decision is made as to whether it is decided either to keep the post where it was budgeted, or to redeploy it temporarily to another programme, or to freeze it for future use in a priority area. Therefore, no action can be taken at the moment in regard to the post. Under these circumstances, the Board's recommendation for suspension of action is not relevant at this stage. However, to accommodate the concerns of the Board, the Secretary-General decided that, should the decision be taken to keep the post in the Department, it would be filled on only an interim basis until the final decision of the Secretary-General on the substance of your appeal." On 15 January 1993, the JAB adopted its report on the merits of the case and recommended as follows: "30. The Panel considered that what the Administration has done so far in this case has been done solely in order to comply pro forma with what it was obliged to do and even this was not done in an appropriate manner. Furthermore, if the Administration had acted appropriately, this appeal would not have had to be submitted. In

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light of the above, the Panel recommends that the Administration make stronger efforts to identify a post of [sic] which the Appellant is suitable and in which she is interested. 31. At the same time the Panel unanimously recommends that, pending the placement of the Appellant in such a post, the P-4 post of Human Rights Information Officer, DPI, should not be filled by another candidate—neither through lateral transfer nor otherwise. 32. Bearing in mind that the Appellant is due to retire in September 1993, the Panel unanimously urges the Secretary-General to take the recommended action without further delay." On 21 January 1993, the Director of Personnel transmitted to the Applicant a copy of the JAB report and informed her, inter alia, as follows: "The Secretary-General. . . agrees with the Board that you do not have a right to any particular post. However, given that priority consideration for any post can come into play only among candidates who are equally qualified and in view of the fact that the Department established that there were other candidates who were better qualified for the post than you, he is unable to share the Board's opinion that the selection process for the P-4 post of Human Rights Information Officer was not conducted in an appropriate manner. Accordingly, he must reject the Board's recommendation that the subject post should not be filled until you have been placed in a post for which you are interested. Based on the record, the Secretary-General is also unable to share the Board's opinion that the efforts made so far by the Administration to locate a post for which you are qualified and in which you are interested were only pro forma. Nevertheless, the Administration shall continue its efforts to identify a post for which you are qualified and in which you are interested." On 1 March 1993, the Applicant filed with the Tribunal the application referred to above. The Applicant separated from service on 30 September 1993. Whereas the Applicant's principal contentions are: 1. The Secretary-General breached the Applicant's terms of appointment, in failing to fulfil his commitment, as expressed in his letter of 13 March 1990, to give her full and fair consideration, on a priority basis, for a vacant and suitable P-4 post for which she was qualified and interested. 2. The Respondent failed to implement Judgement No. 544, Lukas.

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Whereas the Respondent's principal contentions are: 1. The Respondent fully complied with his obligation to the Applicant by identifying and offering to her a number of posts in accordance with Tribunal Judgement No. 544, Lukas. I. The Applicant has failed to establish her allegations of bad faith and/or prejudice in the Respondent's implementation of Judgement No. 544. 3. The Applicant is not entitled to any further compensation. The Tribunal, having deliberated from 19 October to 9 November 1994, now pronounces the following judgement: I. On 13 March 1990, the Applicant was informed that, in accordance with the Joint Appeals Board (JAB) recommendation, "the Secretary-General has further decided to give full and fair consideration to you on a priority basis for any vacant and suitable P-4 post for which you are qualified and interested." The Applicant claimed that the Secretary-General had not fulfilled this pledge. In 1990, she filed an appeal requesting the Tribunal to order the Secretary-General to do so. II. While the case was before the Tribunal, the Applicant was recommended for promotion to the P-4 level. This recommendation was supported by the Office of Human Resources Management, as stated in a memorandum dated 11 October 1992, "as an exception to the Vacancy Management procedures, with a view to implementing the decision of the Secretary-General in her case." III. On 8 November 1991, the Tribunal rendered its Judgement No. 544. The Tribunal held that the efforts made by the Respondent to date had only partially fulfilled the Secretary-General's commitment and that "new efforts should be made in good faith to fulfil the Secretary-General's commitment." On 3 December 1991, the relevant P-5 Personnel Action form was completed and the Applicant's promotion to the P-4 level was implemented, with effect from 26 August 1991. This decision was considered by the Administration in a memorandum dated 10 January 1992, as only "a partial fulfilment of the commitment given." The post against which the Applicant was placed was that of Chief Editor in the Communication Services Section. The Applicant claimed that the post did not "fulfil the requirements of the Secretary-General's decision and the Tribunal's Judgement No. 544." Nevertheless, she accepted it on 23 December 1991, albeit "on a temporary basis until a P-4 [post] which fulfils the Secretary-General's commitment... of 13 March 1990 is available." IV. On 20 May 1992, the Applicant wrote to the Under-Secretary-General for Public Information, expressing her interest in the post of Human Rights Information Officer. In her letter, she pointed out that she could be assigned to that post by a lateral transfer. This post

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was to become vacant following its incumbent's request for a transfer on account of the excessive workload involved. This fact was not unknown to the Applicant. In view of the circumstances, the Chief, Economic and Social Development and Human Rights Programmes Section, Communications and Project Management Division (CPMD), DPI, suggested, on 22 July 1992, in a memorandum to the Director, CPMD, that "the workload on human rights be divided between two people: one person to handle the World Conference on Human Rights and the International Year for Indigenous People and the other to handle the on-going regular human rights programme." She added that "if it is your decision to agree to [the Applicant's] request to become the Project Manager for Human Rights, then it is my understanding that she would transfer to this Section, with her post, to undertake the project management functions associated with the on-going human rights programme." V. The Applicant denies that this suggestion was followed by a formal offer made to her. Nevertheless, the Applicant was aware of the initiative and of the possibility of it leading to an offer. In her submission before the JAB, the Applicant says that "the next step the Director and the Section Chief took was to prepare to divide the human rights job into two P-4 posts so that one person (not me) would have the responsibilities of the World Conference and another person (me) would handle human rights publications. I discussed this manoeuvre with the DPI Acting Executive Officer on August 17 and also with several colleagues who came to me informally to find out how I would react to this arrangement." It is, therefore, clear that the Applicant was aware of the Administration's intentions and that her reaction towards them was negative. It is equally clear that the Administration was also aware of her negative attitude. VI. According to the Applicant, on 21 August 1992, she was informed that her request for a lateral transfer to the Human Rights Information Officer post had been rejected. The Director CPMD/DPI on 23 September 1992, informed her that her request had been refused on the grounds of her insufficient qualifications. The letter elaborates extensively on this issue. Instead, she was offered a choice between two posts; Information Officer for Social Development or Information Officer for the Year of the Indigenous Peoples and the 1994 Year of the Family. VII. The Applicant turned down these offers saying that they were not P-4 posts and therefore did not fulfil the Secretary-General's commitment. In her letter to the Under-Secretary-General for Public Information dated 28 August 1992, after refusing the offers made to her, the Applicant added that she would "continue to press for a lateral transfer to the Human Rights Information Officer job." On 28 September 1992, the Applicant requested the Secretary-General to reverse the decision refusing her the Human Rights Information Officer post.

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VIII. On 18 November 1992, the Applicant lodged an appeal with the JAB. The JAB adopted a report favourable to the Applicant. The Secretary-General did not accept the JAB's recommendations. The Applicant then appealed to the Tribunal and requested that it find that the Secretary-General had "failed to perform his commitments" and "failed to implement Administrative Tribunal Judgement No. 544, Lukas". DC. In the light of the foregoing sequence of events the Tribunal finds: (a) That a number of offers were made to the Applicant in order to provide her with a suitable P-4 post. (b) That these offers appear to have been made in good faith, though the Applicant did not consider the posts to be at an adequate level of responsibility. (c) That the suggestion of dividing the functions of the Human Rights Information Officer post sought by the Applicant was not motivated by an intent to give the Applicant only the least important functions involved. (d) That the suggestion to divide the post was prompted by its excessive workload, a circumstance that had led its previous incumbent to request a transfer. (e) That, even if a formal offer was not made, the Applicant was sounded out as to whether she would accept the new P-4 post which would have included part of the duties of the P-4 post she sought. (f) That the Applicant reacted negatively to such a possibility. (g) That, in fact, the whole recourse procedure initiated by the Applicant is directed solely against the decision not to grant her a lateral transfer to the P-4 Human Rights Information Officer post. In her submission to the Secretary-General dated 28 September 1992, the Applicant requested review of the decision refusing her that post and in her pleas before the JAB she asked to be "placed against the Human Rights job for which I applied." (h) That the Applicant's attitude in this respect is not in keeping with Judgement No. 544, Lukas, paragraph VI, in which the Tribunal held that the Applicant was "not entitled to single out or to choose the post to be assigned to her." (0 That the Secretary-General's commitment referred to a post for which the Applicant would be duly qualified. (/) That the Applicant's qualifications were appraised freely by the Administration as provided by the relevant Rules and Regulations and that the refusal to accept her request for the post she sought was not based on prejudice or other extraneous factors. X. For the foregoing reasons, the Tribunal decides:

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1. That the Secretary-General has not acted contrary to his commitment by refusing the Applicant's request for a transfer to the Human Rights Information Officer post. 2. That the Administration has made reasonable efforts to honour the Secretary-General's commitment. XL The Applicant also asks the Tribunal to order the Director CPMD/DPI to offer apologies for statements contained in his letter to the Applicant dated 23 September 1992. The Tribunal declines to do so since the Applicant cannot assert a claim of defamation of her reputation on account of an internal letter of this nature directed to her. The Applicant also requests that her promotion to the P-4 level be given an earlier implementation date that would enable her to obtain an improvement in her pension. This point was not part of the Applicant's original recourse and was not submitted to the JAB. The Tribunal therefore cannot entertain it. XII. For the foregoing reasons, the application is rejected in its entirety. (Signatures) Jerome ACKERMAN

Luis de POSADAS MONTER

First Vice-President, presiding Mikuin Leliel BALANDA

Second Vice-President R. Maria VlCIEN-MlLBURN

Member

Executive Secretary

New York, 9 November 1994

Judgement No. 679 (Original: English/French) Case No. 682: Fagan

Against: The Secretary-General of the United Nations

Application of a former staff member of the United Nations Children's Fund (UNICEF) for an order not to terminate the Applicant's permanent contract pending the Tribunal s decision on her application, for a ruling that she was entitled to return to her former post, for compensation for the damages suffered and for costs. The Joint Appeals Board recommended suspension of administrative action to remove the Applicant from her post.—Recommendation rejected as the action had already been implemented.—On the merits the Board found that UNICEF procedures with regard to filling of upgraded posts were tainted by extraneous factors and recommended (a) that no action

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be taken to terminate the Applicant's permanent appointment and (b) compensation of three months of net base salary.—Recommendation (a) accepted and (b) rejected.—At a later stage the Board recommended suspension of administrative action to separate the Applicant from service pending the outcome of her appeal.—Recommendation accepted.—On the merits the Board recommended afinal three-month extension to allowfor further efforts to find a placement for the Applicant.—Recommendation accepted. The Tribunal recalls the circumstances in which the Applicant, holder of a G-5 post reclassified to G-6 level, was not selected for the reclassified post and efforts were made to find another placementfor her, in accordance with staff rule I09.1(c).—The Tribunal notes that this staff rule does not preclude the possibility of a termination.—Having found in favour of the Applicant on other grounds, the Tribunal finds no need to address her pleas that the UNICEF procedure in reclassifying posts and the treatment of incumbents of those posts violated her acquired rights.—It finds no merit in the Applicant's claim that she had a right to be appointed to the new G-6 post: staff members have no right to be appointed to any given post, they are only entitled to be duly considered for it.—It finds that the conditions in which the Applicant's candidacy was considered are open to criticism and that thefailure of her candidacy was attributable to unfavourable evaluation and ratings in her performance evaluation reports.—The Tribunal notes that the Applicant's two performance evaluation reports, while mentioning her praiseworthy efforts to cope with her professional obligations, mention inadequacies deriving from extra work involved in union and representational activities.—In one of the two reports established at the Applicant's request the Ombudsperson recommended that the Applicant and her supervisors define « reasonable time » that she could devote to her union and representational activities, while in the other the Ombudsperson found that one of the performance evaluation reports was flawed.—The Joint Appeals Board took the view that the two reports were tainted by extraneous factors.—While the Tribunal holds that the supervisors' discriminatory intentions have not been proven, it considers that a regrettable situation was created, through the fault of the UNICEF Administration, in failing to define the time which the Applicant could devote to her professional and representational activities respectively, which should have been done in accordance with administrative instruction ST/AI/293.—Failure to do so was the primary source of events which resulted in the rejection of the Applicant's candidacy for the reclassified post and thus rendered the selection process flawed.—Detailed analysis of provisions regarding union and staff representational activities in this instruction, in staff regulation 8.1 and in staff rules 108.1 and 108.2.—It is important to make arrangements formal or informal, to determine the time staff representatives should allot to these duties and to their office duties.—Union and staff representational activities are not only legitimate but they contribute to the proper functioning of the Organization.—Staff representatives must have the necessary time and facilities for this purpose.—While the concept of« reasonable time » for this purpose is not defined in the texts, the Tribunal considers that it is the time necessary and sufficient for the exercise of representational activities.—The Tribunal stresses the importance of staff rule 109.1 (c) which is vital to the security of staff having acquired permanent status.—Consideration of the procedure followed to find an alternative postfor the Applicant under this staff rule.—The Tribunal finds no evidence of discrimination against the Applicant, but it appears that the failure to find alternative employment derives from the negative assessment of her performance in the absence of an arrangement regarding her obligations.—While the Tribunal concludes that the Applicant's complaints regarding discrimination against her on account of her union and staff representational activities are not substantiated by evidence, the procedure applied to her, including her dismissal, was vitiated by the failure to conclude, at the proper time, arrangements under administrative instruction ST/AI/293, in contradiction with chapter VIII of the Staff Rules and with the procedure laid down in that instruction. The Tribunal decides to rescind the decision that led to the termination of the Applicant's permanent appointment and orders her reinstatement as of the same date.—It fixes the compensation to be paid to the Applicant, should the Secretary-General decide not to re-

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instate her, at one year of her net base salary at the date of separation.—It also decides that the balance of the statutory termination indemnity should be paid whenever the fixed-term appointment which the Applicant may have with the United Nations expires.—Request for costs rejected, in accordance with the Tribunals finding in paragraph XXIX of Judgement No. 237 (Powell).

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Luis de Posadas Montero, Vice-President, presiding; Mr. Hubert Thierry; Mr. Francis Spain; Whereas, on 15 July 1992, Susan Fagan, a former staff member of the United Nations Children's Fund, hereinafter referred to as UNICEF, filed an application requesting the Tribunal, inter alia: "To order the Respondent... not to take any action to terminate the Applicant's permanent contract pending the outcome of the Tribunal's decision on her application; 8. ... (b) To... rule that... the Applicant was entitled to return to her previous post as a result of the serious and cumulative irregularities that occurred in respect of the decision to remove her from her post; (c) To... rule further that UNICEF's procedures for the upgrading of posts including the treatment of incumbents, as well as their practices with respect to double incumbency of posts and their attempt to terminate the permanent contract of the Applicant violated the acquired rights of the Applicant...; (d) To order the Respondent to abide by his decision that no action be taken to terminate the contract of the Applicant for the purpose of allowing UNICEF to give her the benefit of staff rule 109.l(c)...; (e) To award the Applicant appropriate compensation... for the actual, consequential and moral damages suffered by the Applicant as a result of the Respondent's action or lack thereof; (f) To fix, pursuant to article 9, paragraph 1 of the Statute and Rules, the amount of compensation to be paid in lieu of specific performance at two year's net base pay; (g) To award the Applicant, as costs, the sum of $4,000.00." Whereas the Respondent filed his answer on 27 November 1992; Whereas the Applicant filed written observations on 28 January 1993; Whereas the Tribunal heard the parties at a public hearing held on 18 October 1993;

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Whereas, in November 1993, the Tribunal decided to adjourn consideration of the case until its 1994 Spring session; Whereas, on 12 July 1994, the Tribunal put questions to the Respondent to which he provided answers on 13 and 14 July 1994; Whereas, in September 1994, the Tribunal decided to adjourn consideration of the case until its 1994 Autumn session; Whereas the facts in the case are as follows: The Applicant entered the service of UNICEF on 12 May 1966, as a File Clerk/Typist at the G-2 level. After serving on a succession of fixed-term appointments and, with effect from 12 November 1966, on a probationary appointment, she was granted a permanent appointment on 1 May 1968. During the course of her employment with UNICEF, the Applicant was promoted to the G-3 level, with effect from 1 February 1967, to the G-4 level, with effect from 1 July 1974 and to the G-5 level, with effect from 1 January 1980, with the functional title of Registry Assistant. On 10 July 1987, the Applicant was transferred to the post of Basic Assistant List (BAL) Control Clerk. On 13 January 1992, she was assigned to the Office of the Director of the Programme Division. On 11 February 1993, the Applicant's permanent appointment was terminated and she separated from UNICEF. Performance Evaluation Reports The Applicant's performance as BAL Control Programme Assistant from 14 July 1988 to 31 December 1989 and from July to December 1990, was evaluated in two performance evaluation reports (hereinafter referred to as "the first report" and "the second report") which the Applicant signed "under protest" on 20 September 1991. In February 1990, the Applicant completed her section of the "first report". In March 1990, her supervisor completed his sections and forwarded the report to the Applicant for signature. In his comments on her performance, her supervisor stated that because of her Staff Union activities, the Applicant spent "a lot of time away from the post" and that her answering phone calls from staff who sought her advice "had often resulted in interruption of the task at hand." On 4 April and 18 May 1990, the Applicant's supervisor asked her to sign the report, but she did not do so. After an exchange of correspondence with her supervisor, on 27 July 1990 the Applicant initiated a rebuttal to the report in a memorandum to the Director, Programme Division. On 12 October 1990, the Applicant's second reporting officer signed the report. On 30 April 1991, she informed the Personnel Officer, through the Director, Programme Division, that the Applicant refused to sign her report. On 18 July 1991, the Applicant wrote to the Personnel Officer, advising that she intended to avail herself of the services of an

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Ombudsperson. On 20 September 1991, the Applicant signed her first report stating: "I disagree with and protest the entire PER [Performance Evaluation Report] because the ratings given do not accurately reflect the quality or quantity of work, but were intended to penalize me for staff representational activities and to force me to give them up I am signing under protest. The matter has already been brought to the attention of an Ombudsperson." During June and July 1991, the Applicant's supervisor and second reporting officer completed their parts of the Applicant's second report. The Applicant discussed this report with the Director, Programme Division, her second reporting officer. On 13 August 1991, she wrote to him, expressing her disagreement with the low ratings she had been given and stating that she was being "set up to be thrown out of the Section and ultimately out of the Organization, as when in early 1990, my supervisors tried to oust me from the Section by preventing me from performing my job." She also alleged that comments concerning her staff representational activities were "not legitimate". On 21 October 1991, the Applicant's supervisor submitted her comments on this communication as part of the rebuttal process. The Applicant submitted further comments on 29 November 1991. On 20 September 1991, the Applicant signed the second report "under protest", stating that she disagreed with specific ratings "because the PER is being used as a tool to punish me for my staff representational activities." On 25 January 1992, the Ombudsperson submitted her report on the "second report" and recommended as follows: "17. ... [The] Ombudsperson reached the conclusion that the supervisor's assessment was flawed. It is recommended that ratings for professional competence be changed from 2 to 4; and quantity and quality of Work be changed from 3 to 4. The staff member was able to complete assignments with accuracy and met the objectives required despite the difficult circumstances she encountered in her specific work situation. 18. ... that the ratings for work relationships be changed from 3 to 5 and for communications skills to be changed from 4 to 5. It should be noted that staff member maintained an excellent relationship with all co-workers." On 30 January 1992, the Ombudsperson submitted her report on the "first report" and recommended: "That due consideration be given to the fact that the staff member in her previous post received PER's that showed that her performance was good.

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That the supervisors and the staff member hold discussions to establish a reasonable cap on hours spent on staff activities." On 7 February 1992, the Deputy Executive Director of UNICEF appraised the Ombudsperson's comments on the first and second reports, stating, inter alia: (A) First Report "... [that] a total of one year and three months elapsed from the date of 20 October 1990, when [the Applicant] was given her PER and 30 January 1992, when you submitted your report as her Ombudsperson. We maintain that her deliberately delaying completion of her PER is not only a violation of the PER process but also renders her use of the Ombudsperson system as time-barred. Therefore, as far as the Organization is concerned, [the Applicant's] 1989 PER is complete. She did indeed issue a statement on 27 July 1990, following completion of the PER by the First Reporting Officer, protesting the 1989 PER and this statement formed an integral part of the PER record." (B) Second Report ". . . It was not until we read your Ombudsperson's report, Part A, that we learned that [the Applicant] contacted you in August 1991, in connection with her 1990 PER.... ... it is clear from her statement dated 20 September 1991,... that while she signed under protest... she made no mention of any intent to avail herself of the services of an Ombudsperson. The only logical explanation in this regard is that [the Applicant] did not intend to avail herself of our grievance procedure, but rather clearly opted only to make reference to her memo of 13 August 1991 to [the Director, Programme Division] registering her disagreements with the PER. In accordance with our established procedures in handling disagreements on completed PERs, this statement rendered her completion of the 1990 PER as final. Therefore, as we consider [the Applicant's] 1990 PER to be complete, we do not consider it appropriate to comment on the substantive issues you are now raising in your Ombudsperson report, Part A . . . . Classification of Post In September 1990, the Programme Division requested the reclassification of the Applicant's post from the G-5 to the G-6 level. The Job Classification Panel approved the upgrading, with effect from 1 January 1992, with the title of the post as "Programme Budget Assistant". The Applicant contends that: "She was never noti-

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fied of the upgrading nor given the report to participate in the submission of the new job description as required by UNICEF policy." On 1 August 1991, the Division of Personnel issued a Vacancy Announcement of the G-6 level post of Programme Budget Assistant, which was encumbered by the Applicant. The announcement was in accordance with the guidelines contained in UNICEF administrative instruction CF/AI/352/Amend.4 and CF/AI/352/ Amend.4/Add. 1. Five staff members applied for the post, including the Applicant. According to the record, a Selection Advisory Panel (SAP) reviewed the qualifications of all candidates and recommended to the Appointment and Promotion Committee (APC) a staff member other than the Applicant for the post. On 12 November 1991, the APC endorsed the recommendation by the SAP. The Minutes of the APC meeting read, in part, as follows: [The Applicant], the Committee noted, was placed in the subject post in 1987, when her then post of Registry Clerk was abolished. It was reported that she has been given extensive on-the-job training, but that her performance nevertheless, has on balance, not been fully satisfactory as indicated in her Performance Reports since joining the Section. The Committee conducted a thorough and lengthy review of the case, bearing in mind the fact that the post was encumbered, and, taking all factors into account, concluded that [the other staff member] was clearly the best qualified candidate. Accordingly, the Committee endorsed the Selection Advisory Panel's recommendation for [the other staff member's] appointment to the subject post, with promotion to the upgraded G-6 level, effective 1 January 1992." In a letter dated 22 November 1991, the Director of the Division of Personnel informed the Applicant that she had not been selected for the post she encumbered and that she would be given "every reasonable consideration for priority placement in another suitable vacant post." He concluded: "In our placement efforts, we will take into account your overall performance, qualifications and contractual status as per AI1986-10 on 'Personnel Policies and Procedures applicable to incumbents of posts which are to be abolished'. In the event that we are unable to place you in a suitable post, your permanent appointment will be terminated as of 31 May 1992, with the appropriate termination indemnity." On 20 December 1991, the Applicant requested a review of the administrative decision not to appoint her to the post of Programme Budget Assistant. On 8 January 1992, the Director of the Division of Personnel wrote to the Applicant, informing her that she would "be attached to the Direc-

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tor's Office, Programme Division, with effect from 13 January 1992, through 31 May 1992." He also reiterated his advice that she apply for other posts for which she might be qualified. On 9 January 1992, the Applicant asked the Secretary of the Joint Appeals Board (JAB) to arrange, under staff rule 111.2(a), for the designation by the Presiding Officer of the JAB of "a Chairperson or member of the appropriate JAB,... with a view to reaching a conciliatory conclusion of the matter." She also requested a suspension of action on the decision to remove her from her post. Conciliation proceedings took place but it was not possible to reach agreement. On 24 January 1992, the Deputy Executive Director informed the Applicant, on behalf of the Secretary-General, that the administrative decision not to select her for the post she encumbered had been "undertaken fairly and properly ..." and would be maintained. On 10 February 1992, the Applicant lodged an appeal with the JAB and, at the same time, requested, under staff rule 111.2(f), suspension of action of the contested decision and the "related action underway to remove me from my job." In its report adopted on 28 February 1992, the JAB recommended that "any action to remove [the Applicant] from her post be suspended until the [JAB] submits its recommendation on the substance of the appeal..." On 27 February 1992, the Director, Office of the Under-Secretary-General for Administration and Management, informed the Applicant that the Secretary-General could not accept this recommendation as the administrative decision she was contesting had already been implemented. The JAB adopted its report on the merits of the case on 9 April 1992. Its conclusions and recommendations read, in part, as follows: "38. ... the Panel concluded that the procedures laid down by UNICEF's appointment and promotion bodies to fill the upgraded post in question were followed. However, the Panel felt that the [Applicant's] PERs submitted to the appointment and promotion bodies, were tainted by extraneous factors, which affected the full review of [the Applicant's] candidature by her peers. 40. The Panel recommends that UNICEF find, without further delay, a suitable post for the [Applicant], where she will be able to utilize her skills and the long-time experience gained in the Organization. No action should be taken to terminate the [Applicant]'s permanent appointment. 41. Bearing in mind that staff representational activities are part of staff members' official duties necessary for staff management consultations the Panel recommends that the [Applicant] and

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Administrative Tribunal of the United Nations

her supervisors reach a better understanding as to the fulfilment of the [Applicant's duties as a staff representative, which would enable the [Applicant] to carry out her duties in the office together with her responsibilities as a staff representative, under the provisions of staff rule 108.1. 42. Having concluded that the [Applicant] was unfairly treated in connection with her consideration for the upgraded post, and that she was improperly threatened with termination of her permanent appointment, the Panel recommends that the [Applicant] be paid the equivalent of three months' net base salary, and makes no further recommendations in support of the appeal." On 21 May 1992, the Officer-in-Charge of the Department of Administration and Management informed the Applicant that the SecretaryGeneral: "... has examined your case in the light of the Board's report. He agrees with the Board's finding that there was no evidence of any ill-intention on the part of UNICEF towards you in the filling of the upgraded post. He cannot, however, share the Board's reservations about the fairness of the selection process. . . . The Secretary-General finds no impropriety in UNICEF's decision to proceed with the selection without waiting for the Ombudsperson's report on your 1989 PER as most of the delay was due to your initial refusal to complete your 1989 performance evaluation report. Such action cannot bring the UNICEF selection process to a halt. Moreover, the selection process cannot be vitiated by the fact that it took place without consideration of the Ombudsperson's report on the 1990 PER since UNICEF was not on notice that such a report was forthcoming. The Secretary-General has also noted that the promotion bodies had received copies of your rebuttal statements prior to the consideration of your case. Your right to full and fair consideration was therefore respected. As regards UNICEF's policy that an upgraded post is regarded as a new post and that the former post at the lower level is considered abolished, the Secretary-General finds that this policy is consistent with staff regulation 2.1. He further finds that UNICEF instruction CF/AI/352/Amend.4/Add.l does not conflict with staff rule 109.1(c) but provides guidance for reviewing cases of locally recruited staff encumbering upgraded posts. Its procedures must be followed, but a staff member whose post has been upgraded is also entitled to the application of the provisions of staff rule 109.1 (c) prior to any action being taken towards separation from service. The Secretary-General has noted that you had been given a reasonable amount of official time off to carry out your representational

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responsibilities. He is satisfied that your supervisors provided you with every reasonable support to carry out those responsibilities, as well as your responsibilities in respect to your duties in the office." On the basis of the above considerations, the Secretary-General has decided "(a) to reject the recommendation that you be paid three months' net base salary; (b) to accept the recommendation that no action should be taken to terminate your appointment, for the purpose of allowing UNICEF to give you the benefit of staff rule 109.1(c), insofar as it applies to locally recruited staff; (c) to request UNICEF to include a copy of the Board's report in your Official Status file; (d) to take no action with respect to your representational activities." According to the record, on 26 May 1992, the Applicant's candidacy for two secretarial posts was reviewed in a meeting of the APC. The APC concluded that the Applicant did not meet the minimum requirements for these posts. At the same meeting, the APC reviewed the Applicant for eight posts encumbered by staff members holding fixed-term appointments. According to the Respondent, "the APC was made aware of the Applicant's situation (abolition of her post, her permanent appointment, her JAB appeal and the applicability of staff rule 109.1 (c))". The APC did not recommend the Applicant for any post. On 28 May 1992, the Deputy Executive Director (Operations) informed the Applicant as follows: "As decided by the Secretary-General, UNICEF will continue its placement efforts on your behalf, subject to the availability of suitable posts in which your services can be effectively utilized, to give you the benefit of staff rule 109. l(c), insofar as it applies to locally recruited staff. Thus, the notice period of six months given to you on 22 November, is hereby extended through 31 August 1992. In the event we are unsuccessful in placing you in a suitable post by that date, your permanent appointment will be terminated, with appropriate termination indemnity...." In a letter dated 10 June 1992, the Applicant asked the Under-Secretary-General for Administration and Management whether the letter of 28 May 1992, from the Deputy Executive Director, was consistent with the Secretary-General's decision of 21 May 1992, that "no action would be taken to terminate [the Applicant's] appointment for the purpose of allowing UNICEF to give the benefit of staff rule 109.1 (c)". In a reply dated 23 June 1992, the Under-Secretary-General for Administra-

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tion and Management stated that there was "no contradiction" between the two letters: "the purpose of the extension of the six-month notice period previously given to [the Applicant] by UNICEF is to allow for [her] rights under staff rule 109.1(c) to be fully respected." On 17 June 1992, the Applicant requested the Secretary-General to review the administrative decision contained in the letter of 28 May 1992, from the Deputy Executive Director (Operations), alleging that the decision was "contrary to the unanimous recommendation made by the JAB on my case . . . adopted as a decision of the Secretary-General as conveyed to me in the letter of the Officer-in-Charge dated 21 May 1992". She added: "The decision of the Secretary-General is quite clear in that there are no time limits imposed to find an appropriate post for me." In a reply dated 15 July 1992, the Deputy Executive Director (Operations) referred the Applicant to the letter of 23 June 1992, from the Under-Secretary-General for Administration and Management and informed her that the decision would be maintained. On 15 July 1992, the Applicant filed with the Tribunal the application referred to earlier. On 17 July 1992, the Applicant lodged an appeal with the JAB asking the JAB to recommend to the Secretary-General that "UNICEF suspend action on the termination of my permanent appointment by 31 August 1992, pending its in-depth consideration of the substance of UNICEF's administrative decision..." On 3 August 1992, the ad hoc Deputy Coordinator of the Panel on Discrimination and Other Grievances (Panel on Discrimination) submitted a report to the Executive Director and to the Secretary-General on the complaint filed by the Applicant with the Panel that her PERs for 1989 and 1990 had been incorrectly drawn up and that, as a result, she had not been selected to fill the post which she had held for four years, when it was reclassified to the G-6 level. In a reply dated 31 August 1992, the Deputy Executive Director (Operations) informed the Panel on Discrimination that the Executive Director had acted on the complaints by the Applicant in the light of the JAB report and that he did not propose to take any further action thereon. The JAB adopted its report on the suspension of action on 14 August 1992. Its conclusion and recommendation read as follows: "Conclusion and recommendation 13. The Panel concluded that by shifting the burden for finding a post from the Organization to the [Applicant], and by setting the deadline, the possibility that a suitable post would become available was diminished. UNICEF has thereby ignored the Secretary-General's directive and, therefore, placed an additional burden on the [Applicant] during an already stressful time.

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14. Therefore, the Panel recommends that all action to separate the [staff member] from service be suspended pending the decision on the substance of this appeal, and that during such time, and if necessary, thereafter, the Secretary-General's directive to find her a suitable post be implemented." On 25 August 1992, the Assistant-Secretary-General for Human Resources Management transmitted to the Applicant a copy of the JAB report and informed her as follows: "The Secretary-General has taken note of the Board's report and decided to approve the recommendation of the Panel that all action to separate you from service be suspended pending the decision on the substance of your appeal. He requests that the Panel expedite consideration of your appeal and submit its report by 15 October 1992." The JAB adopted its report on the merits of the case on 13 October 1992. Its conclusions and recommendations read, in part, as follows: "Conclusions and recommendations 21. ... The Panel... recommends that UNICEF extend the Appellant's service for a final three-month period from the date of the Secretary-General's decision on this report and expend every effort on a priority basis to resolve the issue with the Appellant. Towards that end the Panel also recommends that the Appellant herself aggressively pursue placement opportunities during that time." On 12 November 1992, the Director of Personnel transmitted to the Applicant a copy of the JAB report and informed her as follows: "The Secretary-General. . . concurs with the Board's recommendation that your service should be extended for a final three-month period from today during which every effort should be made both by UNICEF and yourself to resolve the placement issue. At the end of this three-month period, in the event no suitable post has been found, you will be separated from service with appropriate termination indemnity. The Secretary-General has also noted that UNICEF has already expended consistent efforts in pursuing the issue, including a review by its Appointment and Promotion Committee of your suitability against 19 posts, including vacant (both current and projected) and fixed-term G-level posts." On 19 November 1992, the Deputy Executive Director (Operations) wrote to the Applicant as follows: "In line with the decision of the Secretary-General [of 12 November 1992], your service will be extended for a final three-month period from 12 November 1992 through c.o.b. [close of business]

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11 February 1993. During this time period, you will continue to be attached to the Director's Office, Programme Division, and every effort will be made by UNICEF to resolve the placement issue. We also note the Secretary-General's statement that every effort should also be made by you in this regard. As per the decision of the Secretary-General, at the end of this three-month period, in the event no suitable post has been found, you will be separated from service with appropriate termination indemnity." In a letter dated 8 February 1993, the Applicant requested the Secretary-General to review this administrative decision. On the same date, she lodged an appeal with the JAB, requesting a suspension of action on the contested decision. The JAB adopted its report on 16 February 1993. Its considerations and recommendations read, in part, as follows: '''Considerations and recommendations 21. The Panel was not in a position to judge the efforts made by UNICEF to resolve the [Applicant's placement problem. On the other hand the Panel felt that in reviewing the suitability of the [Applicant] for other possible posts, UNICEF has not given the [Applicant] any preference over other staff members who had other types of appointment, as required by staff rule 109.1(c)(i). 22. The Panel found that it had no competence to re-open issues previously dealt with by the JAB, issues which had been the subject of a final decision by the Secretary-General. 23. Accordingly, the Panel decided to recommend that the [Applicant]'s request for suspension of action be denied." On 17 February 1993, the Director of Personnel transmitted to the Applicant a copy of the JAB report and informed her as follows: "The Secretary-General has re-examined your request in the light of the Board's report. While he has reservations in regard to the Panel's observation on the treatment of your candidature by UNICEF in its attempt to resolve your placement problem, he has decided, in accordance with the Board's recommendation, not to accept your request for suspension of action." The Applicant had separated from the service of UNICEF on 11 February 1993. After her separation from service, the Applicant was paid four months of her termination indemnity. From 16 June 1993 to date, the Applicant has been employed by the United Nations on a series of fixed-term appointments of one month at the G-4 level. Whereas the Applicant's principal contentions are:

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1. The Applicant's performance evaluation reports were tainted by prejudice so as to provide an improper basis for the decision not to appoint the Applicant to her former post, after it had been reclassified. 2. The Applicant's rights were violated by the Executive Director's decision of 28 May 1992, to limit to a three month period the search for alternative posts mandated by staff rule 109.1(c), thereby threatening her with termination of her permanent appointment earlier than envisaged in the Secretary-General's decision. 3. The Applicant's rights were violated by the Respondent's decision to take no action on certain recommendations of the JAB. Whereas the Respondent's principal contentions are: 1. Selection of another staff member for the post in question was a valid exercise of administrative discretion. The Applicant's lengthy delays in instituting grievance procedures do not give her a right to suspension of the selection process. 2. No credible evidence exists indicating that the evaluation of the Applicant, as recorded in her performance evaluation reports, was tainted by prejudice or other improper motive. 3. UNICEF did not violate the Applicant's rights in the procedure of reclassification of the Applicant's post. 4. Staff do not have a right to expect the Secretary-General to accept the recommendations of joint bodies, even if unanimous. 5. The decision of the Secretary-General has been properly implemented and takes account of the rights of staff whose posts have been abolished to benefit from the procedures set out in staff rule 109.1(c). 6. Staff are entitled to a reasonable period of time for staff representational activities. The Applicant has provided no evidence that she was unreasonably denied release from her duties for such activities. The Tribunal, having deliberated from 20 October to 16 November 1993 in New York, from 28 June to 21 July 1994 in Geneva and from 14 October to 9 November 1994 in New York, now pronounces the following judgement: I. The Applicant, a former staff member of UNICEF, encumbered a post at the G-5 level. This post was reclassified to the G-6 level, with effect from 1 January 1992. As a consequence, and in accordance with the policy followed by UNICEF, the post at the G-6 level was considered a new post and advertised as a vacancy. The Applicant applied for this post, but was unsuccessful. She was informed, on 22 November 1991, that another candidate had been selected and that her permanent appointment would be terminated if no suitable post could be found for her. II. The Applicant alleged that the decision not to appoint her to the new post was based on incomplete information "since my last two perfor-

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mance evaluation reports are still unresolved". The Administration decided to maintain its decision and the Applicant lodged an appeal before the JAB. She requested a stay of the decision and reiterated the arguments set forth when requesting administrative review. III. The JAB found that "the Appellant's PERs [performance evaluations reports] submitted to the Appointment and Promotion bodies, were tainted by extraneous factors, which affected the full review of Appellant's candidature" and that she had been "improperly threatened with termination". The JAB recommended an indemnity of three months salary. It also recommended that UNICEF "find, without further delay, a suitable post for the Appellant" and that "no action be taken to terminate the Appellant's permanent appointment." As the JAB viewed the Applicant's PERs, which were submitted to the APB, as tainted by extraneous factors connected with the Applicant's Staff Union activities, it also recommended that "the Applicant and her supervisors reach a better understanding as to the fulfilment of the Applicant's duties as a staff representative." IV. The Secretary-General, in his decision of 21 May 1992, did not completely follow the recommendation of the JAB. While the JAB recommended "that UNICEF find, without further delay, a suitable post for the Appellant", the Secretary-General said that "no action should be taken to terminate your appointment, for the purpose of allowing UNICEF to give you the benefit of staff rule 109.1(c)." The Tribunal notes that staff rule 109.1(c) does not preclude the possibility of a termination. V. The Applicant was not satisfied with the Secretary-General's decision and appealed to the Tribunal, submitting several pleas, including a request "to rescind the decision of the Secretary-General insofar as it rejects the unanimous recommendation of the JAB that UNICEF find without further delay a suitable post for the Applicant." In this respect, the Tribunal finds that the Respondent must give full effect to article 109. l(c) of the Staff Rules which states, in part, that "subject to the availability of suitable posts in which their services can be effectively utilized, staff members with permanent or regular appointments shall be retained in preference to those on all other types of appointments." VI. The Tribunal notes that the Applicant in her pleas before the Tribunal challenges the procedure of UNICEF in reclassifying posts, and the treatment of incumbents of those posts, as a violation of her acquired rights. She also requests the Tribunal "to find that the Applicant was entitled to return to her previous post." While this challenge raises an important issue, as the Tribunal finds in favour of the Applicant on other grounds, there is no need to address it. Moreover, although there is discussion of the UNICEF reclassification procedure on the record, the Tri-

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bunal has some question as to whether the issue was properly raised in the initial stages of the proceedings before the JAB. VII. The Tribunal finds no merit in the Applicant's claim that she has a right to be appointed to the new G-6 post. According to its jurisprudence, staff members have no right to be appointed to any given post; they are only entitled to be duly considered for it. Nevertheless, the Tribunal is of the view that the conditions in which the Applicant's candidacy was considered are open to criticism. The post was filled without awaiting the results of the rebuttal procedures connected with the Applicant's performance evaluation reports. While it must be acknowledged that those procedures were unduly prolonged by the Applicant's initial refusal to sign the reports concerned, it appears that, in the last analysis, the failure of her candidacy was attributable to the unfavourable evaluation and ratings given in those reports. According to the Applicant, her performance evaluation reports for the periods 14 July 1988-December 1989 and July-December 1990 (which is when she was called upon to engage in union and staff representational activities concurrently with her office duties) were drafted with the deliberate intention of discouraging her from continuing her union and representational activities or, at the least, of inducing UNICEF to adopt a more clearly defined policy regarding the rights and obligations of staff representatives and the choice of union bodies authorized to defend the interests of UNICEF staff. The Tribunal has taken the two disputed reports into consideration. It notes that they bring out the difficulty of the tasks entrusted to the Applicant, for which she was not well-prepared. The first of these reports mentions her praiseworthy efforts to cope with her professional obligations. It says that: "It is well recognized that the staff member has made tremendous efforts to learn and accomplish the tasks mentioned in 2.1." (The reference is to computer work). Mention is also made, however, of inadequacies deriving from the extra work involved in union and representational activities. These inadequacies are reflected more in the ratings than in their accompanying comments. The Tribunal has equally taken note of the opinions of the Ombudsperson enlisted by the Applicant. In one report, dated 30 January 1992, this authority recommended that the Applicant and her supervisors should hold discussions so as to define the "reasonable time" that she could devote to her union and representational activities. In a second report, dated 25 January 1992, the Ombudsperson found that the performance evaluation report for the period July-December 1990, was flawed and recommended that the Applicant's ratings should be revised. In addition, the Joint Appeals Board, which was seized of the Applicant's complaint, took the view that the two performance evaluation reports were

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tainted by extraneous factors. (Cf. paragraph 38 of the Joint Appeals Board's report of 9 April 1992.) These convergent opinions, which are highly favourable to the Applicant's case, deserve consideration. However, the Tribunal is of the opinion that the supervisors' discriminatory intentions have not been proven. On the other hand, it appears that a regrettable situation was created with respect to the evaluation of the Applicant's performance, as a result of a lack of definition of her obligations, particularly the uncertainty regarding the time that she should devote to her professional and representational activities, respectively. In the Tribunal's view, it is this vagueness that led to the seeming inconsistencies in the wording of the Applicant's performance evaluation reports. As recommended by the Ombudsperson, adjustments were required to enable the Applicant to cope simultaneously with her office duties and her personnel representation activities without being overburdened. An arrangement should have been made to resolve this matter, in accordance with the directive laid down in administrative instruction ST/AI/293. The failure of the UNICEF Administration in this regard is culpable. VIII. In the opinion of the Tribunal, great significance should be attached to the last sentence of paragraph 11 of administrative instruction ST/AI/293. It is important for arrangements to be made in each case in order to determine the facilities or assistance which staff representatives should receive and the time which should be allotted to their staff representational activities, on the one hand, and their office duties, on the other. These arrangements may be either formal or informal, but it is important that they should be concluded in advance. In other words, when a staff member is called upon to engage in representational activities, all concerned should know where they stand, so as to avoid disputes. It would seem that, in most cases, the application of these rules does not create any major difficulty. However, this was not so in the present case, which comprises various contentious episodes raising questions concerning the Applicant's union and representational activities and their relationship with her office duties. Thus, the uncertainty regarding the Applicant's obligations, deriving from the failure to conclude an arrangement as provided in administrative instruction ST/AI/293, was the primary source of the subsequent events that resulted in the rejection of her candidacy. Therefore, the Tribunal concludes that the selection process by which the G-6 post was filled was flawed. IX. The Tribunal must now determine whether the decision of 28 May 1992, and the subsequent decisions which ultimately resulted in the termination of the Applicant's permanent appointment with UNICEF, by a decision of 12 November 1992, are valid or whether, on the contrary,

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these decisions should be annulled, either because of discrimination suffered by the Applicant by reason of her union and staff representational activities or on any other ground. The Tribunal will answer these questions based on the following relevant staff regulations and rules and administrative instructions. X. Staff regulation 8.1 (a) states: "The Secretary-General shall establish and maintain continuous contact and communication with the staff in order to ensure the effective participation of the staff in identifying, examining and resolving issues relating to staff welfare, including conditions of work, general conditions of life and other personnel policies." Paragraph (b) of the same article provides: "Staff representative bodies shall be established and shall be entitled to initiate proposals to the Secretary-General for the purpose set forth in subparagraph l(a) above." Lastly, staff rules 108.1 and 108.2, constituting chapter VIII of the Staff Rules, contain detailed provisions concerning "Staff representative bodies" and "Joint staff-management machinery". It follows from these texts that union and staff representational activities are not only legitimate but that, as conceived by the Staff Regulations and Rules, they meet the concern to involve staff and management thereby contributing to the proper functioning of the Organization. XI. In order to ensure that the statutory provisions concerning staff representation are not, either directly or indirectly, rendered ineffective, staff members who exercise responsibilities as representatives of their colleagues in the bodies where such representation is required must have the necessary time and facilities for that purpose. This concern is addressed by administrative instruction ST/AI/293, according to which: "The functions of staff representatives are official. Staff representatives shall have the same rights, duties, obligations and privileges as other staff members of the United Nations under the Staff Regulations and Rules and shall enjoy protection against any discriminatory treatment or prejudicial action based on their status or activities as staff representatives." The official nature of the functions of staff representatives implies that time spent in exercising these functions should not be regarded differently from the time spent on office duties, but as being on a par with the latter. XII. Paragraph 9 of administrative instruction ST/AI/293 stipulates: "Staff representatives shall be entitled to attend established meetings of the Staff Council or corresponding staff representative body. Staff representatives shall also be granted reasonable official time to attend meetings of related bodies or to represent the staff in joint advisory bodies, including standing committees, working groups, etc. The proportion of official time spent by staff members on representational activities should not be unreasonable in relation to the carrying out of assigned duties." It is provided that the President or Chairman of the Executive Com-

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mittee of each Staff Council in the locations where the United Nations has offices may be granted full-time release from assigned duties if the number of staff members represented is 1,000 or more, or half-time release, if that number is less than 1,000. With regard to other members of the Executive Committee, it is stated (paragraph 11) that: "Other members of the Executive Committee should be afforded the necessary time required for them to carry out their functions promptly and efficiently. The details of such arrangements are to be determined in accordance with the procedures set out in chapter VIII of the Staff Rules." The concept of "reasonable time" calls for a definition which is not contained in the administrative texts. The Tribunal considers that the "reasonable time" that must be afforded to staff members discharging staff representational responsibilities is the time necessary and sufficient for the exercise of those responsibilities in accordance with the provisions of the Staff Regulations and Rules. It varies in each case, according to the scale of the representational tasks and their distribution over time. XIII. Her candidacy for the reclassified post not having been accepted, the Applicant found herself without employment. It is not contested that, as the holder of a permanent appointment, the Applicant was entitled to benefit from the provisions of staff rule 109.1(c). That paragraph provides that staff members whose posts have been abolished should be given preference in being retained within the Organization, subject to the availability of suitable posts in which their services can be effectively used. The Tribunal has referred repeatedly to the application of this provision, which is vital to the security of staff who, having acquired permanent status, must be presumed to meet the Organization's requirements regarding qualifications. In this connection, while efforts to find alternative employment cannot be unduly prolonged and the person concerned is required to cooperate fully in these efforts, staff rule 109.1 (c) requires that such efforts be conducted in good faith with a view to avoiding, to the greatest extent possible, a situation in which a staff member who has made a career within the Organization for a substantial period of his or her professional life is dismissed and forced to undergo belated and uncertain professional relocation. The procedure followed in this regard in the Applicant's case was a complex one. Following the rejection of her candidacy for the post which she had been occupying until its reclassification, she was informed, on 22 November 1991, that, unless another post could be found for her, her permanent contract would be terminated on 31 May 1992, under administrative instruction CF/AI/1986-10 of 26 November 1986. This instruction refers, inter alia, to the situation of UNICEF staff members whose posts are abolished. However, the Secretary-General informed the Applicant on 21 May 1992, that, pursuant to the recommendation of the Joint Appeals Board (JAB), he had decided that no action should be taken to ter-

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minate her appointment, so as to allow UNICEF to give her the benefit of staff rule 109.1 (c). Nevertheless, on 28 May 1992 (i.e. one week after the Secretary-General's communication), the Deputy Executive Director of UNICEF notified the Applicant that her appointment would be terminated on 31 August 1992, if placement efforts under staff rule 109.1(c) were unsuccessful. The Applicant requested administrative review of this decision and subsequently lodged an appeal with the JAB. The JAB recommended that "all action to separate [the Applicant] from service be suspended" pending a decision on the substance of the appeal. The Secretary-General accepted this recommendation. The JAB, in its report dated 13 October 1992, on the merits of the case, recommended that "UNICEF extend the [Applicant]'s service for a final 3-month period from the date of the Secretary-General's decision on this report and expend every effort on a priority basis to resolve the issues with the [Applicant]." On 12 November 1992, the Applicant was informed that the Secretary-General accepted the JAB's recommendation. Then, on 19 November 1992, the Deputy Executive Director of UNICEF informed the Applicant that if by 11 February 1993 no suitable post had been found, she would be separated from service. XIV. These various decisions gave rise to controversies between the parties, but the Tribunal does not deem it necessary to enter into them. The Tribunal merely has to address the question of whether staff rule 109. l(c) was correctly applied. In this regard, the Tribunal notes that the efforts of the Administration to find the Applicant alternative employment during the period of seven months, extended by a further three months following the decision of the Secretary-General pursuant to the recommendation of the JAB, should not be regarded as abnormal. As is the case with the failure of the Applicant's candidacy for the post which she wished to fill, the Tribunal does not have any formal evidence of discrimination against her in the process of applying staff rule 109.1(c). On the other hand, it appears that the failure of efforts to find alternative employment for the Applicant derived from the negative assessment of her performance in the absence of an arrangement regarding her obligations during the period July 1988-1990, as stated by the Tribunal in paragraph VIII above. The Tribunal concludes that the Applicant's complaints regarding alleged discrimination against her because of her union and staff representational activities are not substantiated by conclusive evidence. On the other hand, the procedure applied to her, under staff rule 109.1 (c), including her dismissal at the end of the period set by the decision of 19 November 1992, was vitiated by the failure to conclude, at the proper time, the arrangement provided for by administrative instruction ST/AI/293 and

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that, consequently, the rules laid down in chapter VIII of the Staff Rules and the procedures envisaged in that administrative instruction were not followed. XV. Accordingly, the Tribunal: 1. Decides to rescind the decision taken by the Secretary-General that led to the termination of the Applicant's permanent appointment, with effect from 11 February 1993 and that the Applicant should be reinstated as of that date. 2. Fixes the compensation to be paid to the Applicant at one year of her net base salary at the rate in effect on the date of her separation from service if the Secretary-General decides, within thirty days of the notification of the judgement, in the interest of the United Nations, not to reinstate the Applicant. 3. Decides that the Applicant should be paid the balance of the statutory termination indemnity to which she is entitled whenever the fixed-term appointment she may have with the United Nations expires. The Applicant's right to this termination indemnity shall cease if at that time or prior thereto she is reemployed as a permanent staff member. XVI. The Applicant has requested the amount of 4,000 dollars for costs incurred in pursuing the appeal. The Tribunal, having considered the Applicant's request and in accordance with its finding in paragraph XXIX of Judgement No. 237, Powell (1979), decides to reject it. (Signatures) Luis de POSADAS MONTERO

Hubert THIERRY

Vice-President, presiding

Member

Francis SPAIN Member

R. Maria VlCIEN- MlLBURN Executive Secretary

New York, 9 November 1994

Judgement No. 680 (Original: French) Case No. 734: Gulati

Against: The Secretary-General of the United Nations

Application of a staff member of the United Nations Children s Fund (UNICEF) against the decision to select another candidate for a post.

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The Joint Appeals Boardfound that the decision not to select the Applicant for the post in question had not violated his rights.—It recommended nevertheless that his candidature be given priority for a vacant G-7 post.—Recommendation accepted. The Tribunal recalls the circumstances in which the Applicant, recommended by the Appointment and Placement Committee as number one preference for a G-7 post, was not selected for the post, while another candidate, with number four preference, was appointed as she was already at that level and her post had been abolished.—The Tribunal recalls its position that the Administration has discretionary power in respect of selection of candidates; staff members merely have a right to impartial consideration of their candidature.—The decision could only be contested if the Applicant could establish that the Administration had been influenced by extraneous factors, such as prejudice, discrimination or an improper motive.—The Applicant has not claimed that this was the case.—The Tribunal notes that the selected candidate was already at the G-7 level and that her post had been abolished.—Her selection was in line with the priority which should be given under staff rule 109.1(a)(i) and under relevant UNICEF instructions to staff members whose posts have been abolished. Application rejected.—The Tribunal requests the Administration to give priority to the Applicant's candidature for a vacant G-7 post.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of: Mr. Luis de Posadas Montero, Vice-President, presiding; Mr. Mikuin Leliel Balanda; Mr. Mayer Gabay; Whereas, on 24 December 1992, Rajender Kumar Gulati, a staff member of the United Nations Children's Fund, hereinafter referred to as UNICEF, filed an application that did not fulfil all the formal requirements of article 7 of the Rules of the Tribunal; Whereas, at the request of the Applicant, the President of the Tribunal, with the consent of the Respondent, extended to 31 May 1993 the deadline for the filing of an application to the Tribunal; Whereas, on 12 May 1993, the Applicant, after making the necessary corrections, again filed an application, the pleas of which read, in part, as follows: "PLEAS (a) In arriving at the decision to appoint (...), the Representative, India Country Office, did not give due weightage to the selection process. (b) The compulsion stated by the Representative ... to accommodate the 'selected candidate' against the recommended candidate by the Appointment and Placement Committee (APC) far exceeded the policy requirement governed by UNICEF Headquarters administrative instruction No. CF/AI/1986-10 dated 26 November 1986 (.. .). (c) The process of natural justice was denied to the Appellant by bringing in irrelevant factors in the final decision to appoint. ..

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(d) The Appellant's legitimate right to lawfully compete with other candidates for career progression was denied." Whereas the Respondent filed his answer on 24 January 1994; Whereas the Applicant filed written observations on 1 July 1994; Whereas the facts in the case are as follows: The Applicant entered the service of UNICEF in New Delhi, India, on 29 December 1980 as Clerk/Typist, at the G-3 level, in the Personnel Services Section under a fixed-term appointment. Following a series of short-term appointments, he received a fixed-term appointment as Clerk/Typist on 1 June 1983. On 1 December 1983, the Applicant received a fixed-term appointment to a post of Personnel Assistant and on 1 June 1984, he was promoted to the G-4 level. On 1 December 1985, the Applicant received a permanent appointment. On 1 January 1987, he was promoted to the G-5 level and on 1 January 1990, he was promoted to the G-6 level. He is now serving in the Emergency Office for the former Yugoslavia, Zagreb, at the L-l level. On 10 April 1991, the UNICEF Representative sent to all staff members of the India Country Office a letter to which were attached guidelines announcing the implementation of a new staffing structure for 1992-1993 and the Placement Exercise scheduled to take place in the Office as a result. In line with these guidelines, all new, vacant and upgraded posts were to be advertised and staff members whose posts had been abolished were to be given priority in placement. On 28 June 1991, during this placement process, a vacancy was announced for a G-7 post of Senior Personnel Assistant. Forty-four candidates, including the Applicant, applied for the post. On 19 July 1991, the Selection Advisory Panel (SAP) reviewed the applications and unanimously recommended four candidates, in order of preference, with the Applicant as the number one preference. The Appointment and Placement Committee (APC) "reviewed and endorsed the recommendation of the Selection Advisory Panel that [the Applicant] be appointed to this post". The UNICEF Representative reviewed the SAP and APC recommendations and decided to appoint a candidate other than the Applicant who was the number four preference on the SAP list. The Representative noted that this candidate was already at the level of the post and that her own post had been abolished. On 2 August 1991, the Applicant wrote to the UNICEF Representative protesting his non-selection for the post and requesting her to review this decision or to appoint him to any other core G-7 post. He had meetings with the Representative on 2 August, 19 September and 30 October 1991. On 8 November 1991, the Applicant submitted a request for administrative review to the Executive Director at UNICEF headquarters in New York, requesting him, inter alia:

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"— To intervene and instruct the ICO [India Country Office] Management to appoint him against the post of Senior Personnel Assistant since HE IS THE ONLY CANDIDATE RECOMMENDED BY THE APPOINTMENT AND PLACEMENT COMMITTEE." On 21 January 1992, the Deputy Executive Director (Operations), UNICEF, replied to the Applicant. Her reply read, in part, as follows: "In the Representative's deliberations on this case, she reviewed fully both the SAP and the APC recommendations. She also personally reviewed the files of all other short-listed candidates. It should also be noted that the India Country Office was in the midst of a major reorganization and staff placement exercise. Consequently, all decisions by the Representative on appointments needed to be taken against that background. Therefore, the Representative's decision factored in the following: 1. During the 1992-1993 biennium budget, a number of posts in the India Country Office were abolished and many core posts were converted to project posts. 2. The selected candidate was a permanent staff member occupying a core post which was abolished as of 31 December 1991. She was among the candidates short-listed by SAP for appointment to the post in question. She was already at the G-7 level, the same level of the Senior Personnel Assistant post. 3. In accordance with the provisions [of administrative instruction] AI/1986-10 of 26 November 1986, the Organization was committed to make every reasonable effort to place core staff whose posts [had] been abolished into other suitable available posts. 4. In the India Country Office, staff holding core posts and whose posts were abolished, were, as a matter of priority, and on the basis of their qualifications, to be placed in other suitable core posts available at the same level. This also ensured that the number of core post holders would not exceed the total number of core posts available in the budget. Based on the above, the Representative decided that, on balance, the interests of the Organization would be best served by the appointment of the selected candidate. Based on the facts of this case, we consider that the Representative's decision was a proper exercise of her authority. The Organization does recognize and appreciate your contribution to UNICEF. While we understand your disappointment with the decision to select another candidate for the post of Senior Personnel Assistant, we maintain that it was taken properly and in accordance

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with the established guidelines of our appointment and placement review system." On 28 February 1992, the Applicant addressed a formal appeal to the Joint Appeals Board (JAB), which unanimously adopted its report on 25 September 1992. The JAB's considerations, finding and recommendations read, in part, as follows: "Considerations 23. After carefully examining the records that the Panel had before it, the Panel did not find any wrongdoing by the Administration or any impropriety in the decision not to select the Appellant to the post in question. The Panel however, felt that the Appellant was put into an unfortunate position as a result of the APC recommendation. In all likelihood he would have been selected for the post in question, but for the unforeseen development of another staff member having to be given priority as a result of the abolition of her post. Finding and recommendations 24. The Panel found that the decision not to select the Appellant to the post in question did not violate his rights, including his right to due process. 25. However, the Panel recommends that as the decision taken by the Representative put the Appellant into an unfortunate position, his candidature should be given priority for any vacancy at the G-7 level in his field of competence that might arise in UNICEF. The Panel makes no other recommendation in favour of the appeal." On 29 October 1992, the Director of Personnel transmitted to the Applicant a copy of the JAB report and informed him as follows: "The Secretary-General has examined your case in the light of the Board's report. He concurs with the Board's finding that the decision not to select you to the post in question did not violate your rights, including your right to due process. He has decided, however, in view of your 'very good performance', that you be given full consideration for future vacant G-7 posts in the India Country Office in your field of competence for which you are found to be qualified." On 12 May 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The APC unanimously recommended the Applicant as the only candidate suitable for appointment to the post in question.

Judgement No. 680

385

2. The absolute guarantee given to staff members whose posts had been abolished that they would be "accommodated" disregards the selection criteria contained in UNICEF headquarters administrative instruction No. 352 and is contrary to the procedures and provisions contained in UNICEF headquarters administrative instruction No. CF/AI/1986-10. 3. Many other core G-7 posts were vacant and could have been filled by the candidate selected for the post in question without denying the Applicant his legitimate opportunity for promotion. Whereas the Respondent's principal contentions are: 1. The selection of staff is within the discretionary power of the Secretary-General. Staff have the right to due consideration for promotion, which consideration was accorded to the Applicant. 2. The decision not to select the Applicant was not tainted by prejudice or discrimination or motivated by extraneous factors. The Tribunal, having deliberated from 17 October to 9 November 1994, now pronounces the following judgement: I. The Applicant began working at UNICEF/New Delhi on 29 December 1980 as Clerk/Typist at the G-3 level. He was then promoted to the G-4 level, as Personnel Assistant. On 6 December 1985, he received a permanent appointment. From then on, he was promoted successively to the G-5 level in 1987 and to the G-6 level, on 1 January 1990. On 10 April 1991, on the occasion of a general reorganization of the UNICEF India Country Office, all staff members were invited to submit their candidatures. A vacancy was announced for a G-7 post of Senior Personnel Assistant and 44 candidates, including the Applicant, applied for it. On 19 July 1991, the Selection Advisory Panel (SAP) reviewed the applications and unanimously recommended four candidates, in order of preference, with the Applicant as the number one preference. The Appointment and Placement Committee reviewed and endorsed the recommendation of SAP that the Applicant should be appointed to this post. However, the UNICEF Representative for India decided to appoint to the post a candidate who was the number four preference, in view of the fact that this candidate was already at the G-7 level and that her post had been abolished. The Applicant appealed to Headquarters against this decision by the India Country Office Representative, but without success. The reply was made to him that the contested decision had been taken in accordance with the relevant administrative instructions. The Joint Appeals Board (JAB) had recommended that the Secretary-General should maintain this decision. Nevertheless, the Board had recommended that the Applicant's

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candidature should be given priority for any vacancy at the G-7 level in his field of competence. II. The Applicant requests the Tribunal to rescind this decision. He contends that the decision to select another candidate merely because her post had been abolished does not constitute one of the selection criteria specified in the relevant administrative instructions. In addition, he seeks retroactive promotion to the G-7 level, but with no financial implications. III. The Respondent answers that the Secretary-General has discretionary power to select candidates for a given post and that staff members merely have the right to have their candidatures considered in accordance with the statutory provisions. The Respondent adds that the decision not to select the Applicant is not tainted by factors extraneous to the interests of the Organization. IV. As to the Applicant's request to the Tribunal, inviting it to verify that there were also other posts available at the G-7 level, the Tribunal considers that the information at its disposal is sufficient to enable it to pronounce judgement in the case under consideration. V. As to the merits, the Tribunal shares the view of the JAB, and reaffirms its previously stated position that the Administration has discretionary power in respect of the selection of candidates. In this matter staff members merely have a right to impartial consideration of their candidatures (cf. Judgements No. 312, Roberts (1983); No. 362, Williamson (1986); No. 586, Atefat (1992) and No. 630, Megzari (1993)). The Administration's decision could be contested only if the Applicant could establish that the Administration had been influenced in its decision by extraneous factors, such as prejudice, discrimination or an improper motive. The Tribunal notes that the Applicant has not claimed that this was the case. VI. The Tribunal notes further that the selected candidate was already at the G-7 level and that her post had been abolished. In accordance with the provisions of UNICEF headquarters administrative instruction CF/AI/1986-10 of 26 November 1986, which were applicable to the reorganization of the UNICEF India Country Office in 1991, priority is to be given to candidates whose posts have been abolished. The candidate whose post had been abolished was therefore rightly selected in accordance with staff rule 109.1(a)(i). The Tribunal thus concludes that the Administration has, in this instance, correctly applied the aforesaid guidelines. In the light of the foregoing, the application is without merit and should be rejected. VII. However, in view of the fact that the Applicant was at the head of the list and that his promotion to the G-7 level was delayed, the Tribunal, endorsing the recommendation of the JAB, requests the

Judgement No. 681

387

UNICEF Administration to give priority to the Applicant's candidature for any vacancy at the G-7 level in his field of competence. (Signatures) Luis de POSADAS MONTERO Vice-President, presiding

Mikuin Leliel BALANDA Member

Mayer GABAY Member

R. Maria VlCIEN-MlLBURN Executive Secretary

New York, 9 November 1994

Judgement No. 681 (Original: English) Case No. 742: Maqari

Against:

The CommissionerGeneral of the United Nations Relief and Works Agency for Palestine Refugees in the Near East

Application of a former staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNR WA)for rescission of decision to terminate her for misconduct, for reinstatement, for compensation for the prejudice suffered and for costs. The Joint Appeals Board found that the report of the Board of Inquiry set up to investigate the case had not established the involvement of the Applicant in the acts with which she was charged and that the motives of the decision invoked by the Administration were not convincing.—It recommended a review of the decision with a view to Applicant's reinstatement.—Recommendation rejected. Analysis of the evidence against the Applicant.—The Tribunal notes that the actual finding of the Board of Inquiry was that the Applicant was untruthful and not that she was guilty of charges against her.—It considers that the evidence is not sufficient to establish a finding that the Applicant was involved.—Respondent's contention that, in view of the powers vested in the Commissioner-General under area staff regulation 9.1 to terminate a staff member's services in the interest of UNRWA, it was sufficient for the Agency to believe that the Applicant was involved in the alleged irregularities and to have lost confidence in her.—The Tribunal agrees that, under this staff regulation, the decision to terminate an appointment is within the discretionary power of the Commissioner-General who must exercise his discretion without improper motives and in accordance with proper procedures.—The Tribunal finds in the Respondent's contention the unacceptable proposition that the Applicant is guilty until proven innocent.—In the Tribunal's view, the Applicant was dismissed without regard to the fundamental requirements of due process; the Respondent acted improperly in dismissing the Applicant for matters which had not been estab-

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lished.—On the other hand the Tribunal is not unmindful of the genuine concerns of the Respondent, given the generally unsatisfactory picture of the Applicant revealed by the entire episode. Award of compensation equal to two years of base salary at the time of separation.—All other pleas rejected, including requests for oral hearings and for costs.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Hubert Thierry; Mr. Francis Spain; Whereas, on 11 July 1993, Ibtisam Musa Maqari, a former staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (hereinafter referred to as UNRWA), filed an application, containing, inter alia, the following pleas, asking the Tribunal: '' b. [To rescind] the decision of the Field Office Director to terminate the Applicant for misconduct.... c. [To rescind] the Commissioner General's decision ... rejecting the recommendation of the JAB [Joint Appeals Board]... d. [To reinstate] the Applicant to duty, and [to consider] her cessation from work on 7 September 1991 [onwards], as special leave with full pay. e. [To compensate] the Applicant for the injury, intimidation, humiliation and hardship and obstruction of justice estimated at US$ 40,000. / [To pay] secretarial and legal counselling fees estimated at US$ 3,000." Whereas the Respondent filed his answer on 12 November 1993; Whereas the Applicant filed written observations on 10 February 1994; Whereas the Applicant submitted an additional statement on 6 October 1994; Whereas the facts in the case are as follows: The Applicant entered the service of UNRWA on 2 July 1989, as a Staff Nurse at the Muzeireeb Health Point, South Area, on a temporary indefinite appointment, which was confirmed on 28 November 1990. With effect from 7 September 1991, the Applicant was suspended without pay, and on 25 November 1991, her service with UNRWA was terminated for misconduct, pursuant to area staff regulation 9.1.

Judgement No. 681

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On 22 August 1991, the Area Officer, South Area, informed the Field Personnel Officer, Syrian Arab Republic (SAR), that two Muzeireeb Health Point staff members, the Applicant and a Cleaner, had been arrested on 21 August 1991 and were charged with "issuing false coupons for distributing rations to pregnant [women] and children and sold them." On 2 September 1991, the Area Officer, South Area, submitted a written report with statements from the two staff members, the Medical Officer of Muzeireeb Health Point, and a copy of the proces-verbal of the criminal investigation by the Syrian authorities. In her statement, the Applicant reported that she had been questioned by Syrian officials on 21 August 1991, and shown UNRWA ration cards. According to her report, she appeared before the prosecution and judge and was asked whether the handwriting on the cards was hers and whether they had been filled in correctly. She responded that the handwriting was not hers and that the cards were improperly filled in. She was then dismissed as being innocent. The record indicates that testimony was given by others, including a patient at the clinic and her husband, who confessed that they had sold ration cards and said that the Applicant was involved in an arrangement whereby she provided them with ration cards for sale and shared in the profits. On 4 September 1991, the Director of UNRWA Affairs, SAR, constituted a Board of Inquiry, composed of the Field Health Officer, SAR, the Area Officer, Damascus Area, and the Deputy Field Supply & Transport Officer, SAR. He informed them that the two staff members had been detained on 21 August, on suspicion of having falsified and sold UNRWA ration coupons, which were tendered to two merchants who had reported the matter to the authorities. He asked the Board of Inquiry "to investigate whether the two staff members ... have committed any acts, which are incompatible with their status as UNRWA staff members." On 5 September 1991, the Field Personnel Officer, UNRWA— SAR, informed the Applicant that she would be suspended from work without pay pending investigation, with effect from 7 September 1991. On 2 October 1991, the Field Nursing Officer, SAR, informed the Field Health Officer, SAR, that during a field visit to Muzeireeb Health Point, the Medical Officer in Charge conveyed to her "his anxiety because he was threatened [with] murder by [the Applicant's] relatives if any disciplinary action would be taken against her." On 24 October 1991, the Applicant wrote to the Director of UNRWA Affairs, SAR, that the accusation against her had been made by one of her colleagues, who had herself stolen the ration cards, in collaboration with a medical orderly. She complained that her "dismissal" had

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been unjust and was "designed to replace me by the cousin of [one of the doctors in the clinic]" who she claimed had been appointed in her place. She asked for a "re-investigation" under his supervision as she was "completely innocent of this accusation". On 5 November 1991, the Board of Inquiry reported its findings to the Director of UNRWA Affairs, SAR. After reviewing the testimony heard, including that of the Applicant, the Board found as follows: "The Board of Inquiry observed the following: 1. [The Applicant] did not tell the truth: a. She denied that she knows the location of [the patient's] house contrary to her written note on [the patient's] Ante Natal card (...) about a Home Visit... b. She stated that on 30.7.1991 she had injected [the patient with] inferon while there is no injection slip dated on 30.7.1991 except the one the date of which has been changed from 20 to 30.7.91 (...). Comparison of the number of injections and needles in the register and the number and kind of injection slips, at the two dates confirmfs] that the injection was given on 20.7.1991. c. [Name deleted] stated that he did n o t . . . see [the patient] that day [30.7.1991], contrary to [the Applicant's] statement. 2. A relative of [the Applicant] has paid LS [Syrian pounds] 20,000 to the Criminal Police. This raises a question: If she is innocent, why this pay? 3. [The patient] and her husband have confessed to the Criminal Police that they have sold the falsified Authorization forms. Why should they have accused [the Applicant] of having delivered these forms to them if it was not true?" On 14 December 1991, the Applicant wrote to the Director of UNRWA Affairs, SAR, stating that one of the patients had been found guilty of stealing ration cards from the clinic. She further stated that the Board of Inquiry had "found nothing against me in this sense, and found me innocent of taking any part in stealing the cards, though they found me responsible for negligence." She asked that her case be reconsidered, as the investigation was "not so fair". She claimed that a doctor in the clinic had appointed his cousin in her place. She also noted that she had not been informed of the final decision and had not been asked to return to work. In a letter dated 25 November 1991, the Director of UNRWA Affairs, SAR, informed the Applicant as follows: ". . . the Board of Inquiry ... to investigate into the incident which took place in Muzeireeb Health Centre has found you guilty of having falsified UNRWA ration coupons and having sold them.

Judgement No. 681

391

By doing so you have proven to be unreliable and you have acted dishonestly in your duty. You have threatened your supervisor. It has, therefore, been decided to terminate your service for misconduct in the interest of the Agency under area staff regulation 9.1." On 11 January 1992, the Applicant submitted a request for reinstatement, to the Director of UNRWA Affairs, SAR. On 2 February 1992, the Director of UNRWA Affairs, SAR, replied: "I have reviewed your case and regret that nothing hi your letter convinces me to reconsider the decision to terminate you, which is hereby confirmed." On 14 January 1992, the Applicant lodged an appeal with the Joint Appeals Board (JAB), requesting, inter alia, a copy of the proces-verbal and the minutes of the report of the Board of Inquiry. On 23 February 1992, the Field Administration Officer, SAR, sent to the Applicant a copy of the report of the Board of Inquiry and a copy of the proces-verbal prepared by the Criminal Security Division of the Syrian Police. He noted that "the identity of certain persons mentioned in these reports is not revealed," explaining that "to do otherwise would put the security of these persons at risk." On 10 May 1993, the JAB forwarded its report to the Officerin-Charge, Headquarters, UNRWA. Its evaluation and recommendation read as follows: "IV. Evaluation and Judgement a—The findings of the Board of Inquiry do not establish the involvement of the Appellant in the act of ration-coupons forgery and selling. It only reveals untrue and contradictory statements made by the Appellant. b—The Administration's decision to terminate the Appellant's services with the Agency were tainted by 'loss of confidence' in her, based on having 'valid reasons' to terminate her services in the interest of the Agency. However, the Board cannot conceive these valid reasons the result of which were the termination of the Appellant's service with the Agency together with the consequential social and professional inconveniences caused to her. c—The decision to terminate the services of the Appellant was triggered by the reporting of ration-coupons forgery and selling from outside the System. Such improprieties the System had failed, until that time, to detect. V. Recommendation In view of the foregoing, the Board unanimously makes its recommendation that the Administration's decision of 25 November

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1991 in respect of the Appellant be reviewed with a view to reinstating the Appellant in her previous post as Staff Nurse or in any other post commensurate with her qualifications and in a manner that is not disadvantageous to her." In a letter dated 7 June 1993, the Officer-in-Charge, Headquarters, transmitted a copy of the JAB report to the Applicant. He noted that "there were valid and objective reasons for the Administration to lose confidence in you" and informed her that he was unable to accept the recommendation that she be reinstated. On 11 July 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Applicant is innocent of the charges against her, and was not found otherwise by the Syrian authorities or by the UNRWA Board of Inquiry. As there is no foundation for the charges of misconduct, the termination is null and void. 2. The decision to terminate the services of the Applicant was motivated by prejudice and discrimination against her. Whereas the Respondent's principal contentions are: 1. The Commissioner-General has the authority under area staff regulation 9.1 to terminate the appointment of a staff member in the interest of the Agency. The termination of the Applicant's appointment was within the discretionary authority of the Commissioner-General. 2. The decision to terminate the Applicant's appointment was premised on her conduct and was not improperly motivated. There is no evidence or indication of bias or prejudice. The Tribunal, having deliberated from 21 October to 11 November 1994, now pronounces the following judgement: I. The main evidence against the Applicant conies from a patient at the clinic where the Applicant worked and this patient's husband. They disclosed to the police an arrangement whereby the Applicant allegedly supplied the patient with forged ration cards for sale to Palestinian refugees, with the profits to be shared equally by the two women. The patient's husband said that the Applicant came to his home on 18 August 1991 and gave his wife seven cards (or twenty-eight coupons) and, as usual, he sold them. This and other related testimony of the patient and her husband was the only evidence relating to the Applicant to be disclosed in the proces-verbal furnished by the police. The Board of Inquiry concluded that the Applicant did not tell the truth on a number of issues: denying that she knew the location of the patient's house, despite her written notes on the patient's ante-natal card and child record; stating that she had injected the patient on 30 July 1991,

Judgement No. 681

393

when the Board found that the date on the injection slip had been changed from 20 July 1991 to 30 July 1991, and suggesting that the patient was not seen by anybody to have fainted. The Board of Inquiry also made other findings, which it obviously felt were of importance, such as the fact that the nursing authorization forms were kept by the Applicant in the mother and child Health Room; that a relative of the Applicant had paid 20,000 Syrian pounds to the Syrian police, the motivation for which the Board questions if the Applicant were innocent; that the patient involved and her husband, having themselves confessed, implicated the Applicant. The Board asks why they should have accused the Applicant falsely. II. The case against the Applicant on the issue of fraudulently handling the cards, therefore, comprises the evidence of the one patient and her husband and the Applicant's own somewhat dishonest response to questions asked during her arrest and investigation. Is this a sufficient case on which a conclusion could be drawn with any degree of certainty that the Applicant was implicated? The Board of Inquiry implies that the Applicant was not only untruthful but had in fact delivered the ration cards to the patient and her husband for illegal sale. The actual finding of the Board, however, is merely that the Applicant was untruthful, not that she was guilty of the charges against her. Nor is there any finding by Syrian authorities against the Applicant. The record indicates that, in fact, she was not even charged. III. The Tribunal's view is that the evidence is not sufficient to establish a finding that the Applicant was involved. Evidence of co-accused must always be looked at sceptically. It can never be regarded as being as reliable as that of a wholly disinterested party, as there could be many reasons why persons who are themselves accused would seek to implicate others. However, their evidence must be looked at in conjunction with the Applicant's own responses. Again there could be reasons other than guilt for the Applicant's untruthful responses, such as fear on her part in the face of accusations. The payment of 20,000 Syrian pounds, whether with or without the Applicant's knowledge, and whether or not it was subsequently repaid, can scarcely be regarded as definitive evidence. It appears that the money was paid when she was incarcerated in order to effect her release. IV. The Applicant goes further than simply denying involvement, offering an alibi for 18 August 1991, when it seems she was actually at a training session in Damascus with other staff members. The Agency dismisses this evidence as unimportant. The real issue, according to the Agency, is whether it had valid reasons to terminate the Applicant's services in the interest of the Agency under area staff regulation 9.1. The

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Agency adopts the stance that it is sufficient for the Agency to believe, on the balance of probabilities, that the Applicant was involved in irregular practices and that the Agency had legitimately lost confidence in her. By implication, the Agency, therefore, appears to accept that the specific allegations made against the Applicant cannot be substantiated, certainly not with any degree of confidence. This, in the Tribunal's view, is a correct assessment of the evidence, which is clearly inadequate to make a positive finding. V. If the central allegation against the Applicant, namely her involvement in illicit distribution of coupons, could not be proved, what then of the Agency's action in terminating her employment, pursuant to area staff regulation 9.1? This regulation provides, "The Commissioner-General may at any time terminate the appointment of any staff member if, in his opinion, such action would be in the interest of the Agency." A decision to terminate an appointment is, of course, within the discretionary power of the Commissioner-General, who must exercise his discretion without improper motives, and in accordance with proper procedures. The Respondent argues that the decision to terminate the Applicant's appointment was premised on the Applicant's conduct, which caused the Agency to lose confidence in her as an employee. The Respondent says that the decision was based primarily on the Applicant's response to the charges against her, but notes also that her prior work record was poor. He contends that the Board of Inquiry finding, that the Applicant was untruthful, justified the decision even without a finding that she was guilty of the charges. The Respondent notes that "although she was not formally tried on these charges, there is no substantive evidence to support her claim that she was found to be innocent of those charges", suggesting the unacceptable proposition that she is guilty until proven innocent. VI. The Tribunal does not accept this argument. A specific charge was made against the Applicant and the Respondent, in dismissing her, explicitly based his decision on the grounds that the Board of Inquiry had "found [her] guilty of having falsified UNRWA return coupons and having sold them." Although now conceding that the Board of Inquiry did not find the Applicant guilty, the Respondent persists in his argument that she really was guilty. Alternatively, he seeks other justifications for dismissing her, without regard to the fundamental requirements of due process. The Applicant should have been given the opportunity of dealing with these matters before her employment was terminated because of them. She should have been able to answer the allegations that her performance was poor or that she had threatened her supervisor if they were to be used as a basis for termination.

Judgement No. 682

395

The Tribunal's view is that the Respondent acted improperly in purporting to dismiss the Applicant for matters which had not been established, or on which she was not afforded the opportunity to answer. The Tribunal, however, is not unmindful of the genuine concerns of the Respondent, given the generally unsatisfactory picture of the Applicant revealed by this entire episode. Nevertheless, in taking remedial action, the Respondent must act with regard for due process. VII. For the reasons set forth above, the Tribunal orders the Respondent to pay to the Applicant compensation in an amount equal to two years of her net base salary as of the date of her separation from service. VIII. The Tribunal makes no further order. All other pleas are rejected, including the Applicant's requests for an oral hearing and for costs. (Signatures) Samar SEN

Hubert THIERRY

President

Member

Francis SPAIN

R. Maria VICIEN-MILBURN

Member New York, 11 November 1994

Executive Secretary

Judgement No. 682 (Original: English) Case No. 751: Dabit

Against: The CommissionerGeneral of the United Nations Relief and Works Agency for Palestine Refugees in the Near East

Application of aformer staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)for compensationfor loss of earnings resulting from his dismissal, for clearing his record by allowing him to resign orfor reinstatement. The Joint Appeals Board found that the decision to terminate the Applicant had been taken within the applicable rules and regulations and should be upheld. Review of the circumstances leading to the Applicant's dismissal and of the Applicant's work history which was not a happy one.—The Applicant's letter of appointment stipulated that the appointment could be terminated at any time in accordance with the Staff Regula-

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tions and Rules, which does not give the Respondent an unfettered right to dismiss.—The Respondent's power under area staff regulation 9.1 to terminate the appointment in the interest of the Agency must be exercised without improper motivation or abuse.—The Tribunal finds no evidence that the decision was procedurally defective or improperly motivated and considers that the termination of the Applicant's appointment was a valid exercise of the Respondent's authority.—The Tribunal states that the fact that the Joint Appeals Board did not discuss every piece of evidence or every submission does not invalidate its findings. Application rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Hubert Thierry; Mr. Francis Spain; Whereas, on 13 May 1993, Costandi Awad Dabit, a former staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (hereinafter referred to as UNRWA), filed an application that did not fulfil all the formal requirements of article 7 of the Rules of the Tribunal; Whereas, on 24 August 1993, the Applicant, after making the necessary corrections, again filed an application requesting the Tribunal, inter alia: "... to compensate him for the loss of earnings [due to] future unemployment, ... that he be compensated for the loss of opportunity... due to unjustified dismissal. Compensation & Damages Loss of earnings (1990-1993) Expected earnings due to promotion Add (at discretion of the Tribunal) Loss of work opportunities cause by unfair dismissal Loss of earnings due to future unemployment

J.D. 9590.00 J.D. 21950.00 J.D. 8260.00 J.D. 39800.00

J.D. J.D. J.D.

... that his record be amended [accordingly] ... to clear him of the charges, and to allow him to resign rather than suffer dismissal [and that] as an alternative ... [the] Tribunal overturn the decision of the Joint Appeals Board and reinstate him in his former post." Whereas the Respondent filed his answer on 21 January 1994;

Judgement No. 682

397

Whereas the Applicant submitted an additional document on 1 October 1994; Whereas the facts in the case are as follows: The Applicant entered the service of UNRWA on 30 April 1987, as a Senior Clerk at the Kalandia Vocational Training Centre, at the grade 7, step 1 level, on a temporary indefinite appointment, subject to a one-year probationary period. The Applicant was transferred to the post of Senior Clerk in the Administrative Services Division of the Jerusalem Field Office, with effect from 12 April 1988. On 20 February 1990, the Applicant's services were terminated, pursuant to staff rule 109.1. In a letter dated 5 January 1988, the Field Personnel Officer, West Bank, informed the Applicant that complaints had been received concerning his work performance and official conduct. Specifically, he noted that the Applicant had "failed to pay a bill to a newspaper" and "did not prepare receipt vouchers for beds resulting in the loss of NIS [New Shekels] 77.30." The Field Personnel Officer noted that the letter would be considered a "written censure" to be placed in his personnel file, and instructed that NIS 77.30 be deducted from the Applicant's salary. On 23 January 1988, the Field Finance Officer wrote to the Field Personnel Officer in reference to the letter of censure which had been sent to the Applicant. In his memorandum, he noted, "[f]rom the documentation available to me the payment [of the newspaper bill] was not delayed", and with respect to the receipt vouchers "[the Applicant] assured me that he did not receive the NIS 77.30 ... and, therefore, could... not have issued a receipt voucher." He suggested that the deduction of this amount from the Applicant's salary was "not justified" and recommended that the letter of censure be withdrawn "as it is not based on enough evidence to justify such an action." On 9 February 1988, the Field Personnel Officer notified the Applicant that he had been selected to fill the post of Senior Clerk in the Administrative Services Division of the Jerusalem Field Office. With effect from 12 April 1988, he was transferred to this post, at the same grade, with a six month probationary period. On 28 July 1988, the Applicant was injured in a traffic accident and was absent from work on medical leave until 1 January 1989. On 11 April 1989, the Field Administration Officer met with the Applicant to discuss the concerns raised in a draft confidential letter, which he gave to the Applicant, informing him that he could not be confirmed in his post as Senior Clerk because his work was not up to standard. In particular, he noted that the Applicant was "twenty minutes late to work almost every day, in addition to reading newspapers and magazines during office hours", and that he did not cooperate with his colleagues. In a further letter, dated 26 April 1989, the Field Administration Officer in-

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formed the Applicant that his confirmation would be considered after three months, upon receipt of a performance evaluation report. In September 1989, the Applicant's performance was evaluated by his supervisor, who gave him an overall rating of "2", i.e. "a staff member who maintains only a minimum standard of efficiency." In a letter dated 18 September 1989, the Field Administration Officer informed the Applicant that in view of his unsatisfactory work performance, his annual increment and confirmation in his post would be deferred for three months. He noted that his letter was a "final warning" and that further complaints about the Applicant's work performance would compel the Agency to take action, which might include "the imposition of disciplinary measures leading to your separation from the Agency's service." In a memorandum dated 22 December 1989, the Administrative Services Officer, West Bank, informed the Field Administration Officer, West Bank, that the Applicant's performance had shown "a marked improvement" and recommended that he be confirmed in the post of Senior Clerk and promoted to the grade 8 level. In a performance evaluation report dated 17 January 1990, the Applicant was given, by his supervisor, an overall rating of "3", i.e. "a staff member who maintains a good standard of efficiency". In signing the report on 18 February 1990, the Field Administration Officer noted his disagreement with this rating and referred to a memorandum, dated 9 February 1990, in which the Administrative Services Officer had informed him that another staff member was doing the Applicant's work, in addition to his own. According to a Note for the record, prepared by the Field Administration Officer on 17 February 1990, on 16 February, an incident took place in the office involving the photocopying of external vacancy notices. The Applicant refused to undertake the photocopying and distribution of the announcements, on the grounds that it was not his job. He was told that he could be dismissed for insubordination and he was asked to leave the office, which he did. In a letter dated 19 February 1990, to the Field Administration Officer, the Applicant referred to prior communications regarding his job description and noted that most of what he did fell under the category of "such other duties as may be assigned," depriving him of his right to perform his official duties. In a letter dated 20 February 1990, to the Applicant, the Director of UNRWA Operations, after listing the concerns which had been expressed regarding the Applicant's performance, including the incident of 16 February, concluded as follows: "Based upon all the above, and additionally, a less than satisfactory periodic report, I regret to inform you that your service with the Agency is hereby terminated effective close of business on 20 February 1990 in the interests of the Agency under staff rule 109.1..."

Judgement No. 682

399

In a letter dated 26 February 1990, to the Director of UNRWA Operations, the Applicant gave a different version of his record, including the incident of 16 February. He stated that the terms of his letter of appointment had not been observed and that he had been "delegated to perform less dignified work not provided for in the job description of my post." He requested that the decision to terminate his services be reviewed. In a reply dated 3 March 1990, the Director of UNRWA Operations confirmed the decision. On 17 March 1990, the Applicant lodged an appeal with the Joint Appeals Board (JAB). On 21 November 1990, the JAB adopted its report. Its conclusion reads as follows: "The Board notes the provisions of staff rule 9.1 under which the Appellant's services were terminated and unanimously agreed that the Agency's decision to terminate the services of the Appellant was in order and in compliance with Staff Rules and Regulations, as well as with the terms and conditions of the Appellant's letter of appointment." In a letter dated 18 December 1990, to the Commissioner General, the Applicant noted that the composition of the JAB which considered his case had been altered without notification to him. On 17 August 1992, the Director of Personnel, UNRWA, informed the Applicant that a new JAB would be constituted to consider his case. The JAB met between 7 and 9 December 1992. Its findings and recommendation read as follows: "III. BOARD FINDINGS, .. . The Administration's decision of terminating the services of the Appellant as per its decision of 20 February 1990 had been utterly taken within the applicable Area Staff Rules and Regulations and the terms of the Appellant's letter of appointment. IV. RECOMMENDATION 27. In view of the foregoing, the Board unanimously makes its recommendations that: (a) The Administration's decision of 20 February 1990 be upheld, and (b) The case be dismissed." On 5 February 1993, the Commissioner General transmitted the JAB report to the Applicant and informed him, inter alia, as follows: "... As you can see, the Board has unanimously recommended that the Administration's decision of 20 February 1990 to terminate your appointment be upheld and that your appeal be dismissed. I accept this recommendation and your appeal therefore stands dismissed."

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On 13 May 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The decision to terminate the Applicant's employment under staff rule 109.1 was arbitrary. All disciplinary measures taken against the Applicant were vindictive. He committed no offence that would justify the termination of his services. 2. The JAB neglected to take into consideration documents submitted by the Applicant and ignored the Applicant's version of events, relying on the facts provided by the Respondent. The JAB's consideration of the case was therefore biased. Whereas the Respondent's principal contention is: The decision to terminate the Applicant's employment was a valid exercise of the Respondent's authority under area staff regulation 9.1. The decision was not improperly motivated. The Tribunal, having deliberated from 21 October to 11 November 1994, now pronounces the following judgement: I. The Applicant contends that the decision to dismiss him was taken arbitrarily and in the absence of any offence on his part. He says that all disciplinary measures taken against him are unfounded. The Applicant's work history is not a happy one. He was first engaged in 1987 and by January 1988, he had received a letter of censure. However, this letter was questioned by the Field Finance Officer, who praised the Applicant for his work ability. This assessment was, in turn, criticized by the Principal at the Kalandia Vocational Training Centre. The Applicant's career took an upward turn when, in a memorandum dated 22 December 1989, the Administrative Services Officer, West Bank, was able to note an improvement in the Applicant's work. He recommended that the Applicant's evaluation be reconsidered and that he be promoted. On 16 February 1990, a disputed incident occurred. The Administration's version is that the Applicant refused to carry out a specific task, the Applicant's explanation being that as he could not do the task properly, he asked the Field Administration Officer's secretary to do it. Subsequent to this incident, the Applicant received his notice of termination. II. The Respondent refers to a conference with the Applicant in April 1989, primarily to discuss his work performance and his standards of conduct, particularly his lack of punctuality, his reading of newspapers and magazines during office hours and the lack of cooperation with his colleagues. According to the record, a draft confidential letter was unofficially delivered by the Field Administration Officer to the Applicant at

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the meeting. The Applicant's performance was to be reviewed in three months, upon receipt of another performance evaluation report. The performance evaluation report of 13 September 1989 showed that the Applicant's judgement and other personal factors were below standard as were his industry, quality of output and punctuality. He was therefore given a final warning in relation to work performance. The memorandum of 22 December 1989 noted an improvement in the Applicant's performance. However, the Respondent says that, in the performance evaluation report of 17 January 1990, while the Administrative Services Officer noted an improvement in work performance and rated the Applicant's performance and conduct as satisfactory, the Applicant's Principal, who signed this report on 18 February 1990, disagreed with these findings. He stated that subsequent events had overtaken the ratings. These events were, according to the Administrative Services Officer, the discovery that the work of the Applicant was being done by another person and the incident which occurred on 16 February 1990. III. Although the Agency had been unhappy with the Applicant before February 1990 and the Applicant was himself unhappy in his work and uncertain about the work that he was to perform, the turning point seems to have been the incident of 16 February. There is a conflict in the accounts of what occurred. According to the Applicant, while carrying out photocopying work, he found the machine to be faulty. The Administrative Services Officer told him that this work was that of the Field Administration Officer's secretary. The secretary ordered the Applicant to carry out the work himself and directed him to a different machine. His response was that he had other things to do. He was then told by the Field Administration Officer to submit his resignation. The Respondent's description of the incident is quite different. He says that the Applicant was requested by his principal supervisor to arrange for photocopying and distribution of material, the procedure having been arranged several weeks previously. The Applicant refused to carry out this work. When ordered to do so by the Field Administration Officer, he, in the presence of other staff members, refused. Even if the Applicant had been subjected to contradictory orders, as he claims, and even if he had been in doubt as to what exactly his duties were, surely he could reasonably have been expected to do what the Field Administration Officer told him to do, even if the message was communicated through the secretary. From the history of the Applicant's work with the Agency, up to and including the incident in February 1990, there emerges no impression of bias or prejudice. There certainly was annoyance on the part of the Field

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Administration Officer. Even the Administrative Services Officer, who wrote the memorandum of December 1989, commending the improvement in the Applicant's work, wrote in the memorandum of 9 February 1990, that, for the previous 15 months, another staff member had been carrying out the Applicant's work as well as his own. These were the circumstances in which the Applicant was dismissed. What of the Respondent's action in dismissing him? IV. The Applicant's letter of appointment provided that "This appointment may be terminated at any time in accordance with the Staff Regulations and Staff Rules". This, of course, does not give the Respondent an unfettered right to dismiss. The termination was made pursuant to area staff regulation 9.1 which provides, "The Commissioner-General may at any time terminate the appointment of any staff member, if, in his opinion, such action would be in the interest of the Agency." The Respondent's power under the regulation must be exercised without improper motivation or abuse. The question, therefore, is whether there is evidence that the decision was procedurally defective or improperly motivated. The thrust of the evidence is that, although the Applicant's work performance was less than satisfactory for, at least, a good part of his period of service, efforts were made to maintain him in the Agency. Both the Field Administration Officer and the Administrative Services Officer, at different times, were positive in their actions towards the Applicant. The Tribunal therefore finds, based on this evidence, that the decision to terminate the Applicant's appointment was a valid exercise of the Respondent's authority and should be upheld. V. Finally, in relation to the Applicant's criticism of the Joint Appeals Board, the fact that the Board's report or recommendation does not discuss every piece of evidence or every submission does not invalidate its findings. VI. For the foregoing reasons, the application is rejected in its entirety.

(Signatures)

Samar SEN

Hubert THIERRY

President

Member

Francis SPAIN

R. Maria VICIEN-MILBURN

Member

Executive Secretary

New York, 11 November 1994

Judgement No. 683

Judgement No. 683

403

(Original: English) Case No. 747: Khalil

Against: The CommissionerGeneral of the United Nations Relief and Works Agency for Palestine Refugees in the Near East

Application of a former staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)for reinstatement or, failing that, for compensation and for a letter clearing him of all accusations. The Joint Appeals Board found that the decision to terminate the Applicant had been taken in doubtful circumstances and recommended that UNRWA should implement its earlier decision to transfer the Applicant to another post.—Recommendation rejected. Consideration of the Applicant's and of the Respondent's versions of the facts.—The Tribunal accepts the account of the enquiry which was carried out on the Applicant's alleged misconduct and which led to the first decision to suspend him and to transfer him thereafter to another post.—It also accepts that at the time of that decision the Administration did not know of the incident which took place the same day and which led subsequently to the decision of dismissal.—While the Tribunal concludes that the Respondent's action in dismissing the Applicant was fully justified, it is troubled by the fact that the Applicant, while he received the notification of the findings against him, had not been formally charged.—He is therefore entitled to compensation Award of compensation of three months net base salary at the time of separation.—All other pleas rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Hubert Thierry; Mr. Francis Spain; Whereas, on 20 December 1992 and again on 22 April 1993, Rimon Farah Elias Khalil, a former staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (hereinafter referred to as UNRWA), filed an application that did not fulfil all the formal requirements of article 7 of the Rules of the Tribunal; Whereas, on 3 August 1993, the Applicant, after making the necessary corrections, again filed an application requesting from the Tribunal that: "1. I be reinstated in the employment of UNRWA in a suitable job and the payment of my salaries from the date of my separation to that of reemployment.

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2. Failing my reemployment,... that payment of a compensation be made to me which should be: i. Equal to my salary and benefits from the date of my separation to the date of the decision of your honourable Tribunal and ii. [To obtain] a letter from UNRWA which can clear me of all implied accusations of dishonesty ... by UNRWA." Whereas the Respondent filed his answer on 11 January 1994; Whereas the Applicant filed written observations on 11 May 1994; Whereas the facts in the case are as follows: The Applicant entered the service of UNRWA on 1 December 1981, as a Distributor with the Jerusalem Distribution Team, at the grade 1 level. On 3 November 1989, the Applicant was suspended without pay. His appointment was subsequently terminated, pursuant to area staff regulation 9.1, with effect from 11 November 1989. On 5 May 1989, the Commissioner-General directed that an audit of supply and warehousing operations be undertaken in the West Bank. This operational audit was carried out from 16 May to 15 June 1989. It included two surprise visits to the Jerusalem Area stores. In a "strictly confidential" memorandum, dated 21 June 1989, to the Director of UNRWA Operations, West Bank, the Auditor reported signs indicating "that pilfering or malpractice may be taking place". He suggested the establishment of "a Board of Inquiry to closely investigate the distribution operations at the Jerusalem Area stores." A Board of Inquiry was established, composed of the Field Supply and Transport Officer, the Deputy Field Relief and Social Services Officer, a Legal Officer, and an Administrative Assistant as Secretary. The Board commenced work on 23 August 1989. It adopted its report on 9 September 1989, having conducted interviews with the Distribution Team Leader, the Team Checker, the Distributors, including the Applicant, and many others involved in the Jerusalem Area distribution. The Board concluded that five staff members, including the Applicant, were guilty of "serious misconduct insofar as they have been directly involved in the intentional misappropriation of commodities" and three staff members were guilty of "misconduct insofar as they committed serious dereliction of duty." According to the Applicant, on 15 October 1989, his team was told to discontinue its distribution functions. On 1 November, they were told to resume their distribution functions. On that day, the Applicant and his Distribution Team were involved in an incident in the village of Biddo. In a report dated 2 November 1989, the Sub-Area Officer, Jericho, stated that, in response to a call he received on 1 November 1989, from a Biddo resident, he had gone to Biddo. He found 200 people surrounding the

Judgement No. 683

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UNRWA Distribution Team and its truck. They allowed the truck to leave, on condition that they could send a delegation to the UNRWA office to brief senior staff and "put an end to the Team's irregularities." Several witnesses to the incident subsequently testified, on 2 November and on 6 November, that commodities were being sold by the Distribution Team. On 9 November 1989, 12 residents of Biddo signed a statement that they "do not agree that the distribution team who committed the embezzlement process on 1 November 1989 return to our village once more under any circumstances ..." On 2 November 1989, the Director of UNRWA Operations, West Bank, informed the Applicant: "... as the result of irregularities discovered by an audit and a board of inquiry into distribution of commodities with which you were involved, the Agency has decided, as a disciplinary measure, to suspend you without pay for a period of 30 days with effect from 3 November 1989 and upon completion of this suspension without pay to reassign you to the post of Sanitation Labourer, grade 01, in Jalazone Camp." On 11 November 1989, the Director of UNRWA Operations wrote to the Applicant again, as follows: "... the investigation of your involvement into irregularities in the distribution of commodities has been completed and as a result it has been decided to terminate your appointment in the interests of the Agency under area staff regulation 9.1 with effect from close of business today..." On 31 December 1989, the Applicant lodged an appeal with the Joint Appeals Board (JAB). The JAB adopted its report on 21 November 1990. Its findings read, in part, as follows: "— The incidents of the Biddo village having occurred on 1 November 1989, the Board can only assume that the DUO/WB's [Director of UNRWA Operations, West Bank] letter was written in the full knowledge of these incidents and apparently in response to them. — The Board notes also that in the above-mentioned letter, the DUO/WB had also decided to reassign the Appellant to a post of sanitation labourer in Jalazone camp, upon completion of his period of suspension. — The Board finds it therefore difficult to accept the reasoning of the Administration in deciding on 11 November 1989 to terminate the services of the Appellant without submitting any evidence of new misconduct which could have justified the later decision.

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— The Board believes that the chronological sequence of events and subsequent decisions is of the utmost importance and that, in all equity, no two separate decisions of varying severity could be taken in respect of one and the same case. — The Board, therefore, recommends to the Commissioner-General to uphold the decision taken on 2 November 1989, assigning the Appellant to the post of Sanitation Labourer, grade 01, in Jalazone camp." On 8 July 1992, the JAB transmitted its report to the Commissioner-General, noting: "2. Delay in submission of the report is due to belief of emergence of some evidence that could have led to a change in the recommendations of the Joint Appeals Board. 3. The Joint Appeals Board has reconsidered the case and accordingly confirms adherence to the recommendations made in the submitted report." On 10 August 1992, the Officer-in-Charge, Headquarters, UNRWA, transmitted a copy of the JAB report to the Applicant and informed him as follows: "I regret to inform you that I cannot accept the Board's recommendation that you be transferred to the post of Sanitation Labourer in Jalazone Camp. I believe that the Board is mistaken in its assumption that the Administration was aware of the serious disturbances that had occurred at Biddo Village on 1 November 1989, when it wrote to you on 2 November 1989 about a transfer. I am satisfied that upon learning of that incident, the Administration decided to terminate your services in the interest of the Agency on 11 November 1989.1 must therefore inform you that this decision will stand." On 20 December 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Applicant was never charged verbally or in writing with misconduct and was not given an opportunity at any time to defend himself. 2. The Applicant's work was considered satisfactory. He did not violate any regulations or procedures pertaining to his work, or act in any immoral or dishonest manner. 3. Termination of the Applicant's services was unjust. He was a victim of collective punishment, which is against the principles of the United Nations. Whereas the Respondent's principal contentions are:

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407

1. The Commissioner-General has the discretionary authority under area staff regulation 9.1 to terminate the appointment of a staff member in the interest of the Agency. 2. The decision to terminate the Applicant's appointment was proper and not motivated by any improper motive. It was based on investigations which established that the Applicant was engaged in serious derelictions of duty, if not outright misconduct. The Tribunal, having deliberated from 21 October to 11 November 1994, now pronounces the following judgement: I. The Applicant's account begins with a description of his team being informed, on 15 October 1989, that it should discontinue its distribution functions. An interrogation of the team was carried out by four UNRWA employees as to how members carried out their functions in relation to distribution. Neither the Applicant nor any individual was accused of misuse of commodities. On 1 November 1989, the team was ordered back to work. It went to the village of Biddo where, according to the Applicant, the team was attacked by two youths and certain goods were stolen. The security forces intervened and, after interrogation, the soldiers let the youths go with their booty. According to the Applicant, on 2 November, the distribution team was given letters by UNRWA saying, in the Applicant's case, that he might be guilty of misconduct or serious misconduct. Specifically, it would appear that he had been involved in irregularities in the distribution of commodities. An investigation of these charges was being made. Pending its outcome, he was suspended from duty without pay, with effect from close of business 1 November 1989, in accordance with the provisions of staff rule 110.2. The Applicant says that he was never charged and never given an opportunity to defend himself. On 11 November the Applicant was informed by letter that, as a result of the now completed investigation, it had been decided to terminate his appointment under area staff regulation 9.1, with effect from 11 November 1989. The Applicant says that he was not told what he was guilty of. II. The Respondent gives a different account. He says that the Agency undertook an audit of the Supply, Distribution and Warehousing Operations on the West Bank during the period 16 May to 15 June 1989. The auditor discovered irregularities in the Jerusalem stores, including excessive loading on trucks for daily distribution. He found more irregularities on a second visit. As a result, a Board of Inquiry was established. Commencing on 23 August 1989, it held sessions until 9 September 1989, interviewing 18 witnesses, including the Applicant. The Board found that the Applicant,

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Administrative Tribunal of the United Nations

and others, had been involved in the misappropriation of commodities and in serious misconduct. Having considered the Board's report, the Director of UNRWA Operations, West Bank, informed the Applicant on 2 November 1989, that, on the basis of the investigation, he was suspended for 30 days without pay. Thereafter, he was to be reassigned to the post of Sanitation Labourer. The Applicant, in his application, seems to be referring to a different letter, although of the same date. The Respondent's account of the Biddo incident is that the team was accused publicly by the villagers of embezzlement or selling commodities intended for refugees and that an Agency official was able to calm down the situation only by promising to investigate these allegations. Subsequently, testimony was obtained that the Applicant was involved in the misappropriation of Agency goods. Following the Biddo incident, the Director of UNRWA Affairs, West Bank, notified the Applicant, by letter of 11 November 1989, that his appointment was terminated. III. The Applicant appealed to the Joint Appeals Board (JAB). While it could not determine whether the Agency had knowledge of the Biddo incident when it suspended the Applicant on 2 November 1989, the JAB recommended, on the assumption that the Administration was in possession of this information, that the decision to assign the Applicant to a new post be reinstated and the decision to terminate his appointment be rescinded. Subsequently, the Deputy Commissioner-General stated that he was satisfied that the Field Director was not aware of the Biddo incident when he wrote to the Applicant on 2 November 1989 that he had been suspended and reassigned to a new post. IV. The Tribunal accepts the account of the enquiry which was carried out in August and September 1989, although in his application the Applicant makes no reference to it. The Applicant had an opportunity to give his account of his work and would, presumably, have had an opportunity to answer any allegation made against him. However, it is unclear whether specific allegations were presented to him at that time. The Tribunal also accepts that the Administration did not know of the Biddo incident when the letter of 2 November 1989 was written. The decision to suspend and reassign the Applicant in the aftermath of the enquiry was fully justified by its findings. Indeed it could be regarded as generous. The Tribunal has no difficulty in accepting the Respondent's account of the Biddo incident, but it notes that the Applicant was not afforded an opportunity to respond to the allegations made concerning the incident.

Judgement No. 684

409

V. While the Tribunal concludes that the Respondent's action in dismissing the Applicant was fully justified, it is troubled by the Applicant's contention that he was never charged with misconduct or given an opportunity to defend himself. The record supports this contention, indicating that the Applicant was notified of the findings of the two investigations against him, without having been formally charged. The Tribunal holds that the Applicant is therefore entitled to compensation. VI. For the reasons set forth above, the Tribunal orders the Respondent to pay to the Applicant three months of his net base salary at the rate in effect on the date of his separation from service. VII. All other pleas are rejected. (Signatures) Samar SEN

Hubert THIERRY

President

Member

Francis SPAIN

R. Maria VICIEN-MILBURN

Member

Executive Secretary

New York, 11 November 1994

Judgement No. 684 (Original: English) Case No. 739: Abdul Rahim

Against: The CommissionerGeneral of the United Nations Relief and Works Agency for Palestine Refugees in the Near East

Application of a former staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)for reinstatement, for compensation for injury and loss sustained and for costs. The Joint Appeals Board found that the Applicant did not have the status of staff member at the time the events leading to the litigation occurred and therefore could not invoke the jurisdiction of the Board. —It considered accordingly that the appeal was not receivable. The Tribunal rejects the Applicant's preliminary pleas for production of documents, as the material before it is adequate. The Tribunal notes that the issues in this case are basically the same as those in Judgement No. 650 (Bakr et al.) and its conclusions reached in that case are applicable to the

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present one.—The Tribunal held that, infairness and equity, staff governed by the Area Staff Regulations could not be deprived of their right to be properly heard by an independent judicial body and rejected the Respondent's arguments based on practical and administrative difficulties.—It rejects Respondent's contention that the Tribunal is without competence rationae temporis as, at the time the area staff rules were revised in June 1991, there was no indication that the old system would continue to prevent staff members from seeking redress from the Tribunal.—It holds that the Applicant is a former staff member who alleges non-observance of her contract of employment.—The Tribunal notes that the Applicant was not given priority when she originally applied for re-employment within the requisite time period and that she continued her efforts to gain re-employment; therefore she is not time-barred.—While the requirements for re-employment changed after the Applicant resigned, her right as a former teacherfor re-employment within three years from separation should not have been eclipsed by imposition of requirements without her knowledge. The Tribunal orders that the Applicant be accorded priority for posts for which she applies and is qualified.—Award of compensation of 12 months of net base salary at the time of resignation if she is not so appointed within 9 months of the date of the judgement.—All other pleas rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Hubert Thierry; Mr. Francis Spain; Whereas, on 23 June 1993, Iffat Fu'ad Abdul Rahim, a former staff member of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (hereinafter referred to as UNRWA), filed an application containing a request for the production of certain documents and, inter alia, pleas for: 2. Reinstating the Applicant to service, and considering her on special leave with full pay ever since she applied for reinstatement, i.e. September 1987. 3. Compensating the Applicant for the loss and injury she sustained estimated at USD 40,000. 4. Payment of secretarial and legal counsel's fees estimated at USD 2,000." Whereas the Respondent filed his answer on 23 December 1993; Whereas the Applicant filed written observations on 20 February 1994; Whereas the facts in the case are as follows: The Applicant entered the service of UNRWA on 4 September 1961, as a Teacher at the Beisan School, Hama, North Area, on an indefinite appointment, at the grade 5 level. She was subsequently transferred to other schools in the Damascus Area. The Applicant resigned, with effect from 1 October 1986. The Applicant was employed again by UNRWA on a

Judgement No. 684

411

temporary basis, with effect from 7 October 1987, as a Teacher at the Nimreen School, Damascus Area, at the grade 6 level. Her temporary employment ended, with effect from 1 November 1987, following a memorandum from the Applicant to the Field Education Officer, which read, "I request stopping work with effect from 1 November because I refuse appointment on temporary basis." On 29 June 1977, prior to the Applicant's first resignation, UNRWA issued staff circular No. A/5/77, advising UNRWA staff that: "The Agency has agreed to amend the relevant Personnel Directive to provide that if a teacher resigns from the Agency to accept another teaching post within the Middle East and he subsequently applies for re-employment by reinstatement within two years from the date of resignation, the Agency will give him priority over new candidates who are equally qualified." With effect from 1 July 1980, personnel directive A/4/Rev.4/ Amend.9, Section 3.6, extended the period of priority for re-employment of teachers from two years to three years from the date of resignation. On 23 April 1992, the Applicant wrote to the Field Personnel Officer, Damascus, referring to a recent interview with the Director of UNRWA Affairs, SAR. She enclosed an application form for the post of Teacher. In a reply dated 26 April 1992, the Field Administration Officer, SAR, noted that when the Applicant voluntarily resigned from the Agency's service in 1986, she had been paid all benefits due to her and ended her contractual relation with the Agency. He noted that her subsequent temporary appointment was terminated at her request on 1 November 1987, and that she was not entitled to any further termination benefits. With respect to her request for re-employment, he stated: "... At the time you left the Agency, teachers who applied for re-employment within three years from the date of their resignation were given priority over new candidates who were equally qualified, but not over better qualified candidates. Besides, it appears that you resigned from employment with the Agency more than three years ago. All former staff members, including teachers, who seek re-employment with UNRWA are simply viewed as external candidates and have no priority whatsoever in employment." On 27 May 1992, the Applicant wrote to the Field Administration Officer, SAR, noting, inter alia, that she had been applying continually for reinstatement since September 1987. Her applications in 1988, 1989, 1990, and 1991 were "with no avail on the ground that I am over age, i.e. over 35 years." She noted that she had already been older than 35 years when she resigned on the basis of the rules that provided for priority rein-

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statement within three years, and she requested permission to appeal directly to the Administrative Tribunal. In a reply dated 6 July 1992, the Field Administration Officer, SAR, stated: "The Agency's position is that there is no decision that can be appealed from and, therefore, we cannot agree to your request." On 19 July 1992, the Applicant lodged an appeal with the Joint Appeals Board (JAB). The JAB adopted its report on 29 March 1993. Its findings and recommendation read, in part, as follows: "III. Board Findings, . . . 12. ... The Board focused on the content of paragraph 3.6 of personnel directive A/4/Rev.4/Amend.9 effective 1 July 1980 titled 'Reinstatement of Teachers' and contends that it does not invoke a contractual relation between the Agency and the Applicant in any sense. 13. The Board also considered appeal procedures as stipulated in area staff rule 111.3 and which provide that only 'a staff member' can file an appeal against a disciplinary measure or anything that touches on the terms of his/her appointment. 14. In this context the Board finds that the Applicant's case does not qualify to invoke the competence of the Board as the matter raised is outside its jurisdiction and at the material time of the application, the Applicant did not enjoy the status of a staff member of the Agency. IV. Recommendation 15. In view of the foregoing, the Board submits it lacks jurisdiction to entertain such an appeal and therefore, without prejudice to any other submissions as may become necessary, unanimously makes its recommendation to declare this appeal unreceivable." On 13 May 1993, the Commissioner-General transmitted a copy of the JAB report to the Applicant, and informed her that he accepted the JAB's recommendation. On 23 June 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The JAB ruled unfavourably on the Applicant's case, and her application to the Tribunal was filed within the time-limits provided by the Statute and Rules of the Tribunal. It is therefore receivable. 2. The Applicant had the right, at the time she resigned from the Agency, to priority consideration for re-employment within three years of her resignation.

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3. The decision of the Respondent not to reinstate the Applicant is flawed by mistake of fact, error of law, prejudice against acquired rights, age discrimination, and unjust enrichment. Whereas the Respondent's principal contentions are: 1. The Tribunal does not have jurisdiction over the matters raised by the Applicant, as the Area Staff Regulations and Rules governing her appointment when she resigned from service and when she applied for re-employment did not provide for such jurisdiction. 2. The Applicant's claim against the Respondent is time-barred, as she seeks review of an Agency decision made in 1987 and did not file an appeal with the JAB until 19 July 1992. 3. The decision as to whether to re-employ the Applicant is inherently discretionary. The Applicant does not make any allegation of prejudice in the Respondent's decision. The Tribunal, having deliberated from 21 October to 11 November 1994, now pronounces the following judgement: I. At the outset, the Tribunal considered the Applicant's preliminary pleas asking the Respondent to produce certain documents and concluded that the material before the Tribunal was adequate for examining the principal issues in this case. Accordingly, the request for further documents was denied. II. The main questions raised by the Applicant are practically the same as those the Tribunal considered in its Judgement No. 650, Bakr et al. Judgement No. 650 was rendered on 20 July 1994, while the present application was filed on 23 June 1993, i.e. about a year before Judgement No. 650. In that judgement, the Tribunal discussed the issues and came to some definitive conclusions which are applicable in this case. III. First, the Tribunal held that the local UNRWA staff governed by the Area Staff Regulations cannot be deprived of, far less totally denied, their right to be properly heard by an independent judicial body. In this context, the Tribunal took the view "that it was not precluded from hearing cases involving staff members such as the Applicants, there being no other judicial forum for dealing with such." After referring to the Advisory opinion of the International Court of Justice of 13 July 1954, the Tribunal concluded that there was no justification in "fairness and equity" to deny the Applicant(s) as area staff members recourse to an external judicial body while allowing such recourse for international staff members. Therefore, consistent with its previous ruling, the Tribunal rejects the plea that it is without competence "ratione materiae". For similar reasons of fairness and justice, the Tribunal could not endorse the view that because of practical and administrative difficulties, the staff members governed by Area Staff Regulations should be denied the basic elements of justice.

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IV. The Respondent's argument, which denies the competence of the Tribunal on the ground of ratione temporis, must also fail as, at the time of the revision of the Area Staff Rules, in June 1991, there was no indication that the old system (of no recourse to the Tribunal and only a limited system of internal recourse in the event of termination) would continue to prevent staff members from seeking redress from the Tribunal. "If it had been the intention to perpetuate that position, the provision extending the jurisdiction of the Tribunal should have provided expressly for this result." (Judgement No. 650, Bakr et al, paragraph XVIII.) V. Inasmuch as the Applicant was a former staff member, the contractual obligations between the parties may be considered to subsist and may affect any prospective actions related to the earlier employment. This indeed is the view the Tribunal took in Judgement No. 650, holding that "the fact that the Applicants were not staff members does not necessarily deprive them of recourse. These, of course, are former staff members who filed appeals relating to alleged non-observance of the terms of their contracts of employment." (Judgement No. 650, Bakr et al., paragraph XIV.) VI. The Tribunal finds that the Applicant was not given priority when she originally applied for re-employment within the requisite time period. The Tribunal notes that the Applicant applied several times for re-employment and finds that she is not time-barred in her application because her efforts to gain re-employment were continual. They began well within the period during which she was entitled to priority consideration and they continued to 1992, culminating in her decision to seek recourse. Although there is no guarantee that the Applicant would have been re-employed even if she had been given priority, she suffered a denial of rights for which she is entitled to compensation. VII. The Applicant notes that requirements for the employment of teachers were changed and that she was consequently denied consideration on the basis of factors which were not present or known to her when she resigned. The Tribunal considers that the Applicant's right, as a former teacher, to priority consideration for re-employment within three years of separation, should not have been eclipsed by the imposition of requirements, without her knowledge, which made priority consideration of her re-employment impossible. VIII. In view of the foregoing, the Tribunal orders that: (i) The Applicant be accorded priority for the teaching posts in UNRWA for which she applies and for which she is qualified; and (ii) If the Applicant is not appointed within 9 months from the date of this judgement to a suitable post in UNRWA, the Respondent pay to the Applicant compensation, for the injury referred to in paragraph VI above, equivalent to 12 months of her net base salary at the rate in effect at the time of the Applicant's resignation.

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(iii) All other pleas are rejected. (Signatures) Samar SEN

Hubert THIERRY

President

Member

Francis SPAIN

R. Maria VICIEN-MILBURN

Member

Executive Secretary

New York, 11 November 1994

Judgement No. 685 (Original: English) Case No. 722: Loguinov

Against: The United Nations Joint Staff Pension Board

Application of a staff member of the United Nations Industrial Development Organization (UNIDO) and participant in the United Nations Joint Staff Pension Fund for rescission of the decision denying him the right to restore prior contributory service with the Fund. The Standing Committee of the United Nations Joint Staff Pension Board upheld the decision of the Secretary of the Board to deny the Applicant the right to restore his prior contributory service. The Applicant applied for restoration of prior contributory service after the Board authorized participants from the former USSR to apply for it, after the agreement between the Fund and the Government of USSR on transfer of pension rights was suspended.—This was denied to him as he had made an application in the past to restore prior service butfailed to make the required payments within the prescribed time-limit.—Applicant's arguments that the decision was based on strictly legal grounds, without taking into consideration his position as staff member on secondment from USSR who was forced to surrender to his government some 50 per cent of his salary as well as his pension rights at the end of his service and had no money to pay for the restoration.—The Tribunal considers that, if the situation was as described by the Applicant, it is not clear why he had requested restoration as he had no money to pay for it and would have derived no benefit from it.—He knew that the failure to comply with the conditions of payment would result in irrevocable loss of his right to restore.—While not unaware of or unsympathetic to the problems faced by the Applicant and others in similar situations, the Tribunal is unable to find that they would legally permit derogation from the application of the Regulations and Administrative Rules of the Fund. Application rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of: M. Samar Sen, President; M. Hubert Thierry; M. Mayer Gabay;

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Whereas at the request of Evgueni Loguinov, a staff member of the United Nations Industrial Development Organisation (hereinafter referred to as UNIDO), the President of the Tribunal, with the agreement of the Respondent, extended the time-limit for the filing of an application with the Tribunal to 31 January 1993; Whereas, on 3 November 1992, the Applicant filed an application that did not fulfil all the formal requirements of article 7 of the Rules of the Tribunal; Whereas, on 31 March 1993, the Applicant, after making the necessary corrections, again filed an application requesting the Tribunal to order the rescission of the decision by the Standing Committee of the United Nations Joint Staff Pension Board (the Board), upholding the decision by the Secretary of the Board, to deny the Applicant his right to restore prior contributory service with the Fund; Whereas the Respondent filed his answer on 29 April 1994; Whereas the Applicant filed written observations on 26 May 1994; Whereas the Applicant filed further written observations on 10 August 1994; Whereas the facts in the case are as follows: The Applicant first served the Organisation from 1967 to 1972, on secondment from the USSR Government, as a Translator/ Reviser at the P-4 level, in the Russian Translation Section of the United Nations Secretariat in New York. He was a participant in the United Nations Joint Staff Pension Fund (the Fund) from 23 October 1967 to 7 September 1972. Upon separation he was paid a withdrawal settlement, in accordance with his payment instructions. The Applicant rejoined the service of the Organization from 1974 to 1979, again on secondment, and re-entered the Fund as a participant on 20 October 1974. He did not restore his prior period of contributory service. On 29 December 1979, the Applicant separated from the Organization, opting again for a withdrawal settlement, which was paid to him in February 1980, in accordance with his payment instructions. In 1981, after the Applicant had separated from the Organization for the second time, and before he entered service again for the third time, identical transfer agreements were concluded between the Fund and the USSR, the Ukrainian SSR and the Byelorussian SSR. These agreements enabled staff members to transfer pension rights from the Fund to the Social Security Fund of these countries. On 4 November 1984, the Applicant entered the service of UNIDO, on secondment from the USSR Government, and again became a Fund participant. In early 1986, following the Tribunal's Judgement 360, Tay-

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lor, the Applicant was informed that he had the right to restore his periods of prior contributory service in the Fund. On 9 May 1986, he completed form PENS C/l, electing to restore his two prior periods of service. On 2 February 1987, the Secretary of the Board wrote to the Applicant regarding the amount he had to pay in order to effect the restoration, pointing out that he had the option to pay this amount in a lump sum or in specified monthly instalments. The letter stated, "the remittance of a lump sum or the commencement of the instalments is expected within 90 days of the date of this memorandum, otherwise your right to restore will be deemed to be cancelled." The Applicant made no payment. On 13 September 1990, the Applicant resigned from the Ministry of Foreign Affairs, with effect from 30 September 1990. His subsequent letter of appointment, with effect from 4 November 1990, made no reference to secondment. Under "Special Conditions", it noted: "On assignment from UN HQ". On 30 November 1990, the Secretary of the Board, in reply to a query dated 26 November 1990, from the Secretary of the UNIDO Staff Pension Committee concerning the Applicant, stated that the Applicant's right of restoration had been deemed cancelled in view of his failure to make the required payment, pursuant to administrative rules F.3 and F.4 of the Fund. This letter was forwarded to the Applicant, who wrote to the Secretary of the Board on 12 December 1990, explaining that he had been on secondment from the Government of the USSR until his resignation from government service in October 1990. He stated that "all the matters concerning my pension rights—its transfer, restoration, etc., including its disposal—had been handled by my government." With effect from 3 November 1990, he noted that he was "with UNIDO as a free agent" and suggested several alternative methods of lump sum and monthly payments that he might make to cover the period since 2 February 1987, for restoration of his prior periods of contributory service. In a reply dated 14 January 1991, the Secretary of the Board informed the Applicant that his right of restoration was not affected by his secondment status. He noted that the Applicant had the right to request restoration of prior contributory service, and that he had actually done so, but that as payment had not been made within the applicable time limit, the right of restoration had been cancelled. In July 1991, the Board decided to permit Fund participants from the former USSR, Ukrainian SSR and Byelorussian SSR, who had transferred their UN Pension Fund rights to the USSR Social Security Fund, in accordance with the transfer agreements between the Fund and these governments, to restore their prior contributory service. In a letter to the Secretary of the Board, dated 14 October 1991, the Applicant renewed his request for restoration on the basis of this decision. In a reply dated 1

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November 1991, the Secretary of the Board informed the Applicant that the Board's 1991 decision did not apply in his case, as he had not transferred his pension rights under these agreements. In a letter dated 14 February 1992, the Applicant requested a review by the Standing Committee of the Board of the decision by the Secretary of the Board. On 2 July 1992, the Standing Committee considered the Applicant's case, and on 27 July 1992, the Secretary of the Board informed the Applicant that the Standing Committee had upheld the Secretary's decision to deny the Applicant's request for restoration. The letter reads, in part: "... Under the circumstances of your case, no other Fund participant could restore his or her prior contributory service: having been advised of the payment required to effect the restoration, you had failed to make the necessary restoration payment(s) in accordance with the Fund's administrative rule F.3, and consequently your right of restoration was deemed to be cancelled under administrative rule F.4 ..." On 31 March 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. While on secondment, the Applicant was unable to exercise his pension rights freely, as forced deductions by the USSR Government from his salary prevented him from meeting the financial terms required for restoration. 2. The Fund's administrative rule F.3 should not apply. The Applicant's case should be regarded as exceptional, as circumstances beyond his control made it impossible for him to comply with the Fund's Rules. 3. By opting for the UN pension, the Applicant lost his national pension rights. The possible loss of UN pension rights for the ten years of his previous service, and the loss of national pension under the extraordinary circumstances of the dissolution of the USSR, leaves the Applicant in a precarious position and should be taken into account. Whereas the Respondent's principal contentions are: 1. There is no discretion vested in the Secretary of the Board with respect to the right of restoration, which is granted under clearly delineated circumstances. 2. By failing to meet the conditions in the Regulations and Rules of the Fund, the Applicant lost his restoration rights. The reasons for the failure are not relevant.

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3. The conditions of the Applicant's secondment by the USSR Government have no bearing on the Applicant's entitlement under the Fund's Regulations. The Tribunal, having deliberated from 27 October to 11 November 1994, now pronounces the following judgement: I. The issue on which the Tribunal is asked to make a decision is a narrow one: Should it uphold the decision of the Standing Committee of the Board, confirming the ruling by the Secretary of the Board which denied to the Applicant the right to restore prior periods of contributory service from 23 October 1967 to 7 September 1972, and from 20 October 1974 to 29 December 1979. The reason given for the denial was the failure by the Applicant to comply with the requirements of rule F.3 of the Administrative Rules of the Fund regarding payments to be made, if he wanted the restoration for which he had applied, to take effect. II. The Applicant asks the Tribunal to rescind that decision because he claims it is based on strictly legal grounds and ignores his situation as a staff member who, at the relevant time, was on secondment from the Government of the former USSR. This, he asserts, made it impossible for him to comply with the Administrative Rule cited above. He claims he should, therefore, be allowed to restore despite his non-compliance with that Rule. III. The Applicant cites only one reason bearing directly on his alleged inability to comply with administrative rule F.3. For the rest, the Applicant objects to the general policy of the Government of the former USSR in regard to the pension rights of their seconded officials. He refers to the problems of those who were covered by a Transfer Agreement between the Fund and the USSR. The Applicant's right to restore the periods in question had not, however, been affected by this agreement, which came into force only in 1981, after the Applicant had separated from service in 1979. IV. The one contention bearing directly on the Applicant's alleged inability to comply with the requirements of administrative rule F.3 is the assertion that "as a pre-condition for granting me secondment, the Government had wrung from me the pledge to surrender to it some 50 per cent of my UN salary, as well as my UN pension rights at the end of my service with the United Nations." V. This assertion, pointing to the reported practice of the former USSR, does not, however, explain the Applicant's failure to comply with administrative rule F.3. That rule applies only after a participant has elected to restore prior service, which the Applicant did by completing the requisite forms (PENS C/l) on 9 May 1986. If at that time his situation was as he describes it, it is not clear what was the purpose of his request to restore, as he seemingly neither had the money to pay for the res-

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toration nor would have derived a benefit from it, even if he could have made the payment required. VI. Knowing the penalty for failure to comply with the conditions for payment if his request was accepted, namely that his right to restore would be lost irrevocably, under administrative rule F.4, there was no evident reason for the Applicant to seek restoration at that time. Nevertheless, the Tribunal must take into account that he did in fact ask for the restoration of his pension rights and that he must bear the consequences. VII. The Tribunal, while not unaware of or unsympathetic to the problems apparently faced by the Applicant and others in similar situations in respect of their pension rights, is unable to find that in this particular case, they would legally permit derogation from the application of the Regulations and Administrative Rules of the Fund. VIII. The Tribunal, for the reasons set forth above, finds that the decision of the Standing Committee of the Board, denying to the Applicant the right to restore the prior service in question, should be upheld, and rejects all claims by the Applicant. (Signatures) Samar SEN President

Hubert THIERRY Member

Mayer GABAY Member

R. Maria VICIEN-MILBURN Executive Secretary

New York, 11 November 1994

Judgement No. 686 (Original: English/French) Case No. 644: Rebizov

Against:

The Secretary-General of the United Nations

Application of a former staff member of the United Nations for rescission of decision not to extend his fixed-term appointment and for reinstatement. Application submitted directly to the Tribunal with the concurrence of the SecretaryGeneral. The Tribunal finds that, under the criteria discussed in Judgement No. 482 (Qiu, Zhou and Yao), the Applicant was erroneously considered to be on secondment from USSR.—All the evidence clearly establishes that the non-extension of his contract was due to the lack of consent by the authorities of USSR.—A strong presumption exists that this lack of consent

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421

was due to protests made by the Applicant, particularly in February 1990, against certain alleged practices of the USSR authorities with respect to staff members considered by them to be on secondment.—The Applicant was thus wrongly separated from the Organization.—The Tribunal recalls the circumstance in which the Applicant's situation was reviewed by a Joint Working Group, under provisions promulgated by the Secretary-General for implementing Judgement No. 482.—The Tribunal notes that the report of the Working Group, which did not recommend the Applicant's extension, was unduly influenced by unfavourable opinion about the Applicant's performance of the Chief of the Russian Translation Section and considers that the role of this official was highly questionable and retaliatory in nature.—The Tribunal regrets that the Respondent disclosed to it information about an offer made to the Applicant by the Administration in an attempt to settle his claim and about the Applicant's reply.—It trusts that in thefuture no party will submit the contents of unsuccessful settlement efforts.—The Tribunal concludes that the Applicant's separation, based on the belief that he was on secondment, was improper and that his right to be evaluated on objective grounds for an extension was violated by the injection of extraneous considerations. Award of compensation equal to 19 months net base salary at the time of separation.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Jerome Ackerman, Vice-President, presiding; Mr. Hubert Thierry; Mr. Francis Spain; Whereas on 10 January 1992, Alexei Nikolayevitch Rebizov, a former staff member of the United Nations, filed an application requesting the Tribunal, inter alia, to: "— Quash and nullify the decision rendered on 13 June 1990 by [the] Chief, Personnel Service (...); — Quash and nullify the decision of 14 October 1991 (...); — Quash and nullify any evaluation of my job performance made after November 1989; — Order that I be reinstated, as from 15 June 1990, as a United Nations staff member with all effects deriving from the Staff Regulations; — Order that I be reinstated immediately as a United Nations staff member; — Order that my contract with the United Nations be extended until 14 January 1991, with all effects, including pecuniary ones, deriving from the Staff Regulations and my contract." Whereas the Respondent filed his answer on 8 March 1994; Whereas the Applicant filed written observations on 7 October 1994;

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Whereas the Tribunal put questions to the Respondent on 14 October 1994, to which he provided answers, together with supporting documents, on 25 and 26 October 1994. Whereas, on 2 and 3 November 1994, the Applicant requested the production of further documents and commented on the Respondent's submission; Whereas the facts in the case are as follows: The Applicant entered the service of the United Nations on 15 January 1989, as an Associate Translator in the Russian Translation Section in the Department of Conference Services of the United Nations Office at Geneva (UNOG), on a one year fixed-term appointment. His letter of appointment noted, under "Special Conditions," that he was "on secondment from the Government of the Union of Soviet Socialist Republics." On 17 November 1989, the Chief of the Russian Translation Section completed a performance evaluation report (PER) for the Applicant from 15 January through 18 November 1989, giving him four "C"s (Good), six "B"s (Very Good) and one "A" (Excellent), and noting "[h]e is loyal to the United Nations." The PER was signed by the Chief of UNOG Languages Service on 21 November 1989, with an overall rating of a "good performance." On 22 January 1990, the PER was signed by the Applicant. On 5 December 1989, the Chief of the Russian Translation Section recommended, to the Officer-in-Charge of UNOG Languages Service, a six-month extension of the Applicant's appointment, which was due to expire on 14 January 1990. On 22 December 1989, the Chief of UNOG Languages Service recommended to the Chief of Personnel Service a one-year extension of the Applicant's appointment. On 26 February 1990, the Applicant, along with two other USSR staff members, sent a letter to the Permanent Representative of the USSR to UNOG, charging that practices were still being followed which forced them to violate the UN Charter and their oath of office and listing some of them. They concluded by recording their "refusal to fulfil departmental directives incompatible with the standards and principles of the international civil service and the UN Charter." In a cable dated 4 April 1990, an official at the Office of Human Resources Management (OHRM) at Headquarters communicated to UNOG its approval of the recommendation to extend the Applicant's appointment for one year, "subject to Government concurrence." On 18 April 1990, the Chief of the Russian Translation Section wrote to the Chief of the UNOG Languages Service, recalling that the Section had recommended a six-month extension of the Applicant's contract, which had nevertheless been extended for one year. He noted that the Applicant's

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423

performance "has not since shown any signs of changing for the better." In view of the "steadily inadequate quality of his work," he requested that the question of "terminating [the Applicant's] contract after the 6-month period initially proposed" be reconsidered. In a reply dated 24 April 1990, the Chief of the UNOG Languages Service expressed regret that the Applicant's performance had not improved. She noted that Headquarters had approved a one year extension "subject to Government concurrence" which had not yet been received. She said the Applicant would be given a short-term contract "to cover the period until a reply is received from the Soviet authorities." She reaffirmed that the recommendation for a one year extension of the Applicant's contract was "to allow him the normal training period of two years" and concluded that "the decision concerning the extension of his contract now rests with the Soviet authorities." On 30 April 1990, OHRM at Headquarters cabled UNOG, in part, as follows: ". . . OHRM HAS RECEIVED GOVERNMENT CONCURRENCE TO EXTEND [THE APPLICANT'S] FIXED-TERM APPT [APPOINTMENT] ONLY THROUGH 14 JUNE 1990 REPEAT 14 JUNE 1990 SINCE THERE ARE SERIOUS GRIEVANCES AGAINST HIS PERFORMANCE...." The Applicant was successively granted three fixed-term appointments, through 14 June 1990. The Personnel Action form effecting the first extension, through 15 March 1990, describes it as an "[e]xtension of fixed-term appointment for a period of one year through 14 January 1991." The section of the form headed "Remarks" notes that it was an "[i]nterim extension pending receipt of Government concurrence." The three letters of appointment each stated, as a special condition, that the Applicant was "on secondment from the Government of the USSR." On 14 May 1990, the Applicant wrote a letter to the Permanent Representative of the USSR Mission to UNOG. Referring to his earlier letter of 26 February 1990, he noted that he and the other two staff members who wrote the letter had since "been under constant pressure and received various threats from the officials of the Soviet Mission," and that he personally, because of the pending extension of his appointment, had become "the main target of those retaliatory measures." He stated that, in a private conversation, in March 1990, the USSR Deputy Ambassador had proposed a four-year extension of his contract in exchange for withdrawal of the letter. As a result of his refusal, the Chief of the Russian Translation Section was attempting to discredit his performance "to provide a fallacious justification for the non-renewal of [his] contract." On the same date, the Applicant sent a copy of his letter to the Assistant Secretary-General for OHRM and requested protection "in view of

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the seriousness of the threats". He also stated his concern that the Chief of the Russian Translation Section was "wilfully endeavouring to discredit my performance and conduct in order to provide a fallacious ex-post-facto justification for his attempts to curtail the normal renewal of my service." On 29 May 1990, the Applicant wrote to UNOG's Chief of Personnel Service and requested an extension of his appointment. In a reply dated 1 June 1990, a Personnel Officer informed him, "approval for the extension of your contract was given until 14 June 1990 and we do not have, therefore, the authority to extend your appointment". In mid-May 1990, the Applicant requested the Panel on Discrimination and Other Grievances (the Panel on Discrimination) to investigate his case. On 1 June 1990, a memorandum was sent from the Panel on Discrimination to UNOG's Chief of Personnel Services, requesting that the Applicant's contract be extended for two months, so that the Panel on Discrimination could complete its investigation. On 5 June 1990, the Chief of the Russian Translation Section wrote to the Panel on Discrimination, noting that their obligation to act expeditiously was inconsistent with a request for extension. He recalled his previous comments to the effect that his request for the termination of the Applicant's contract was "predicated only on his consistently inadequate performance as a United Nations translator." He also recalled that "the Government concurrence in [the Applicant's] case is only through 14 June 1990." On 13 June 1990, the Chief of Personnel Services, UNOG, responded to the Panel on Discrimination's request of 1 June 1990, inter alia, as follows: "Please be informed that, in the absence of his Government's concurrence for an extension of the period of secondment, the Office of Human Resources Management is unable to extend [the Applicant's] appointment beyond 14 June 1990." On 13 June 1990, the Panel on Discrimination informed the Assistant Secretary-General for OHRM that, as its request for an extension of the Applicant's appointment had been rejected, it could not proceed with the examination of the case. Also, on 13 June 1990, the Chief of Personnel Service, UNOG, wrote to the Applicant that, "in the absence of Government concurrence for an extension of the period of secondment, the Office of Human Resources Management is unable to extend your appointment beyond 14 June 1990."

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On 14 June 1990, the Applicant separated from the Organization. On 29 June 1990, he requested political asylum from the Swiss Government, which was granted on 14 May 1991. On 13 August 1990, the Applicant wrote to the Secretary-General and requested a review of the administrative decision not to extend his appointment. On 21 November 1990, he requested the Secretary-General to agree to the direct submission of his appeal to the Administrative Tribunal. On 16 January 1991, the Assistant Secretary-General for OHRM advised the Applicant of the Secretary-General's agreement thereto. On 22 May 1991, a UNOG Joint Working Group, set up following UNAT Judgement No. 482 to consider the case of staff members "on secondment" whose appointments were not renewed and who had filed timely appeals took up the Applicant's case. On 14 October 1991, the Applicant was notified of the results of the review undertaken on his case by UNOG's Joint Working Group and of the Group's conclusion that his appointment would not have been extended, even if he had not been on secondment. On 10 January 1992, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. The Applicant's criticism of the practice of secondment and his criticism of the treatment of UN staff of USSR nationality by their Government led to the Respondent's decision not to extend his appointment. 2. The decision not to extend the Applicant's appointment beyond 14 June 1990 was based solely on the USSR Government's refusal to give its concurrence for an extension, and violates Article 100 of the Charter and the provisions of personnel directive PD/9/59, which provides that translators are to be recruited for a minimum period of two years. 3. Staff members who were called upon to assess the Applicant's performance discriminated against him, and any evaluation report of the Applicant's performance after November 1989 is invalid as he was not interviewed for and did not sign any such report. Whereas the Respondent's principal contentions are: 1. The Joint Working Group was established to provide independent and objective consideration of staff members based solely on their performance and the interest of the Organization, irrespective of the views of their Governments. 2. The Applicant's case was given proper consideration by UNOG's Joint Working Group. The decision not to reappoint the Applicant was fair and objective and fully respected his rights under the Staff Regulations and Rules.

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3. The Applicant had no entitlement, including any legally cognizable expectancy, as regards continued employment on expiry of his fixed-term contract. The Tribunal, having deliberated from 12 October to 11 November 1994, now pronounces the following judgement: I. The Applicant's claim arises from his employment with the UN from 15 January 1989 to 14 June 1990. The Applicant was employed as a Translator with UNOG, for one year, from 15 January 1989. In January 1990, the Chief of Personnel Administration sought approval from OHRM for a one year extension of the Applicant's appointment. This approval was given in early April 1990, "subject to Government concurrence". Although the Chief of Languages Service, in April 1990, reaffirmed her recommendation that the Applicant's contract be extended for one year, the Applicant was granted extensions of his contract for only five months, i.e. until 14 June 1990. During this entire period, the Applicant was erroneously considered to be on secondment from the USSR. The basis on which he was employed by the Organization did not conform to the standards for a valid secondment, discussed by the Tribunal in Judgement No. 482, Qiu, Zhou and Yao (1990). All the evidence, including the letters addressed to the Applicant by a Personnel Officer on 1 June 1990 and by the Chief of Personnel Services on 13 June 1990, clearly establishes that the non-extension of the Applicant's contract past 14 June 1990 was due to the lack of consent by the authorities of the USSR. A strong presumption can be made that protests by the Applicant, such as the one of February 1990, against certain alleged practices by the USSR authorities with respect to staff members considered by them to be on secondment, including interference in their work, was the basis for the lack of consent by the USSR Government to the extension of the Applicant's contract beyond 14 June 1990. II. The Applicant was thus wrongly separated from the Organization on 14 June 1990. After the Tribunal rendered Judgement No. 482, the Applicant's situation was reviewed by the Administration under provisions promulgated by the Secretary-General for implementing that judgement. (Cf. Judgement No. 559, Vitkovski and Rylkov (1992).) Accordingly, the Applicant's case was subsequently submitted to a Joint Working Group at UNOG for consideration of whether he should receive a further appointment. The report of the Joint Working Group dated 22 May 1991, states, in part: "2. During the meeting of the Working Group held on 22 May 1991, the Chief of the Russian Translation Section expressed his strong reservations about [the Applicant's] perfor-

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mance. He qualified him as the least capable junior translator and did not recommend any extension. 3. The Chief of the Languages Service added that she was convinced that [the Applicant's] performance left much to be desired and therefore she would not recommend him for any extension. In the light of [the Applicant's] performance the members of the Working Group share these views." The Respondent argues, on the basis of this report, that even if the Applicant had not been on secondment, his appointment would not have been renewed. III. Because of the significance of this contention by the Respondent, the Tribunal directed questions to the Administration and to the members of the Joint Working Group with regard to the 22 May 1991 report. The answers to these questions reveal that the comment in the report by the Chief of the Languages Service was based largely, if not entirely, on the reservations expressed by the Chief of the Russian Translation Section rather than on her own evaluation. Those reservations were not adequately supported by the evidence, particularly in view of the Applicant's 1989 performance evaluation report. Moreover, prior to the Applicant's separation, the Chief of the Languages Service had recommended a one year extension of his contract to allow completion of his normal training period and did not withdraw this recommendation even after being asked to reconsider it by the Chief of the Russian Translation Section. His view of the Applicant as the least capable junior translator is not substantiated by a comparison of his 1989 performance evaluation report with the performance evaluation reports of the other junior translators. The Tribunal also finds that the responses to questions directed to other members of the Joint Working Group indicate that their consideration was inadequate because it, too, was governed by the views expressed by the Chief of the Russian Translation Section rather than being based on a careful independent evaluation of all the pertinent evidence, including the Applicant's satisfactory 1989 performance evaluation report. Finally, it appears that the Chief of the Russian Translation Section was the object of a complaint by the Applicant in May 1990 to the Assistant Secretary-General for Human Resources Management, and to the Panel on Discrimination with respect to the Chief's hostile and allegedly biased intervention the previous month concerning the proposed normal extension of the Applicant's contract. The Tribunal cannot but conclude from all the evidence that, in the circumstances, the dominant role of the Chief of the Russian Translation Section in the Joint Working Group was highly questionable and that his actions were retaliatory in nature. IV. The Tribunal was informed by the Respondent of an offer made to the Applicant after he had left UN employment, in an attempt to

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settle his claim, including details of conditions attached to the offer and of the Applicant's response. As the offer and response have no bearing on the Applicant's case before the Tribunal, information relating thereto should not have been disclosed. The Tribunal will therefore disregard it. The Tribunal trusts that in the future, no party will see fit to submit the content of unsuccessful settlement efforts, as this would be improper and might also discourage settlement discussions. V. In view of the above, the Tribunal finds that the Applicant's separation, based on the belief that he was on secondment, was improper. He was plainly entitled, without any need for approval by the USSR authorities, to the extension of his appointment until 14 January 1991, as had been approved by OHRM and by the Chief of the Languages Service, on the basis of his satisfactory performance. In addition, his right to be evaluated solely on objective grounds for an extension of his contract was violated by the injection of extraneous considerations. VI. The Tribunal therefore finds that the Applicant is entitled to compensation and orders the Respondent to pay to the Applicant an indemnity equivalent to 19 months of his net base salary at the time of his separation from service. (Signatures) Jerome ACKERMAN

Hubert THIERRY

Vice-President, presiding

Member

Francis SPAIN

R. Maria VICIEN-MILBURN

Member New York, 11 November 1994

Executive Secretary

Judgement No. 687 (Original: English) Case No. 737: Cure

Against: The Secretary-General of the United Nations

Application of a staff member of the United Nations (Economic Commission for Latin America and the Caribbean—ECLAC)for rescission of decision to demote the Applicant to the first step of the grade below his actual one and to deny him for two years eligibility for

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within-grade increment, and for an order to remove from the record any mention that the Applicant's action caused disrepute with the host government. The Joint Disciplinary Committee found that the Applicant had violated internal ECLAC regulations and recommended a written censure and a fine of US$ 750.—Decision to impose, as disciplinary measure, demotion to the first step of the grade below the Applicant's actual one and denial for two years of eligibility for within-grade increment The Tribunal notes that the Joint Disciplinary Committee examined with care all conflicting claims and counter-claims and concluded that the Applicant was delinquent in his activities with regard to duty-free imports; it sees no need to re-examine the facts and confines itself to legal issues involved.—It holds that the Applicant was bound to comply with the rules made by ECLAC for the importation of goods and that he was aware of them..—Under staff rule 110.1 staff member has to comply with his or her obligations under the Charter of the United Nations, the Staff Regulations and Staff Rules and other relevant administrative issuances.—ECLAC rules for the importation of goods are such issuance.—It is not relevant that they were not approved directly by the General Assembly.—Subsidiary organs frequently have their own rules which are applicable to their staff provided that they are made known in advance.—It is not relevant that the Applicant's actions did not violate the terms of the agreement between ECLAC and the Government of Chile.—The Tribunal believes that the record does not support the Respondent's contention that the Applicant's actions brought the Organization into disrepute in the host country, especially as the infringements complained about affected a much wider circle of people.—The Tribunal therefore does not consider it appropriate that the Applicant's personnel file should contain any reference to this.—The fact that other staff members could have been equally remiss in importing duty-free goods is not acceptable asjustification for Applicant's own wrong-doing.—The Tribunal considers that, in accordance with constant jurisprudence, the Secretary-General's decision to impose disciplinary measures harsher than those recommended by the Joint Disciplinary Committee was within his discretionary power.—There is no evidence that the Secretary-General was influenced by any prejudicial or extraneous factors.—Once he decided that the Applicant's conduct violated standards of integrity, he was free to apply what penalty would be appropriate under staff rule 110.3 (a). The Tribunal orders to remove from the Applicants personnel file any conclusion that his action brought the Respondent into disrepute with the host Government.—All other pleas rejected.

THE ADMINISTRATIVE TRIBUNAL OF THE UNITED NATIONS, Composed of Mr. Samar Sen, President; Mr. Mikuin Leliel Balanda; Mr. Mayer Gabay; Whereas at the request of Daniel Cure, a staff member of the United Nations, the President of the Tribunal, with the agreement of the Respondent, successively extended the time-limit for the filing of an application to the Tribunal to 28 February, 31 May and 31 July 1993; Whereas, on 29 June 1993, the Applicant filed an application, requesting the Tribunal, inter alia: "(a) to re-examine the decision of the Secretary-General to (i) deny to the Applicant for a period of two years the eligibility for within-grade increment; and

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(ii) demote the Applicant to the first step of the grade below his actual one; (b) To find that, in spite of the Applicant's repeated efforts to clarify the case, facts have been distorted during the investigations; (c) To order the Respondent to reinstate the Applicant retroactively in his previous grade, including any pending annual salary increments, and restore him in his administrative career; (d) To order the Respondent to remove from the records all and any reference that the Applicant's actions caused any friction, embarrassment or brought the Respondent into disrepute with the host government," Whereas the Respondent filed his answer on 11 March 1994; Whereas the Applicant filed written observations on 8 August 1994; Whereas the Applicant submitted an additional document on 16 September 1994; Whereas the facts in the case are as follows: The Applicant entered the service of the United Nations on 15 November 1970, as a Personnel Officer at the P-3 level, on a probationary appointment, and was assigned to the Economic Commission for Latin America and the Caribbean (ECLAC) in Santiago, Chile. His appointment became permanent on 1 November 1972. On 1 August 1976, the Applicant was promoted to the P-4 level. With effect from 1 September 1976, he was named Acting Chief, Personnel Section. On 12 January 1979, the Applicant was appointed Chief of the Section. On 1 January 1980, he was transferred to Headquarters. On 1 April 1983, he was promoted to the P-5 level and transferred back to Santiago, to serve again as Chief of the Personnel Section. On 27 September 1991, a draft report by the Importation Committee dealing with "duty-free importation irregularities by two staff members in 1989-1991" was transmitted for comments to the Applicant and to his wife, who was also an ECLAC staff member. The letter of transmittal noted: "In the context of a verbal complaint by the Chilean Foreign Ministry, about 'abuses' by ECLAC staff of the duty-free importation provisions, the Ministry cited as an example the recent importation by [the Applicant] of alcoholic beverages and cigarettes under custom release No. 91/243. The Executive Secretary has asked us to examine the matter." On 24 October 1991, the Applicant sent his comments on the draft report. On 29 October 1991, the Importation Committee submitted its final report to the Executive Secretary. On 18 December 1991, the Executive Secretary wrote to the Applicant, listing his import of alcoholic bev-

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erages and cigarettes during various periods in 1990 and 1991, with the comment that these importations "... which were in excess of the ECLAC limits and with partial and no prior internal requests, are viewed as severe deviations from the ECLAC rules... [and] appear to demonstrate repetitive and deliberate disregard on your part of the ECLAC rules established by the Executive Secretary with respect to duty-free importation privileges. They also appear to show that you acted in concert with your wife, in that you both took advantage of the position of trust which she enjoyed as Shipping Clerk responsible for the secretarial work of the Importation Committee and for the preparation of ECLAC's customs clearance forms ..." The letter also referred to the import of a 29" TV set as "deviating from the internal ECLAC importation rules in (i) exceeding the TV size-limits provided in these rules; and (ii) effecting the importation without requesting the internal approval required under the rules." On 24 January 1992, the Applicant submitted his response to the allegations, portions of which read as follows: ".. .3. I have never purposefully tried to circumvent the regulations and procedures of the Committee, either on my own or through my wife, nor have I ever imported or tried to import any items which I believed I would be forbidden to import by the Committee, as exceptions are granted to the internal regulations so long as the quotas dictated by the Chilean Government are respected. On the three occasions in which I requested an import over the ECLAC internal limits, I had no reason to believe I could not have obtained an exception from the Committee for the imports ... .. .9. To understand why I paid so little attention to the submission of revised requests for import, I believe it is important to state for the record that an 'informal' set of rules or practice has developed and grown around the 'formal' internal rules of the Import Committee. One aspect of this 'informal' system is the 'borrowing' of the unused or under-used quotas of other international staff members for the purpose of keeping the internal limits set by the 'formal' internal rules of the Committee, at least on paper. .. .25. In sum, I regret not having been as careful as I should have been in ensuring that any requests for the importation of goods was submitted to the Committee. All the requests were dutifully entered in my file by the Secretary of the Committee (my wife), with no attempt made to keep requests 'off the record'... Despite the fact that I was not as careful as I should have been in following up re-

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vised requests, or asking for exceptions when I should have, the reasons were poor planning and lack of attention, not any purposeful manipulation of records or any attempt made to circumvent the Committee." On 27 February 1992, the Office of Human Resources Management at Headquarters informed the Executive Secretary of the Secretary General's decision to refer the allegations of misconduct to a Joint Disciplinary Committee (JDC). On 6 April 1992, the Applicant was so informed. The JDC adopted its report on 19 June 1992. It concluded and recommended as follows: "IV. Conclusions 11. ... the Panel finds that the importations ... did indeed violate internal ECLAC regulations in the manner specified and that the general charge ... has been substantiated. 12. The Panel takes note of the following mitigating circumstances: (a) There is no evidence that the staff member sought to profit monetarily by his acts; on the contrary, there is reason to believe that the staff member is often disorganized and forgetful, and that these traits, coupled with a lack of attention to detail, were contributory factors. (b) Evidence put forward during the hearings regarding the practice of'quota swapping' or 'quota gifting' would appear to support the view that the staff member might conceivably have chosen to import under another staff member's quota if he had deliberately set out to exceed his own quota. (c) The staff member appears to have relied heavily upon his wife to follow the required procedures. This attitude is all the more understandable in view of the fact that his wife could reasonably be expected to know exactly what steps were required, since her official duties included maintaining an updated file on each staff member's importations, comparing import request forms submitted by staff against the above-mentioned file to ensure that they remained within the established quotas, preparing and processing documentation relating to such imports for the approval of the ECLAC Import Committee, and preparing and submitting the corresponding documentation for the approval of the Ministry of Foreign Affairs of Chile. In this connection, the Panel also notes, however, that the import privileges—and, hence, the responsibility of ensuring that those privileges were not abused—were the staff member's, not his wife's; therefore, the staff member's reliance on his wife in this connection does not exempt him from a substantial degree of responsibility in the matter.

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13. The Panel also takes note of the following aggravating circumstances: (a) The staff member appears to have taken advantage of his wife's particular position within the Organization to place himself above the rules governing staff import privileges. (b) The reiterative nature of the infringements of the ECLAC rules concerning import privileges forms a pattern which strongly supports the contention that the staff member has exhibited a deliberate disregard for those rules ... V. Recommendations 14. In the light of the above considerations, the Panel finds that the staff member took advantage of his wife's position in the Organization to infringe the internal ECLAC regulations governing the use of import privileges and therefore recommends that the Secretary-General issue a written censure and that the staff member be fined US$750." On 3 August 1992, the Under-Secretary-General for Administration and Management transmitted the JDC report to the Applicant and informed him as follows: "The Secretary-General. . . has concluded that your conduct constituted a serious violation of the UN standards of conduct and integrity and was of such a nature as to bring the Organization into disrepute in the host country. The Secretary-General has given careful consideration to the mitigating and aggravating circumstances listed by the Committee. He has also taken into account the fact that, at all relevant times, you were Chief of Personnel in ECLAC and that, as such, you must be held to standards of conduct commensurate with your rank and responsibilities. Pursuant to the Secretary-General's discretionary authority to impose an appropriate disciplinary measure, the Secretary-General has decided to demote you under staff rule 110.3(a)(vi) to the first step of the prior grade, with a two-year deferment of eligibility for within-grade increment, under staff rule 110.3(a)(iii) effective from the date of this letter." On 29 June 1993, the Applicant filed with the Tribunal the application referred to earlier. Whereas the Applicant's principal contentions are: 1. No act has occurred that may be considered as unsatisfactory conduct as defined by United Nations staff rule 110.1, merely because the Applicant did not invariably follow internal ECLAC importation rules. Internal ECLAC rules are not part of the United Nations Staff Rules.

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2. There is no evidence to confirm the statements of the Respondent that the host Government ever complained about the Applicant, verbally or in writing. The Applicant never exceeded the limits of duty-free importations authorized by the Government, and any communication from the Government concerning the Applicant should have been shown to him in accordance with administrative instruction ST/AI/292 on handling adverse material. Whereas the Respondent's principal contentions are: 1. Establishment of internal duty-free importation rules for ECLAC officials was within the authority of the Executive Secretary. 2. Repetitive and deliberate disregard by the Applicant of these rules constituted conduct which fell short of the highest standards of integrity required from staff members under the Charter. That misconduct justified imposition of a disciplinary measure. 3. The Secretary-General's decision to demote the Applicant, with a two-year deferment of eligibility for within-grade increment, and to refuse to accept the JDC's recommendation for a written censure and a fine was a valid exercise of his discretion to impose a suitable disciplinary measure in the light of his assessment of the misconduct. The Tribunal, having deliberated from 18 October to 11 November 1994, now pronounces the following judgement: I. While the facts in this case are not in dispute, there is controversy regarding every other aspect. The Applicant asserts that whatever he did, even if wrong, was done in good faith and without any intention of violating the norms of importation for duty-free goods. The Respondent, on the other hand, sees a systematic pattern of wrong-doing in the Applicant's activities. The Applicant claims that he did nothing to disregard the laws of Chile, while the Respondent insists that the Applicant was obliged to observe scrupulously the provisions promulgated by ECLAC, having accepted them as terms of his appointment. The Applicant contends that the complaint of the Government of Chile, if in fact it was made, related to other importations by ECLAC staff. There was no ground for any objection to the imports made by the Applicant. Finally, the Applicant considers that the procedure followed in punishing him was flawed in many respects and showed a prejudice on the part of his supervisor. The Respondent seems to hold that, far from this being so, much of the trouble was due to the implicit trust placed in the Applicant's wife, who was responsible for obtaining clearance for the Applicant's requests for duty-free imports. There are also other contradictions in the views of the parties. II. The Tribunal notes that the Joint Disciplinary Committee (JDC) examined with care all aspects of the conflicting claims and counter-claims. It concluded that the Applicant was delinquent in his activi-

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ties, that he sometimes imported goods much in excess of his entitlement, that at other times he did not apply for permission to import at all and that in still other instances, having obtained permission, he then imported more than had been permitted. In the circumstances, the Tribunal sees no need to re-examine the facts already scrutinized by the JDC. It will confine its judgement to some of the legal issues raised by the parties and to the question of whether the action taken by the Respondent was justified. III. The first legal issue is whether the Applicant was bound to comply with the rules made by ECLAC for the importation of goods, rather than by the standards set forth by the Government of Chile. The Applicant contends that inasmuch as the rules promulgated by ECLAC were not formally approved by the General Assembly of the United Nations, they could not be considered as part of the StaffRules and Regulations, and therefore the procedures for disciplinary action under Chapter X of these Rules and Regulations could not be applied. At the same time, the evidence shows that the Applicant was aware of the system established by ECLAC to control the import of duty-free goods and that the Applicant made efforts to adhere to the requirements of this system, despite the JDC's impression that the Applicant was "often disorganized and forgetful". Staff rule 110.1 prescribes that a staff member is to "comply with his or her obligations under the Charter of the United Nations, the Staff Regulations and StaffRules and other relevant administrative issuances." The Tribunal has little doubt that the "Reglamento de Importation" introduced by ECLAC is such a relevant issuance, irrespective of whether or not it was pursuant to an agreement between the Government of Chile and ECLAC. The Applicant cannot escape the obligations imposed by the ECLAC internal regulations by arguing that they were not approved directly by the General Assembly. Subsidiary organs frequently have their own rules and regulations, which are applicable to all their staff members, provided, of course, that they are made known in advance. There is no doubt in this case that the Applicant knew what was expected of him and did in fact generally follow the regulations; when he did not or could not or would not, he apologized or tried to explain away such lapses. IV. In these circumstances, the Tribunal finds that any staff member of ECLAC is bound by ECLAC regulations and cannot take shelter, when accused of violating these regulations, by arguing that his actions did not violate the terms of an agreement between ECLAC and the Government of Chile. The Tribunal notes, however, that the Respondent's contention that the Applicant had, by his activities, strained relations between ECLAC and the Government of Chile appears not to be altogether well founded. For this reason, the Tribunal has some hesitation in accepting that the Applicant's conduct was, by itself, of such a nature "as to bring the

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Organization into disrepute in the host country." The record does not adequately support this conclusion. It is clear to the Tribunal that the infringements complained of by the Government affected a much wider circle of people and were not confined to the Applicant. Hence, the Tribunal does not consider it appropriate that the Applicant's personnel file should contain any reference to the Applicant's actions as having brought the Respondent into disrepute with the host government. V. In respect of the charges brought against him, the Applicant offers some explanation for his actions. He contends that they were guided by the common practice of "quota swapping", and of the retroactive approval of requests. He further maintains that his actions were necessitated by the special requirements he had for alcohol, cigarettes, etc., for social occasions he was organizing. Despite the evidence he submits in support of his contentions, the Tribunal cannot accept, as justification for any proven wrong-doing on the part of the Applicant, his argument that other staff members could have been equally remiss in importing duty-free goods. VI. The Applicant alleges that in at least one instance, he was not informed in a timely manner that disciplinary action against him was being contemplated. He also claims that his immediate supervisor (who was a member of the Importation Committee) adopted a hostile attitude towards him, even in the early stages of the investigation. The Tribunal notes that but for the co-operation between the Applicant and his wife, some of the wrong-doings which occurred might have been avoided. The record indicates that the Executive Secretary of ECLAC, who signed the internal approval forms for importation, relied on the Applicant's wife, who was both the shipping clerk and the secretary to the Importation Committee and trusted, without his own documentary verification, that the importation documentation presented to him by her for his signature, conformed to the internal approval forms. The evidence shows that the Applicant, far from being a victim of prejudice or of procedural and other flaws, benefited from the procedural laxity and the trust enjoyed by his wife. VII. Finally, the Tribunal turns to consideration of whether the Respondent's decision to demote the Applicant to the first step of his prior grade, with a two-year deferment of eligibility for within-grade increment, which deviated from the milder recommendation of the JDC, was consistent with his discretionary powers. In Judgement No. 479: Caine (1990), the Tribunal held: "The Respondent is not required to establish beyond any reasonable doubt a patent intent to commit the alleged irregularities, or that the Applicant was solely responsible for them. The Tribunal's review of such cases is limited to determining whether the Secretary-

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General's action was vitiated by any prejudicial or extraneous factors, by significant procedural irregularity, or by a significant mistake of fact." (See also Judgements No. 424, Ying and No. 425, Bruzual) In the present case, the Tribunal has not found any evidence to suggest that the Secretary-General was influenced by any prejudicial or extraneous factors. Once the Secretary-General decided, on the basis of such facts as were available to him, that the Applicant's conduct violated U.N. standards of integrity, he was free to decide what penalty under staff rule 110.3(a) would be appropriate. VIII. In the light of the foregoing, the Tribunal (i) Decides that the Respondent should remove from the Applicant's personnel file any conclusion that his action brought the Respondent into disrepute with the host Government. (ii) Rejects all other pleas of the Applicant. (Signatures) Samar SEN

President Mayer GABAY

Member New York, 11 November 1994

Mikuin Leliel BALANDA

Member R. Maria VICIEN-MILBURN

Executive Secretary

Appendix TEXT OF THE MAIN STATUTORY PROVISIONS AND RULES REFERRED TO IN JUDGEMENTS Nos. 634 to 687 NOTE—The provisions published in the present appendix are quoted in the version and under the numbers inforce at the time of their application in thejudgements concerned. The numbers of these judgements are given in square brackets after the text of each provision. Provisions which are quoted verbatim or adequatley described in the judgements themselves, or which are referred to only by the parties in their contentions, are not included in this appendix.

I—CHARTER OF THE UNITED NATIONS Article 8 The United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs. [Judgement Nos. 642, 671.] Article 101 1. The staff shall be appointed by the Secretary-General under regulations established by the General Assembly. 2. Appropriate staffs shall be permanently assigned to the Economic and Social Council, the Trusteeship Council, and, as required, to other organs of the United Nations. These staffs shall form a part of the Secretariat. 3. The paramount consideration in the employment of the staff and in the determination of the conditions of service shall be the necessity of securing the highest standards of efficiency, competence, and integrity. Due regard shall be paid to the importance of recruiting the staff on as wide a geographical basis as possible. [Judgements Nos. 641,671,673.]

II—STATUTE OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL Article 2 1. The Tribunal shall be 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. The words "contracts" and "terms of appointment" include all pertinent regulations and rules in force at the time of alleged non-observance, including the staff pension regulations. 2. The Tribunal shall be open: (a) To any staff member of the Secretariat of the United Nations even after his employment has ceased, and to any person who has succeeded to the staff member's rights on his death;

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(b) To any other person who can show that he is entitled to rights under any contract or terms of appointment, including the provisions of staff regulations and rules upon which the staff member could have relied. 3. In the event of a dispute as to whether the Tribunal has competence, the matter shall be settled by the decision of the Tribunal. 4. The Tribunal shall not be competent, however, to deal with any applications where the cause of complaint arose prior to I January 1950. [Judgements Nos. 650, 670,672.] Article 7 1. An application shall not be receivable unless the person concerned has previously submitted the dispute to the joint appeals body provided for in the staff regulations and the latter has communicated its opinion to the Secretary-General, except where the Secretary-General and the applicant have agreed to submit the application directly to the Administrative Tribunal. 2. In the event of the joint body's recommendations being favourable to the application submitted to it, and insofar as this is the case, an application to the Tribunal shall be receivable if the Secretary-General has: (a) Rejected the recommendations; (6) Failed to take any action within the thirty days following the communication of the opinion; or (c) Failed to carry out the recommendations within the thirty days following the communication of the opinion. 3. In the event that the recommendations made by the joint body and accepted by the Secretary-General are unfavourable to the applicant, and insofar as this is the case, the application shall be receivable, unless the joint body unanimously considers that it is frivolous. 4. An application shall not be receivable unless it is filed within ninety days reckoned from the respective dates and periods referred to in paragraph 2 above, or within ninety days reckoned from the date of the communication of the joint body's opinion containing recommendations unfavourable to the applicant. If the circumstance rendering the application receivable by the Tribunal, pursuant to paragraphs 2 and 3 above, is anterior to the date of announcement of the first session of the Tribunal, the time limit of ninety days shall begin to run from that date. Nevertheless, the said time limit on his behalf shall be extended to one year if the heirs of a deceased staff member or the trustee of a staff member who is not in a position to manage his own affairs, file the application in the name of the said staff member. 5. In any particular case the Tribunal may decide to suspend the provisions regarding time limits. 6. The filing of an application shall not have the effect of suspending the execution of the decision contested. 7. Applications may be filed in any of the five official languages of the United Nations. [Judgements Nos. 642,646, 657.] Article 9 2. Should the Tribunal find that the procedure prescribed in the Staff Regulations or Staff Rules has not been observed, it may, at the request of the Secretary-General and prior to the determination of the merits, order the case remanded for institution or correction of the required procedure. Where a case is remanded, the Tribunal may order the payment of compensation, not to exceed the equivalent of three months' net base salary, to the applicant for such loss as may have been caused by the procedural delay. ... [Judgement No. 675.]

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Administrative Tribunal of the United Nations III—RULES OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL Article 18

1. If, in the course of the deliberations, the Tribunal finds that the case be remanded in order that the required procedure may be instituted or corrected under article 9, paragraph 2, of the Statute, it shall notify the parties accordingly. 2. The Tribunal shall decide on the substance of the case if, on the expiry of the time limit of two days reckoned from the date of this notification, no request for a remand has been made by the Secretary-General. [Judgement No. 675.]

IV—STAFF REGULATIONS OF THE UNITED NATIONS Regulation 1.2 Staff members are subject to the authority of the Secretary-General and to assignment by him to any of the activities or offices of the United Nations. They are responsible to him in the exercise of their functions. The whole time of staff members shall be at the disposal of the Secretary-General. The Secretary-General shall establish a normal working week. [Judgement No. 670.]

Regulation 3.1 Salaries of staff members shall be fixed by the Secretary-General in accordance with the provisions of annex I to the present Regulations. [Judgement No. 670.]

Regulation 4.1 As stated in Article 101 of the Charter, the power of appointment of staff members rests with the Secretary-General. Upon appointment each staff member shall receive a letter of appointment in accordance with the provisions of annex II to the present Regulations and signed by the Secrerary-General or by an official in the name of the Secretary-General. [Judgement No. 673.]

Regulation 4.2 The paramount consideration in the appointment, transfer or promotion of the staff shall be the necessity for securing the highest standards of efficiency, competence and integrity. Due regard shall be paid to the importance of recruiting the staffer as wide a geographical basis as possible. [Judgement No. 673.]

Regulation 4.5 (a) Appointment of Under-Secretaries-General and of Assistant Secretaries-General shall normally be for a period of five years, subject to prolongation or renewal. Other staff members shall be granted either permanent or temporary appointments under such terms and conditions consistent with the present Regulations as the Secretary-General may prescribe; (6) The Secretary-General shall prescribe which staff members are eligible for permanent appointments. The probationary period for granting or confirming a permanent appointment shall normally not exceed two years, provided that in individual cases the Secretary-General may extend the probationary period for not more than one additional year. [Judgement No. 636.]

Regulation 8.1 (a) The Secretary-General shall establish and maintain continuous contact and communication with the staff in order to ensure the effective participation of the staff in identifying, examining and resolving issues relating to staff welfare, including conditions of work, general conditions of life and other personnel policies;

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(b) Staff representative bodies shall be established and shall be entitled to initiate proposals to the Secretary-General for the purpose set forth in subparagraph (a) above. They shall be organized in such a way as to afford equitable representation to all staff members, by means of elections that shall take place at least biennially under electoral regulations drawn up by the respective staff representative body and agreed to by the Secretary-General; (c) Cancelled. [Judgement No. 670.]

Regulation 9.1 (a) The Secretary-General may terminate the appointment of a staff member who holds a permanent appointment and whose probationary period has been completed, if the necessities of the service require abolition of the post or reduction of the staff, if the services of the individual concerned prove unsatisfactory, or if he or she is, for reasons of health, incapacitated for further service; The Secretary-General may also, giving his reasons therefor, terminate the appointment of a staff member who holds a permanent appointment: (i) If the conduct of the staff member indicates that the staff member does not meet the highest standards of integrity required by Article 101, paragraph 3, of the Charter; (ii) If facts anterior to the appointment of the staff member and relevant to his suitability come to light that, if they had been known at the time of his appointment, should, under the standards established in the Charter, have precluded his appointment; No termination under subparagraphs (i) and (ii) shall take place until the matter has been considered and reported on by a special advisory board appointed for that purpose by the Secretary-General; Finally, the Secretary-General may terminate the appointment of a staff member who holds a permanent appointment if such action would be in the interest of the good administration of the Organization and in accordance with the standards of the Charter, provided that the action is not contested by the staff member concerned; .. .[Judgement No. 637.]

Regulation 9.4 The Secretary-General shall establish a scheme for the payment of repatriation grants within the maximum rates and under the conditions specified in annex IV to the present Regulations. [Judgement No. 646.]

Regulation 10.2 The Secretary-General may impose disciplinary measures on staff members whose conduct is unsatisfactory. He may summarily dismiss a member of the staff for serious misconduct. [Judgements Nos. 641,668,673.]

Annex I 1. The Secretary-General shall fix the salary scales for staff members in the General Service category and the salary or wage rates for manual workers, normally on the basis of the best prevailing conditions of employment in the locality of the United Nations office concerned, provided that the Secretary-General may, where he deems it appropriate, establish rules and salary limits for payment of a non-resident's allowance to General Service staff members recruited from outside the local area. ... [Judgement No. 670.]

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Annex III

TERMINATION

INDEMNITY

Staff members whose appointments are terminated shall be paid an indemnity in accordance with the following provisions: (a) Except as provided in paragraphs (b), (c) and (e) below and in regulation 9.3(b), the termination indemnity shall be paid in accordance with the following schedule: Months of gross salary, adjusted by movements of the weighted average of post adjustments, less staff assessment, where applicable" or Months of pensionable remuneration less staff assessment, where applicableb

Completed years of Service

Less than 1 ... . 1 . 2 . 3 4 . 5 6 . 7 8 9 10 11 12 . 13 . 14 1 5 or more . . . . a

Permanent appointments

. . . .

Not applicable Not applicable 3 3 4 5

.

. .

6 7 8 9 9.5 10 10.5 11 11 5 12

Temporary Appointments which are not for a fixed term

Nil 1 1 2 3 4 5 6 7 9 9.5 10 10.5 11 11.5 12

Temporary appointments for a fixed term exceeding six months

One week for each month of uncompleted service subject to a minimum of six weeks' and a maximum of three months' indemnity pay 3 5 7 9 9.5 10 10.5 11 11.5 12

for staff in the Professional and higher categories and in the Field Service category. For staff in the General Service and related categories.

b

(b) A staff member whose appointment is terminated for reasons of health shall receive an indemnity equal to the indemnity provided under paragraph (a) of the present annex reduced by the amount of any disability benefit that the staff member may receive under the Regulations of the United Nations Joint Staff Pension Fund for the number of months to which the indemnity rate corresponds; (c) A staff member whose appointment is terminated for unsatisfactory services or who for disciplinary reasons is dismissed for misconduct other than by summary dismissal may be paid, at the discretion of the Secretary-General, an indemnity not exceeding one half of the indemnity provided under paragraph (a) of the present annex; (d) No indemnity payments shall be made to: A staff member who resigns, except where termination notice has been given and the termination date agreed upon;

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A staff member who has a temporary appointment which is not for a fixed term and which is terminated during the first year of service; A staff member who has a temporary appointment for a fixed term which is completed on the expiration date specified in the letter of appointment; A staff member who is summarily dismissed; A staff member who abandons his post; A staff member who is retired under the Regulations of the United Nations Joint Staff Pension Fund; (e) Staff members specifically engaged for conference and other shortterm service or for service with a mission, as consultants or as experts, and staff members who are locally recruited for service in established offices away from Headquarters may be paid termination indemnity if and as provided in their letters of appointment. [Judgements Nos. 646, 647, 668,674.]

Annex IV REPATRIATION GRANT In principle, the repatriation grant shall be payable to staff members whom the Organization is obliged to repatriate. The repatriation grant shall not, however, be paid to a staff member who is summarily dismissed. Staff members shall be entitled to a repatriation grant only upon relocation outside the country of the duty station. Detailed conditions and definitions relating to eligibility and requisite evidence of relocation shall be determined by the Secretary-General. The amount of the grant shall be proportional to the length of service with the United Nations, as follows: Staff member with neither a spouse nor dependent child at the time of separation Years of continuous service away from home country

Staff member with a spouse or dependent child at time of separation

Professional and higher categories

General Service category

Weeks of gross salary, adjusted by movements of the weighted average of post adjustments, less staff assessment, where applicablea or Weeks of pensionable remuneration less staff assessment, where applicableb

1 2 3 4 5 6 7 8 9 10 11 12 or more a

4 8 10 12 14 16 18 20 22 24 26 28

3 5 6 7 8 9 10 11 13 14 15 16

For staff in the Professional and higher categories and in the Field Service category. For staff in the General Service and related categories. [Judgement No. 646.]

b

2 4 5 6 7 8 9 10 11 12 13 14

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Administrative Tribunal of the United Nations V—STAFF RULES OF THE UNITED NATIONS Rule 103.2 SALARY SCALES FOR GENERAL SERVICE PERSONNEL

The Secretary-General shall set the salary scales and conditions of salary increments for staff members in the General Service category at each established office, and these rates and conditions shall be published in the appendix B to these Rules applicable to the duty station. [Judgement No. 670.]

Rule 104.3 RE-EMPLOYMENT (a) A former staff member who is re-employed shall either be given a new appointment or, if he or she is re-employed within 12 months of being separated from service or within any longer period following retirement on disability under the Joint Staff Pension Fund Regulations, he or she may be reinstated in accordance with the provisions of paragraph (b) hereunder. If the former staff member is given a new appointment, its terms shall be fully applicable without regard to any former period of service. If the former staff member is reinstated, it shall be so stipulated in his or her letter of appointment. ... [Judgement No. 634.]

Rule 104.7 INTERNATIONAL RECRUITMENT (a) Staff members other than those regarded under rule 104.6 as having been locally recruited shall be considered as having been internationally recruited. The allowances and benefits in general available to internationally recruited staff members include: payment of travel expenses upon initial appointment and on separation for themselves and their spouses and dependent children, removal of household effects, non-resident's allowance, home leave, education grant and repatriation grant. (b) Members of the Field Service and staff members recruited specifically for mission service shall not be eligible for non-resident's allowance or removal of household effects. (c) A staff member who has changed his or her residential status in such a way that he or she may, in the opinion of the Secretary-General, be deemed to be a permanent resident of any country other than that of his or her nationality may lose entitlement to non-resident's allowance, home leave, education grant, repatriation grant and payment of travel expenses upon separation for the staff member and his or her spouse an independent children and removal of household effects, based upon place of home leave, if the Secretary-General considers that the continuation of such entitlement would be contrary to the purposes for which the allowance or benefit was created. Conditions governing entitlement to international benefits in the light of residential status are shown in the appendix B to these Rules applicable to the duty station. [Judgement No. 670.]

Rule 108.1 STAFF REPRESENTATIVE BODIES Definition. The term "staff representative bodies", as used in the present chapter of the Staff Rules, shall be deemed to include staff councils, as referred to in other chapters of the Rules, as well as other corresponding staff representative bodies established in accordance with staff regulation 8.1(b).

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(a) Staff representative bodies shall be established at the following duty stations: Addis Ababa, Baghdad, Bangkok, Geneva, Jerusalem, Nairobi, New York, Santiago and Vienna. Staff representative bodies may also be established at other duty stations, each of which may affiliate with a staff representative body at one of the duty stations specified above. Staff members serving in duty stations where no staff representative body exists may decide to be represented through a staff representative body at one of the specified duty stations. (b) Each member of the staff may participate in elections to a staff representative body, and all staff serving at a duty station where a staff representative body exists shall be eligible for election to it, subject to any exceptions as may be provided in the electoral regulations drawn up by the staff representative body concerned and meeting the requirements of regulation 8.1 (b). (c) Polling officers selected by the staff shall conduct the election of the members of each staff representative body, on the basis of the electoral regulations of the staff representative body concerned, in such a way as to ensure the complete secrecy and fairness of the vote. The polling officers shall also conduct other elections of staff members as required by the Staff Regulations or Staff Rules. (d) The staff representative bodies shall be entitled to effective participation through their duly elected executive committees, in identifying, examining and resolving issues relating to staff welfare, including conditions of work, general conditions of life and other personnel policies, and shall be entitled to make proposals to the Secretary-General on behalf of the staff. (e) In accordance with the principle of freedom of association, staff members may form and join associations, unions or other groupings. However, formal contact and communication on the matters referred to in paragraph (d) shall be conducted at each duty station through the executive committee of the staff representative body, which shall be the sole and exclusive representative body for such purpose. (f) General administrative instructions or directives on questions within the scope of paragraph (d) shall be transmitted in advance, unless emergency situations make this impracticable, to the executive committees of the staff representative bodies concerned for consideration and comment before being placed in effect. [Judgements Nos. 670, 679.] Rule 108.2 JOINT STAFF-MANAGEMENT MACHINERY (a) The joint staff-management machinery provided for in regulation 8.2 shall consist of: (i) Joint advisory committees or corresponding staff-management bodies, at designated duty stations, normally composed of not less than three and not more than seven staff representatives and an equal number of representatives of the Secretary-General; (ii) A Secretariat-wide joint staff-management body composed of equal numbers of representatives of the staff and of representatives of the Secretary-General. (b) The President of the staff-management bodies referred to in paragraph (a) above shall be selected by the Secretary-General from a list proposed by the staff representatives. (c) Instructions or directives embodying recommendations made by the bodies referred to in paragraph (a) above shall be regarded as having satisfied the requirements of rules 108.1(d)and(f). (d) The joint staff-management bodies referred to in paragraph (a) shall establish their own rules and procedures.

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(e) The Secretary-General shall designate secretaries of the joint staff-management bodies referred to in paragraph (a) and shall arrange for such services as may be necessary for their proper functioning. [Judgement No. 679.]

Rule 109.1 SPECIAL ADVISORY BOARD, DEFINITION OF TERMINATION, AND ABOLITION OF POSTS AND REDUCTION OF STAFF (c) Abolition of posts and reduction of staff (i) Except as otherwise expressly provided in paragraph (b) below, if the necessities of the service require abolition of a post or reduction of the staff, and subject to the availability of suitable posts in which their services can be effectively utilized, staff members with permanent or regular appointments shall be retained in preference to those on all other types of appointments, and staff members with probationary appointments shall be retained in preference to those on fixed-term or indefinite appointments, provided that due regard shall be had in all cases to relative competence, to integrity and to length of service. Due regard shall also be had to nationality in the case of staff members with not more than five years of service and in the case of staff members who have changed their nationality within the preceding five years when the suitable posts available are subject to the principle of geographical distribution. (ii) a. The provisions of subparagraph (i) above in so far as they relate to locally recruited staff members shall be deemed to have been satisfied if such locally recruited staff members have received consideration for suitable posts available at their duty stations. b. Staff members specifically recruited for service with a subsidiary organ of the United Nations which enjoys a special status in matters of appointment under a resolution of the General Assembly or as a result of an agreement entered into by the Secretary-General, such as the United Nations Children's Fund, the United Nations Development Programme, the United Nations Environment Programme, the United Nations Institute for Training and Research or the United Nations University, have no entitlement under this rule for consideration for posts outside the organ for which they were recruited. [Judgements Nos. 642, 679,680.]

Rule 109.3 NOTICE OF TERMINATION (b) A staff member whose temporary appointment is to be terminated shall be given not less than thirty days' written notice of such termination or such notice as may otherwise be stipulated in his or her letter of appointment. ... [Judgement No. 674.]

Rule 110.1 MISCONDUCT Failure by a staff member to comply with his or her obligations under the Charter of the United Nations, the Staff Regulations and Staff Rules or other relevant administrative issuances, or to observe the standards of conduct expected of an international civil servant, may amount to unsatisfactory conduct within the meaning of staff regulation 10.2, leading to the

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institution of disciplinary proceedings and the imposition of disciplinary measures for misconduct. [Judgements Nos. 663, 687.] Rule 110.3 DISCIPLINARY MEASURES Disciplinary measures may take one or more of the following forms: Written censure by the Secretary-General; Loss of one or more steps-in-grade; Deferment, for a specified period, of eligibility for within-grade increment; Suspension without pay; Fine; Demotion; Separation from service, with or without notice or compensation in lieu thereof, notwithstanding rule 109.3; (viii) Summary dismissal. (b) The following measures shall not be considered to be disciplinary measures, within the meaning of this rule: (i) Reprimand, written or oral, by a supervisory official; (ii) Recovery of monies owed to the Organization; (iii) Suspension pursuant to rule 110.2. [Judgements Nos. 668, 674, 687.] (a) (i) (ii) (iii) (iv) (v) (vi) (vii)

Rule 110.4 DUE PROCESS (b) No staff member shall be subject to disciplinary measures until the matter has been referred to a Joint Disciplinary Committee for advice as to what measures, if any, are appropriate, except that no such advice shall be required: (i) If referral to the Joint Disciplinary Committee is waived by mutual agreement of the staff member concerned and the Secretary-General; (ii) In respect of summary dismissal imposed by the Secretary-General in cases where the seriousness of the misconduct warrants immediate separation from service. . . . [Judgement No. 674.] Rule 111.2 APPEALS (a) A staff member wishing to appeal an administrative decision, pursuant to staff regulation 11.1, shall, as a first step, address a letter to the Secretary-General, requesting that the administrative decision be reviewed; such a letter must be sent within two months from the date the staff member received notification of the decision in writing. The Secretary-General, in reviewing the administrative decision in question, and with the consent of the staff member, may seek the assistance of a chairperson or member of the appropriate Joint Appeals Board, to be designated by its presiding officer, with a view to reaching a conciliatory conclusion of the matter; this procedure is without prejudice to the right of the staff member to pursue an appeal through the procedure specified in the present rule. (i) If the Secretary-General replies to the staff member's letter, he or she may appeal against the answer within one month of the receipt of such reply;

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(ii) If the Secretary-General does not reply to the letter within one month in respect of a staff member stationed in New York, or elsewhere within two months, the staff member may appeal against the original administrative decision within one month of the expiration of the time-limit specified in this subparagraph for the Secretary-General's reply. . . . [Judgement No. 645.]

Rule 112.3 FINANCIAL RESPONSIBILITY

Any staff member may be required to reimburse the United Nations either partially or in full for any financial loss suffered by the United Nations as a result of the staff member's negligence or of his or her having violated any regulation, rule or administrative instruction. [Judgement No. 663.]

Rule 209.8 CONDITIONS GOVERNING PAYMENT

OF REPATRIATION GRANT Payment of repatriation grant under regulation 9.4 and annex IV to the Staff Regulations shall be subject to the following conditions and definitions: (a) "Obligation to repatriate" as used in annex IV to the Staff Regulations shall mean obligation to return project personnel and their eligible family members, upon separation, at the expense of the United Nations, to a place outside the country of the duty station. (b) In lieu of the notice period, the Secretary-General may authorize compensation calculated on the salary with post adjustment, dependency benefits and repatriation grant which the individual would have received had the date of termination been at the end of the notice period. [Judgement No. 646.]

VI—FINANCIAL RULES OF THE UNITED NATIONS Rule 114.1 PERSONAL RESPONSIBILITY

Every official of the United Nations is responsible to the Secretary-General for the regularity of the actions taken by him or her in the course of his or her official duties. Any official who takes any action contrary to these Financial Rules, or to the administrative instructions issued in connection therewith, may be held personally responsible and financially liable for the consequences of such action. [Judgement No. 663.]

VII—AREA STAFF REGULATIONS OF THE UNITED NATIONS RELIEF AND WORKS AGENCY FOR PALESTINE REFUGEES IN THE NEAR EAST Regulation 9.1 The Commissioner-General may at any time terminate the appointment of any staff member if, in his opinion, such action would be in the interest of the Agency. [Judgement No. 683.]

Regulation 10.3 The Commissioner-General may summarily dismiss a staff member for serious misconduct. [Judgement No. 650.]

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VIII—AREA STAFF RULES OF THE UNITED NATIONS RELIEF AND WORKS AGENCY FOR PALESTINE REFUGEES IN THE NEAR EAST Staff Rule 110.2 SUSPENSION PENDING INVESTIGATION If a charge of misconduct is made against a staff member (for the purposes of paragraph 1 of rule 110.1) and the Commissioner-General considers that the charge is "prima facie" well founded or that the staff member's continuance in office pending an investigation of the charge would prejudice the interests of the Agency, then the staff member may be suspended from duty, with or without pay, pending investigation, the suspension being without prejudice to the rights of the staff member. [Judgement No. 683.]

IX—REGULATIONS OF THE UNITED NATIONS JOINT STAFF PENSION FUND Article 24 RESTORATION OF PRIOR CONTRIBUTORY SERVICE (a) A former participant to whom a benefit under these Regulations, other than a disability benefit, has been or is being paid and who again becomes a participant after 1 January 1970, may, within one year of the re-commencement of his participation, elect to restore his prior contributory service in the Fund; the election may apply only to the totality of such service. (b) The prior contributory service in the Fund of a former participant to whom a benefit under these Regulations is due but has not been paid, or to whom a disability benefit has been or is being paid, and who again becomes a participant, shall be restored. (c) A beneficiary of the participant may make the election under (a) above, under the same conditions as a beneficiary under article 23 (b). (d) Restoration under (a) above shall be subject to receipt by the Fund of contributions in accordance with article 25(d). [Judgement No. 634.]

Article 28 ENTITLEMENT TO BENEFITS (a) A participant who is not eligible for a retirement benefit under article 29 or a disability benefit under article 34 may elect on separation to receive an early retirement benefit or a deferred retirement benefit or a withdrawal settlement if he satisfies the conditions of article 30, 31 or 32 respectively. (b) Retirement, early retirement and deferred retirement benefits shall be payable at periodic intervals for life. [Judgement No. 634.]

Article 33 DISABILITY BENEFIT (a) A disability benefit shall, subject to article 41, be payable to a participant who is found by the Board to be incapacitated for further service in a member organisation reasonably compatible with his abilities, due to injury or illness constituting an impairment to health which is likely to be permanent or of long duration. ... [Judgement No. 635.]

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X—ADMINISTRATIVE RULES OF THE UNITED NATIONS JOINT STAFF PENSION FUND SECTION F RESTORATION OF PRIOR CONTRIBUTORY SERVICE F.3 The participant shall make, or commence, payment of the amount within ninety days of the date of the notification by the secretary under rule F.2 above, either (a) In full in a lump sum; or (b) In equal monthly instalments, with interest, over a period no longer than half the length of the prior contributory service elected to be restored, provided that the total amount due shall be payable prior to the date of the participant's separation. F.4 (a) Payment shall be made, in accordance with the method selected by the participant under rule F.3 above, by remittance to the organisation within the time-limits applicable. (b) In the event of default in the payment of a lump sum or the first payment of an instalment, the right of the participant to restoration shall be deemed to be cancelled; in the event of default thereafter, the participant shall be given notice in writing by the secretary of the committee to effect payment within ninety days, failing which his right to restoration shall similarly be deemed to be cancelled. (c) A participant whose right to restoration is cancelled shall be refunded forthwith the payments which he has made, with accrued interest, and shall forfeit any further right to such restoration, ... [Judgement No. 685.]

BIBLIOGRAPHY Selected bibliography of books and articles on international civil service published in 1994 DECISIONS AND ADVISORY OPINIONS OF INTERNATIONAL TRIBUNALS Administrative Tribunal of the International Labour Organization Judgements No. 1301 to 1376. Geneva, 1994. World Bank Administrative Tribunal Decisions 136-140. World Bank Administrative Tribunal Reports 1994. Washington, 1994.

A AMERASINGHE, C.F.: The Law of the International Civil Service (as applied by International Administrative Tribunals), second revised edition, 2 vol. Oxford, Clarendon Press, 1994, LXVII + 659 p. and XXXIX + 543 p. AMERASINGHE, C.F.: Decisions of the World Bank Administrative Tribunal from 1981 to 1989: An Assessment, in International Law in an Evolving World, Montevideo, Fundacion de Cultura Universitaria, 1994.

C CHILDERS, Erskine and URQUHART, Brian: Renewing the United Nations System. Uppsala, Dag Hammarskjold Foundation, 1994,214 p.

D DUBOUIS, Louis:« Fonctionnaires et agents des Communautes europeennes. Commentaire des decisions rendus par le Tribunal de premiere instance et par la Cour de justice des Communautes europeennes de septembre 1989 a juillet 1993 ». Revue trimestrielle de droit europeen, No. 2, avril-juin 1994.

E EMANUELLI, Claude: « La convention sur la securite du personnel des Nations Unies et du personnel associe : des rayons et des ombres ». Revue generale de droit international public, 1994, 95:4, pp. 849-890.

p PONS RAFOLS, Francesco-Xavier: Los expertos y las personas que tienen relaciones oficiales con la ONU. Barelona, Promociones y Publicaciones Universitarias, 1994, 464 p.

R RUZIE, David: « Jurisprudence du Tribunal administratif des Nations Unies ». Annuaire francais de droit international, 40:503-522, 1994.

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RUZIE, David: "Jurisprudence du Tribunal administratif de 1'Organisation Internationale du Travail ». Annuaire francais de droit international, 40:523-554, 1994.

T TAVERNIER, Paul: L'annee des Nations Unies 24 decembre 1993-23 decembre 1994—problemes juridiques. Annuaire francais de droit international, 40:555-574, 1994.

INDEX TO JUDGEMENTS 634 TO 687

[References are made to judgements and to appropriate sections within the judgements]

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A

ABOLITION OF POST Abolition of post on grounds of redundancy 648:I-XV Finding that correct procedures were followed 648 :XV Obligation to do all reasonable efforts to find alternative post 648:XVI-XIX Priority of appointment to vacant posts for staff members whose posts have been abolished 680.-VI

ACQUIRED RIGHTS Alleged acquired right to reimbursement of income tax on lump sum received from the Pension Fund 634:V-VII General Assembly's concern for protecting rights of staff members serving on the date of a change in rules 634:IX-XIII Tribunal's jurisprudence on acquired rights (Judgement No. 237) 634:VI

ADMINISTRATIVE DECISIONS See RESCISSION OF ADMINISTRATIVE DECISIONS ADMINISTRATIVE INSTRUCTIONS Administrative instructions have same effect as staff rule CF/AI/1986-10 679:XIV ST/AI/273 677:111 ST/AI/293 679:VIII, XI-XII, XIV ST/AI/338 639:11, VI; 657:IV; 671 :VI, VIII, IX, XIX ST/AI/338/Add. 5 671:V, IX; 677:IV ST/AI/371 676:V, VII

671: VIII

ADMINISTRATIVE RULES OF THE UNITED NATIONS JOINT STAFF PENSION FUND Rule F.3 685:I-V Rule F.4 685 VI

ADVISORY PANEL ON PERSONNEL QUESTIONS See PERMANENT APPOINTMENTS AGREED TERMINATION Agreed termination/early retirement voluntarily accepted by Applicant 667:VI-IX Application submitted in violation of undertaking on agreed termination 667:IX

APPLICANTS Abbas, Mohammad Nayef 650:1 Abdala, Ali, et al. 670:1 Abdul Rahim, Iffat Fu'ad 684:1 Al Sha'bi, Hassan Abdulla 650:1 Al-Atraqchi, Mohammed Ali 659:1; 660:1; 661:1

455

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Al-Atraqchi, Mohammed Ali 676:1 Al-Kishali, Amir M.S. 643:1 Araim, Amer 675:1 Araim, Amer Salih 657:1; 658:1 Bakr, Daoud Nehar 650:1 Burtis, Farida Ghani 672:1 Camara, Ali 642:1 Chhatwal, Tarvinder Singh 637:1 Couderc, Janine 665:1 CoulibalySy 668:1 Cure, Daniel 687:1 Dabit, Costandi Awad 682:1 Daure, Bernard 677:1 Davidson, Gabrielle Elizabeth 635:1 Diatta, Mbaye 642:1 Dienne, Mamadou Makodou 642:1 El-Said, Ali 651:1 Essaied, Abderrazak 667:1 Pagan, Susan 679:1 Farid, Ghulan 641:1 Fussimanya-Reina, Montserrat 645:1 Gonda, Cyriaque 674:1 Gonzalez de German, Norma 665:1 Gourdon, Alain Andre Marie 656:1 Grinblat, Joseph Alfred 671:1 Gulati, Rajender Kumar 680:1 Habash, Abdallah Mohamad 655:1 Hayek, Mohammed Saleh 653:1 Horlacher, David E. 634:1 Hossain, S.M. Taifur 673:1 Hourani, Ibrahim Fu'ad 654:1 Kane, Abdou Salam 642:1 Khalil, Rimon Farah Elias 683:1 Khan, Shafiuddin 669:1 Kremer, Henri Julien 656:1 Leung-Ki, Fat-Chun 639:1 Loguinov, Evgueni 685:1 Lukas, Ellen 678:1 Manirakiza, Marc 663:1 Maqari, Ibtisam Musa 681:1 Marais, Suzanne, 665:1 Mi'ari, Eilan Mahmoud 650:1 Mourad, Mohamed Jalal 640:1 Noll-Wagenfeld, Meike Angelika 636:1 Pereyra, Dorilda Serafina 647:1 Potookian, Nicola 662:1 Purcell, Janine 665:1 Rebizov, Alexei Nikolayevitch 686:1 Sa'adiyeh, Muwaffaq Mahmoud 648:1 Shehadeh, Mohammad Husein 649:1 Soltes,Dusan 646:1 Sow, Demba 642:1 Su'oud, Sa'id Khaled 652:1 Tamim, Mahmoud Mohammed Said 650:1 Thabet, Mohammad Said 644:1

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Treggi, Gian Carlo 638:1 Treggi, Gian Carlo 664:1 Vorobiev, Petr Y. 666:1 Yasin, Khaled Ahmad 650:1

APPLICATIONS Award of costs 634:1; 635:1; 645:2; 647:1; 648:1; 652:1-2; 653:1-2; 654:1-2; 665:2; 667:2; 670:1; 673:1; 679:2; 681:1; 684:1 Award of disability benefit 635:1 Compensation: Damage resulting from irregularity in filling post at higher level 671:1-2 Damages suffered through action to terminate appointment 679:1; 682:1 -2; 683:1 Disruption of career and suffering inflicted on Applicant 663:1 Failure to carry out investigation on Applicant's allegations 676:2 Failure to give full and fair consideration for promotion 675:1; 677:1 Failure to implement Secretary-General's decision and Tribunal's judgement 678:1 Higher compensation in view of special circumstances 666:2 In lieu of retroactive reclassification 662:1 In lieu of specific performance 641:1 Injury and humiliation resulting from demotion 652:1 Injury and loss resulting from failure to reinstate 650:2; 684:1 Injury resulting from attacks on Applicant's integrity 638:2 Injury resulting from dismissal 654:1; 668:1-2; 673:1; 674:2 Injury resulting from non-renewal of fixed-term appointment 640:2 Injury resulting from transfer on demotion and separation from family 653:1-2 Injury sustained during cessation of service 648:1 Irregularities in reclassification procedure 645:2 Loss and hardship sustained through early retirement/agreed termination imposed on the Applicant 667:2 Losses sustained through disciplinary measures 655:2 Material and moral injuries resulting from dismissal 641:2; 681:2 Material and moral injuries resulting from non-renewal of appointment 642:1-4; 643:2 Non-selection for vacant post 644:2 Service-incurred injury 639:2 Suffering resulting from termination proceedings 649:1 Time elapsed since termination 651:1 Unreasonable delays in procedures 641:2 Wrong denial of consideration for vacant post 657:1-2; 658:2; 659:2; 660:1; 661:2 Considering period of cessation of service as special leave with pay 648:1 Consultation with staff representatives 670:1 -2 Declaration that Applicant fell victim to racial prejudice 639:1 Examination of methods of restructuring of Applicant's unit 639:1 Findings: Applicant was denied full and fair consideration for promotion 675:1; 677:1 Applicant was wrongly denied consideration for vacant post 657:1-2; 658:1; 659:1-2; 660:1; 661:1-2 Investigation on Applicant's allegations was not properly carried out 676:1 Non-selection of Applicant for vacant post was vitiated by denial of due pro cess 644:2 Secretary-General failed to implement his decision and Tribunal's judgement 678:1 Selection of another candidate for vacant post was improper 680:1

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Separation/termination decision was not legally valid 637:1 Vacancy Management System was illegally applied 644:1 Letter clearing Applicant of all charges 683:1 Method of calculating gross salary for purposes of pensionable remuneration 665:1 Order not to take action on Applicant's termination 679:1 Order to carry out investigation on Applicant's allegations 676:1-2 Order to reimburse income tax on lump sum received from the Pension Fund 634:1 Payment of back salary 666:2 Payment of repatriation grant 656:1-2 Granting of appointment until retirement age 663:1 Payment of repatriation grant in hard currency 646:1 Payment of termination indemnity 647:1; 668:1 Promotion at next opportunity 671:1 Promotion to be made retroactive 636:2 Reimbursement of Applicant's travel expenses on mission 638:1 Reimbursement of national income tax levied on salary 646:1 Reimbursement of shipment of personal effects 664:1 Reinstatement 640:2; 641:1; 642:1-4; 643:1; 649:1; 650:1; 653:1; 666:1-2; 668:1; 673:1; 674:1; 681:1; 683:1; 684:1; 686:1 Reinstatement or financial settlement 651:2 Remand to Classification Committee 645:1 Removal from Applicant's file of conclusion that his action brought disrepute to the Organization 687:2 Rescission of decisions: Application to Applicants of local General Service salary scales 670:1 Demotion 687:1 Demotion and transfer as disciplinary measure 652:2; 653:1; 655:1 Denial for two years of eligibility for witbin-grade increment 687:1 Denial to restore prior contributory service with the Pension Fund 685:1 Dismissal for misconduct 654:1; 668:1; 673:1; 674:1; 681:1 Filling of vacant post through lateral move 677:1 Non-acceptance of recommendations of Joint Appeals Board 648:1 Non-renewal of fixed-term appointment 640:2; 642:1-4; 643:1; 647:1; 666:1; 686:1 Refusal to add Applicant to short list of candidates for post at higher level 671:1 Rejection of application for reimbursement of income tax on lump sum received from the Pension Fund 634:1 Retroactive reclassification 645:2; 662:1 Revision of Judgement No. 563 669:1 -2 Revision of Judgement No. 575 672:1 Ruling that early retirement/agreed termination was imposed on the Applicant 667:1 Submission of contract to appointment and promotion body 674:1 See also PRELIMINARY MEASURES

APPOINTMENT Absence of right of appointment to a given post 679: VII Administration's discretionary powers with respect to selection of candidates 680: V Administration's right to fill posts by lateral transfer 657:IH-IV; 661 :II Advance decision to fill post by candidate of a certain nationality constitutes unfair treatment of other staff members 657: V-VI Limitations to Administration's discretionary powers with respect to selection of candidates 680:V See also INTERNATIONAL STATUS

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APPOINTMENT AND PROMOTION BOARD Board's duty to make its own independent evaluation 677:IV Erroneous appraisal of provisions concerning status of women in Secretariat 671:XIX Procedural irregularities before Appointment and Promotion Board 677:IV Recommendations concerning Applicant's promotion and date thereof 636:IV-VI Short list containing female candidates only 671 :II-XIX

APPOINTMENTS See APPOINTMENT; FIXED-TERM APPOINTMENTS; PERMANENT APPOINTMENTS; PROBATIONARY APPOINTMENTS ASSIGNMENTS Limits to Secretary-General's discretionary authority to assign officials to certain posts 639:XII Secretary-General's authority to assign staffmembers to any activity or office 670: VII Secretary-General's discretionary authority to assign officials to certain posts 639:XII

B

BURDEN OF PROOF Burden of proof rests upon party making positive affirmation 672:IV Burden of proof of prejudice or improper motivation rests with the party which affirms it 674:X

C CAREER APPOINTMENTS See PERMANENT APPOINTMENTS CHARTER OF THE UNITED NATIONS Article 8 642:IX; 671 :XIII, XVII, XVIII Article 101 641:1; 671:111, VI, XII, XIII, XVII; 673:11; 674:111

CLASSIFICATION OF POSTS Classification procedure must be conducted on the basis of objective criteria 645:IX Extent of Tribunal's competence in job classification matters 645:VI; 662:FV Finding that retroactive reclassification was not warranted 662:IV Obligations of due process in job classification matters 645:VII-IX; 662:IV Tribunal's jurisprudence in job classification matters 645: VI, IX; 662 :IV

COMMITTEE ON APPLICATIONS FOR REVIEW OF ADMINISTRATIVE TRIBUNAL JUDGEMENTS Tribunal's refusal to examine how or why members of the Committee vote

658:VII

COMPENSATION AWARDED BY THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL Calculated as a flat amount 647:IV; 653:V; VII; 657:XI; 659:IV, VI; 663-X-XI 671:XX-XXI

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Calculated on basis of salary at the time of separation from service 640:XVI; 648:XXII; 649:VIII; 650:XXI; 666:XII, XIV; 673:X; 679:XV; 681:VII; 683:VI; 684:VIII; 686:VI Calculated on basis of salary on the date of judgement 645:XII Compensation in case Secretary-General decides not to reinstate Applicant 679 :XV Denial of compensation in case of remand in view of absence of any harm to the Applicant 675 :IV Dismissal for misconduct based on inadequate evidence 681: VII Distress resulting from unsatisfactory termination proceedings 649: VII-VIII Excessive delay in transferring Applicant for compassionate reasons 653 :V-VII Failure to discharge obligation to search for another post in case of termination Failure to re-appoint in spite of entitlement to priority 650:XXI; 684: VIII Improper appointment of another person to vacant post 659:IV, VI Infringement of right to fair consideration for promotion 671 :XX Injury resulting from misleading impression that Applicant's prospects of renewal were good 640:XIII Material and moral prejudice due to mishandling of reclassification case 645:XI-XII Non-renewal of fixed-term appointment when staff member had a reasonable expectancy of renewal 647:III-IV Non-extension of fixed-term appointment flawed by extraneous factors 686:I-V Procedural irregularities before Advisory Panel on Personnel Questions 666 :XII, XIV Procedural irregularities in disciplinary proceedings 673:VIII, X Procedural irregularities in dismissal for misconduct 683:V-VI resulting from abolition of post: 648:XIX, XXII Unfair treatment and lack of adequate protection 657:XI Unfair treatment resulting from lack of good faith implementation of decision taken upon recommendation of Joint Appeals Board 663 :X-XI Unwarranted curtailing of fixed-term appointment 640:XV-XVI

COMPENSATION FOR ACCIDENTS ATTRIBUTABLE TO PERFORMANCE OF OFFICIAL DUTIES Compensation claims must be examined in the first place by Advisory Board on Compensation Claims 639:XV

COMPENSATION IN LIEU OF NOTICE Compensation in lieu of notice refused following dismissal for misconduct 668:VII

COMPETENCE OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL Competence when primary concern is absence of any judicial procedure 650:IX; 684:111 Competence with regard to area staff of UNRWA 650:II-XIV; 655:11-111; 684:111 Competence with regard to former staff members 650:XIII-XIV; 684:V Extent of Tribunal's competence in job classification matters 645:VI; 662:IV Extent of Tribunal's competence in matter of promotions 636:11, VII-VIII Jurisdiction limited to issues arising under a contract of employment and under Staff Regulations and Rules 642:VII Jurisdiction limited to non-observance of contract of employment or terms of appointment of staff members 670:IV Lack of competence in respect of managerial practices within the Organization 663: VII Lack of competence on issues arising between the Organization and a Member State 642:VIII

Index

461

Lack of competence to appraise relative qualifications of candidates 671 :III Lack of competence to examine how an office should be organized 639:X Lack of competence to interpret or to apply Headquarters Agreement 642 :V Lack of competence to substitute Tribunal's judgement on medical matters for that of a medical board 63 5:VI Possible issues involving relationship between jurisdiction of the United Nations and the ILO Administrative Tribunals 665:11 Tribunal's jurisdiction in respect of members of the Joint Inspection Unit 656:1 Tribunal's refusal to examine how or why members vote in committees 658:VII CONSULTATIVE COMMITTEE ON ADMINISTRATIVE QUESTIONS (CCAQ) Position in respect of repatriation grant 656: VHI-XI

CONTRACT OF EMPLOYMENT Personnel Directive is a term of contract of employment 650:XVII Relocation of internationally recruited General Service staff members does not constitute non-observance of their contract of employment 670: VII-XIV See also APPOINTMENT

CONVERSION OF APPOINTMENT See PERMANENT APPOINTMENTS; PROBATIONARY APPOINTMENTS COSTS Request for collective costs granted in view of the affirmation of the Standing Committee of the United Nations Joint Staff Pension Board that the appeal involved complex legal issues 665 :XI Request for costs denied 645:XIII; 647:IV; 652:X; 654:XI; 665:XII; 670:XVI; 679:XVI; 681:VIII Request for costs granted 648:XXI-XXII; 653:VI-VII Tribunal's jurisprudence on award of costs 645:XIII; 648:XXI; 653:VI; 679:XVI

D

DECISIONS OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL See COMPENSATION AWARDED BY THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL; ORDERS OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL; RESCISSION OF ADMINISTRATIVE DECISIONS DECLARATIONS OF MEMBERS OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL See DISSENTING OPINIONS; STATEMENTS OF MEMBERS OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL DEFAMATION Claim of defamation cannot be asserted on account of internal letter

678 :XI

462

Administrative Tribunal of the United Nations

DEMOTION

See DISCIPLINARY MEASURES

DIRECT SUBMISSION OF APPLICATIONS TO TRIBUNAL Applications directly submitted to Tribunal under article 7 of its Statute 686:6

656:3-5;

DISABILITY BENEFIT Award of disability benefit refused 635:1-X Criteria for award of disability benefit 635: III, IX No entitlement to disability benefit in case of partial disability

635:III

DISCIPLINARY MEASURES Argument that other staff members committed similar wrong-doings is not a justification 687:V Authority to terminate appointments when recruitment standards laid down in the Charter are no longer met 673:II; 674:III Burden of proof of evil intent 641 :III-IV Compensation in lieu of notice refused following dismissal for misconduct 668: VII Conclusion that case did not warrant disciplinary action 638:X-XI Decision of dismissal, although justified, tainted by procedural irregularities 673:VIII-IX Demotion and transfer for establishing a false certificate 653:I-V Demotion and transfer for irregularities 655:1-111 Demotion and transfer for participating in organized theft 652:I-X Demotion for irregularities in duty-free imports 687:I-VII Denial of within-grade increment for irregularities in duty-free imports 687:1-VII Dismissal for misconduct 654:I-X;668:IV-X;673:I-IX;674:I-XII;681:I-VI;683:I-V Extent of Tribunal's review of disciplinary decisions 641:IV; 668:VII; 673:11 Extenuating circumstances 653 :V Finding that disciplinary measure was justified 654:X; 674:XII Finding that disciplinary measure was taken properly 641:XI-XII; 652:V-IX; 654:VIII-X; 668:X Finding that the Applicant was not charged with misconduct or given an opportunity to defend himself 683 :IV-V Limits to right of access to evidence and to cross-examine witnesses 654: VI Limits to Secretary-General's discretionary power in disciplinary matters 641:IV; 654:X; 668:VII; 687:VII Procedural irregularities in disciplinary proceedings 673 :IV-VIII Proposition that Applicant is guilty until proven innocent is unacceptable 681: V Requirement of adequate evidence in disciplinary proceedings 681:1-VI Requirements of due process in disciplinary matters 641:V-VII, XI-XII; 654:X; 668:VII-IX;681:VI Right of access to evidence and to cross-examine witnesses 654: V-VI Right to be informed of charges and to respond to them 673: V Secretary-General's broad powers in disciplinary cases 641:11, XI; 652:VIII-IX; 654:X; 668:VI-X; 674:111, XII; 687:VII Secretary-General's discretionary power to chose appropriate disciplinary measure 641:11; 668:VII; 673:11; 674:111; 687:VII Sole jurisdiction of Joint Disciplinary Committee to hear disciplinary cases 674: V Staff member's personal responsibility in disciplinary matters 652: V; 654:IX Summary dismissal for misconduct 641:1-XII Suspension without pay 655:1-111

Index

463

Termination indemnity refused following dismissal for misconduct 641 :XIII; 668:VII Tribunal's jurisprudence in disciplinary matters 652:IX; 654:X; 668: VH; 673:11; 687:VII Utmost rigour required in investigating charges 673:IV See also JOINT DISCIPLINARY COMMITTEE; TERMINATION INDEMNITY

DISCRIMINATION Absence of evidence of discrimination on account of union and staff representational activities 679:XIV Allegation of discrimination on account of gender 671 :II-XIX Allegation of discrimination on account of racial background 639:IX-XI Allegation of discrimination rejected by Secretary-General 675:5 Applicant's refusal to participate in investigation of claim of discrimination 659: V Burden of proof of discrimination 639:X, XIV; 657:11 Discrimination between staff of various organizations in respect of repatriation grant 656:XVII-XVIII Lack of evidence of discrimination against staff member 657:11; 658:V-VI Lack of evidence of discrimination in reassignment process 639:Ix-XI, XIV Panel set up to examine allegations of discrimination 658: VI Prohibition of discriminatory treatment based on gender 671 :XVIII See also PANEL ON DISCRIMINATION AND OTHER GRIEVANCES

DISMISSAL See DISCIPLINARY MEASURES DISSENTING OPINIONS Dissenting opinion of Mr. Samar Sen 656:13-20 Reference to the dissenting opinion of Mr Roger Pinto under Judgement No. 408 656:VI, IX, XVI DUE PROCESS

Burden of proof of prejudice or extraneous factors 641: VII Defects of procedure warranting remand to Joint Appeals Board 675:I-IV Effects of conflicting information provided by Respondent to Advisory Panel on Personnel Questions 666:IX Entitlement to due consideration for vacant post 644:11 Finding that due process was followed in appointment for vacant post 644:11 Finding that due process was followed in procedure leading to dismissal 641 :VI-VII Hearing by properly convened Joint Appeals Board 651: IV Limits to right of access to evidence and to cross-examine witnesses in disciplinary cases 654:VI Obligations of due process in job classification matters 645:VII-IX; 662:IV Procedural irregularities giving rise to compensation 666:XII Requirements of due process in disciplinary matters 641:V-VII, XI-XII; 652:VI-IX; 654:X;673:IV-V;681:VI Requirements of due process in procedure before Standing Committee of the Pension Fund 635:VII-IX Requirements of due process in selection for a post 639:XII-XIV Right of access to evidence and to cross-examine witnesses in disciplinary cases 654:V-VI See also DISCRIMINATION; PREJUDICE

464

Administrative Tribunal of the United Nations

DUTIES AND OBLIGATIONS OF ADMINISTRATION

Discretionary decisions must abide by rules of fairness and administrative procedures 639-.XIII Ensuring that posts proposed to staff member are suitable for him 649: VII Good faith implementation of decisions taken upon recommendation of Joint Appeals Board 663:VIII-X Information on changes in terms of employment 650:XV-XVI Obligation to do all reasonable efforts to find alternative post in case of abolition of post on grounds of redundancy 648:XVI-XIX DUTIES AND OBLIGATIONS OF STAFF MEMBERS

Compliance with administrative issuances 687:111 Obligation to respect undertaking entered into with Administration 667:IX Participation in investigation on staff member's allegations 676: VI, VIII Responsibility of staff member to ensure that travel on mission has been authorized 638:11, XIII Responsibility to demonstrate integrity during probationary period 674:VI Staff member's obligations in his private life 674:IX Standards of conduct required of staff members 641:1-11; 674:111

E

EARLY RETIREMENT See AGREED TERMINATION ECONOMIC COMMISSION FOR LATIN AMERICA AND THE CARIBBEAN Application by staff member 687:1

ECONOMIC AND SOCIAL COMMISSION FOR WESTERN ASIA Application by staff members 670:1 Relocation of Commission 670:11-VI

EQUALITY OF TREATMENT Obligation to respect equality of staff members 671: II-XIX Prohibition of discriminatory treatment based on gender 671 :XVHI

EXPECTANCY OF CONTINUED EMPLOYMENT See FDCED-TERM APPOINTMENTS F

FAULT OF ADMINISTRATION See RESPONSIBILITY OF ADMINISTRATION FINANCIAL RULES Financial rule 114.1 663:VII

FIXED-TERM APPOINTMENTS Absence of right to renewal 647:11-111 Absence of right to termination indemnity 647:11-111 Finding that Applicant had a reasonable expectancy of renewal

647:111

Index

465

Finding that Applicant had no expectancy of renewal 643:VI-IX Length of service and performance do not create an expectancy of renewal 643 :IX Misleading impression that Applicants prospects of renewal were good 640:XIII Non-extension flawed by extraneous factors 686:I-V Non-renewal which did not violate Applicant's rights 640:I-XVI; 642:II-XII; 643:V-X Reasonable expectancy of renewal must be considered on case-to-case basis 647:111 Termination for reasons of health 637:I-IV Unwarranted shortening of duration 640:I-VIII

G

GENERAL ASSEMBLY Analysis of background and purpose of General Assembly resolution to determine its intended meaning 634:IV-XIII Resolutions: 34/165 634:I-XV 37/126 642:IV, 666:V—VII 43/224/A 639:II, VII-VIII 44/185 671:XI 45/239 671 :XII 46/100 671:XIII Resolutions on improvement of status of women in Secretariat 671 :XI-XV H

HEADQUARTERS AGREEMENT Finding that an agreement with host country was not incorporated into Staff Regulations and Staff Rules 642:V-VI Lack of competence of Tribunal to interpret or to apply a Headquarters Agreement 642:V Treaty Agreement between the United Nations and the Government of Senegal concerning the African Institute for Economic Development and Planning 642:III-X HEIRS OF STAFF MEMBER

Resumption of case by heirs of deceased Applicant

668:111

I

IMPLEMENTATION OF JUDGEMENTS Request for implementation of Judgement No. 544 678:1 Tribunal's finding that judgement was properly implemented

INCOME TAX See REIMBURSEMENT OF INCOME TAX INFORMATION CIRCULARS ST/IC/89/37 636:1, III

678:IX-X

466

Administrative Tribunal of the United Nations

INTERNATIONAL CIVIL SERVICE COMMISSION (ICSC) Recommendations concerning non-pensionable element in pensionable remuneration of General Service category 665:III-X

INTERNATIONAL COURT OF JUSTICE Advisory Opinion of 13 July 1954 650:VIII; 684:111

INTERNATIONAL LABOUR OFFICE Application by a former staff member

635:1

INTERNATIONAL LABOUR ORGANISATION ADMINISTRATIVE TRIBUNAL Possible issues involving relationship between jurisdiction of the United Nations and the ILO Administrative Tribunals 665:II Reference to judgements: No. 1249 666:XIII No. 1332 670:IX

INTERNATIONAL STATUS Application of local General Service salary scales to internationally recruited General Service staff 670:VIII-XIV Benefits granted to internationally recruited General Service staff 670:VI, XIII-XIV Internationally recruited General Service staff members may be transferred to another duty station 670:VII-XIV

INTERPRETATION OF STATUTORY TEXTS Administration's right to interpret rules, subject to Tribunal's control 664:VI Analysis of background and purpose of General Assembly resolution to determine its intended meaning 634:IV-XIII Interpretation must not contradict letter or spirit of provision concerned 664: VI Maxwell on Interpretation of Statutes 656:FV, XVI Principles and methods of interpretation 656:IV-XVI; 664: VI

INVESTIGATION Investigation on allegations of staff members 676:I-VIII Procedure to be followed in investigation on allegations of staff members 676: VI-VII Staff member refusing to participate in investigation on his allegations may lose right to remedial action 676:VI; VIII

J JOINDER OF CASES Claims related and submitted jointly by six Applicants 650:1 Five applications based on common contentions 642:1 Four applications presenting common issues of law and fact 665:1 Joint disposal of common contentions followed by individual consideration of other features 642:1 Two applications presenting identical issues 656:I

Index

467

JOINT APPEALS BOARD

Advisory nature of Board's recommendations 641 :XIII Board is not bound to discuss every piece of evidence and every submission 682 :V Competence in respect of problems of continuing nature 663: V Consideration of one representative case with the understanding that it will apply to several other cases 642:6 Delays in Board procedure due to Applicant's attitude 641 :X Dissenting opinion 638:6, IV, VIII-IX; 640:4 Failure to provide to Board adequate information making it impossible for it to make a recommendation 675:5 Findings: Applicant did not prove that contested decision was vitiated 639:4 Applicant should nave known that he lacked authority for official travel 638:5 Applicant was duly considered for vacant post 660:3-4 Applicant was given due consideration for vacant post 644:4 Applicant was unfairly treated in connection with her consideration for upgraded post 679:9 Applicant was wrongly denied consideration for vacant post 657:1 -2 659:4 Applicant's nationality played a part in decision not to renew fixed-term appointment 643:3-4 Applicant's situation was analogous to that of staff member on permanent appointment 647:2 Appointment and extensions of another candidate did not violate Applicant's rights 658:4-5 Appointment of another candidate did not violate Applicant's rights 680:3 Decision to fill vacant post by lateral transfer was not in accordance with the spirit of the law 661:4 Filling of vacant post through lateral move was within Administration's authority 677:4 Insufficient information was provided to promotion body 667:6 Local General Service salary scale was properly applied to Applicants 670:7 No basis for payment of repatriation grant in currency other than that of home country 646:3 Non-renewal of fixed-term appointment did not violate Applicant's rights 640:3; 666:9 Refusal to include Applicant in short list for vacant post did not infringe upon his rights 671:5-6 Special leave with pay was at variance with Staff Rules 641:3 Implementation of Judgement No. 544 678:1 Interpretation of Tribunal's judgement may only be done by Tribunal itself 676:6 Issues not submitted to the Board 642:XIV, XVI-XVIII; 646:IX-X; 678:XI Obligation for Board to convene to consider an appeal 651:1-IV Recommendations: Assignment of Applicant to post with proper functions 663:7 Compensation for unfair treatment in connection with Applicant's consideration for upgraded post 679:9 Efforts to find a post for Applicant 679:13 Establishment of certificate of service 667:7 Extension of appointment on humanitarian grounds 666:10 Payment of compensation for denial of consideration for vacant post 657:1-2; 659:4; 661:4 Payment of compensation for irregularities in reclassification procedure 645:1 Payment of compensation for lack of fair treatment and due process 642:8 Payment of compensation for non-renewal of fixed-term appointment 643:4 Payment of termination indemnity following dismissal for misconduct 641:5

468

Administrative Tribunal of the United Nations

Payment of termination indemnity following non-renewal of appointment 642:8; 647:2 Reconsideration of Applicant's case for promotion 636:5, V Reimbursement of income tax on lump sum received form the Pension Fund 634:5 Reinstatement of Applicants 642:8 Remand to Classification Committee 645:5 Stronger efforts to identify appropriate post for Applicant Suspension of action to separate Applicant from service 679:13 Suspension of administrative action 678:7 Symbolic compensation for failure to establish performance evaluation reports 667:6-7 Waiver of time-limits for challenging award of disability benefit 637:7 Reports 634:4-5; 636:5; 637:6-7; 638:5-6; 639:4; 640:3-4; 641:3,5; 642:6-8; 643:3-4; 644:4; 645:5; 646:3; 647:2; 657:3-4; 658:3-5; 659:4; 660:3-4; 661:4; 663:6-7; 664:2-3; 666:9-10; 667:6-7; 670:7-8 671:4; 671:5-6; 675:5; 676:5-6; 677:3-4; 678:7,8; 679:8-9, 12-15; 680:3-4; Request for suspension of administrative action denied 657:3-4 Request for suspension of administrative action granted 658:4; 671:4

JOINT APPEALS BOARD (UNRWA) Absence of right to outside counsel before the Board 652:11; 654: VII Decision that appeal was not receivable as time-barred 655:4 Decision that appeal was not receivable as time-barred taken after consultation of members by correspondence 651:3-5 Findings: Applications were not receivable as they were submitted by non-staff members 650:5-6; 684:3-4 Termination of Applicant in accordance with applicable rules and regulations 682:6 Recommendations: Considering period of cessation of service as special leave with pay 648:4; 649:4 Reinstatement of Applicant 648:4; 649:4; 681:6 Transfer to former duty station on compassionate grounds 653:4-5 Upholding decision of demotion and transfer as disciplinary measure 652:4; 653:4 Upholding decision of dismissal for misconduct 654:4 Reports 648:3-4; 649:4; 650:5-6; 652:3-4; 653:4-5; 654:3-4; 655:4; 681:5-6; 682:5-6; 684:3-4

JOINT DISCIPLINARY COMMITTEE Advisory nature of recommendations 673: VIII Finding that Applicant did not meet required standards of integrity Recommendations: To apply disciplinary action 668:6 To demote for misconduct 673:6 To apply written censure and fine 687:5 Reports 668:5-7; 673:6, III; 674:7-8; 687:4-5 Sole jurisdiction to hear disciplinary cases 674:V

674:8

JOINT INSPECTION UNIT Application by a member of the Joint Inspection Unit 656:1 Tribunal's jurisdiction in respect of members of the Joint Inspection Unit

656:1

Index

469

L

LEAVE See SPECIAL LEAVE LEGAL EXPECTANCY OF RENEWAL See FIXED-TERM APPOINTMENTS LEGAL PRINCIPLES Principle of stare decisis 656:XIX See also UNJUST ENRICHMENT

M

MEDICAL BOARD Finding that Applicant was not incapacitated for further service 635:III-VI Tribunal's refusal to substitute its judgement on medical matters for that of a medical board 635: VI Desirability of communicating promptly the report of medical board to Applicant 63 5: VII

MISCONDUCT See DISCIPLINARY MEASURES N

NOTICE See COMPENSATION IN LIEU OF NOTICE O OFFICE OF UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (UNHCR) Application by former staff members 641:1; 667:1

OFFICIAL TRAVEL Finding that travel was on official duty and should be reimbursed 638:III-XV Requirement of prior authorization (staff rule 107.6) 638:I Responsibility of staff member to ensure that travel on mission has been authorized 638:II, XIII

OMBUDSPERSON Reports on performance evaluation report contested by Applicant

679:VII

ORAL PROCEEDINGS Denied 637:2; 639:2; 643:2; 646:2; 652:2; 653:2; 654:2; 665:2; 669:I; 672:1; 681: VIII Granted 679:2

470

Administrative Tribunal of the United Nations

ORDERS OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL Full and fair consideration for vacant posts at higher level 657:XI Payment of balance of termination indemnity 679:XV Payment of net base salary from date of separation until re-appointment 648 :XXII Payment of repatriation grant 656:XX, XXII Priority for posts for which Applicants apply and are qualified 650:XXI; 684:V1II Reimbursement of travel expenses on mission 638:XV Reinstatement of Applicant 679:XV Remand to Respondent for new review by job classification review body 645 :XII Removal from Applicant's file of conclusion that his actions brought disrepute to the Organization 687:VIII See also REMAND

ORGANIZATION OF AN OFFICE Sole responsibility of Administration for organization and restructuring of an office 639:X

p PANEL ON DISCRIMINATION AND OTHER GRIEVANCES Examination of allegations of discrimination 65 8: VI Panel on Discrimination is not proper forum for reclassification matters

645 :III

PENSIONABLE REMUNERATION Non-pensionable element in remuneration of General Service category

665:I-X

PENSIONS See PENSIONABLE REMUNERATION; UNITED NATIONS JOINT STAFF PENSION FUND PERFORMANCE EVALUATION REPORTS Obligation to establish performance evaluation reports 667: VIII Ombudsperson's reports on performance evaluation report contested by Applicant 679:VII Performance evaluation reports found by Tribunal to be flawed 679:VII, XIV Responsibility to establish performance evaluation reports on timely basis 677:IV Staff member's right to request corrective action if performance evaluation report is not established on time 677:IV

PERMANENT APPOINTMENTS Advisory Panel on Personnel Questions 666:VI-XII Consequences of Judgement No. 482 666: VIII Finding that Applicant's rights for consideration for career appointment had not been violated 666:VIII-XII Impossibility of granting career appointment in view of precarious financial situation 642:XI Obligation to consider for career appointment resulting from General Assembly Priority for holders of permanent appointments in filling of posts 679:IV-VI resolution 37/126 666:V-VIII Staff rule 109.1(c) does not preclude possibility of termination 679:IV

Index Termination deriving from reclassification of post See also AGREED TERMINATION

471 679:1-VII

PERSONAL EFFECTS Limits to shipment of personal effects

664:I-VI

PERSONNEL DIRECTIVES PD/2/88

657:VI-VIII; 659:II-IV

PERSONNEL FILES Removal from Applicant's file of conclusion that his actions brought disrepute to the Organization 687:VIII POSTS See CLASSIFICATION OF POSTS

PREJUDICE Burden of proof of prejudice 639:X, XIV Burden of proof of prejudice or improper motivation rests with the party which affirms it 674:X Prejudice leading to non-extension of fixed-term appointment 686:I-V See also DISCRIMINATION

PRELIMINARY MEASURES Request for production of documents and witnesses denied Request for production of documents denied 684:1

674:1

PROBATIONARY APPOINTMENTS Dismissal for misconduct during probationary period 674:IV-VI Staff member's responsibility to demonstrate integrity during probationary period 674:VI Termination on grounds of unsatisfactory service during probationary period 649: IV, VI

PROCEDURE Adjournment of consideration of case 656:2; 679:2 Applications not fulfilling all formal requirements 636:1; 645:1; 649:1; 650:1; 651:1; 655:1; 668:1; 680:1; 682:1; 683:1; 685:1 Document submitted by Respondent at Applicant's request 640:2 Extension of time-limit for filing of application 636:1; 638:1; 639:1; 640:1; 642:2-4; 644:1; 645:1; 656:1; 659:1; 660:1; 663:1; 664:1; 665:1; 668:1; 670:1; 674:1; 680:1; 685:1; 687:1 Joint application by several Applicants 650:1,1 Questions put to Respondent by the Tribunal 637:2; 651:2; 653:2; 656:2; 659:2; 661:2; 662:1; 663:2; 665:2; 666:3; 671:2; 677:2; 678:2; 679:2; 686:2 Request to Respondent to produce answer on merits 650:2; 655:2 Request to Respondent to produce documents 660:2 Resumption of case by heirs of deceased Applicant 668 :III

472

Administrative Tribunal of the United Nations

Suspension of time-limit for filing of application

668:1

See also JOINDER OF CASES; ORAL PROCEEDINGS; PRELIMINARY MEASURES; REMAND

PROMOTION Absence of entitlement to promotion 636:11; 660:5 Absence of entitlement to promotion to a particular post 678 :IX Administration's authority to fill vacant post through lateral move under Vacancy Management system 677:111 Administration's discretionary powers with respect to selection of candidates 680: V Administration's right to fill posts by lateral transfer 657:III-IV; 661 :II Advance decision to fill post by candidate of a certain nationality constitutes affirmative action in improving status of women in Secretariat 671: VII, XIV, XVII-XLX Application of provisions on improving status of women in Secretariat 671:II-XIX Burden of proof of having given consideration to candidate for promotion 660:11 Candidates for vacant posts are entitled to due consideration 644:11 Criteria to be taken into account for promotion 636:11-VII Criterion of highest standards of efficiency, competence and integrity 671 :XIV Discretionary authority of Secretary-General 636:11, VII-VIII Finding that appointment and extension of another candidate did not violate Applicant's rights 658:IV-V Free appraisal by Administration of qualifications of candidates 678 :IX Inclusion of staff member on short list is evidence of due consideration 644:11 Limitations to Administration's discretionary powers with respect to selection of candidates 680:V Limits to Secretary-General's discretionary authority on promotions 636:11, VII-VIII Procedural irregularities before Appointment and Promotion Board 677:IV Procedure for short-listing of candidates 671: VI Procedure of filling reclassified post (UNICEF) 679: VI Right to be considered for promotion 660:II Tribunal's jurisprudence in respect of promotions 636:11, VII Tribunal's lack of competence to appraise relative qualifications of candidates 671 :III unfair treatment of other staff members 657:V-VI Vacancy Management System was in force at the time of decision 644:II See also APPOINTMENT AND PROMOTION BOARD

R

RECEIVABILITY Case that appeal is time-barred must be made before Joint Appeals Board 650:XLX Decision that appeal was not receivable flawed by improper procedure 651:I-FV Decision that claim is not time-barred 640:VII; 645:V; 650:XIX; 684:VI Decision that claim is time-barred 645:I-IV, XII; 655:111 Grievances not properly raised in time 643 :V Issues not submitted to the Joint Appeals Board 642:XIV, XVI-XVIII; 646:LX-X; 678:XI Pleas introduced in written observations 570:I Problems arising more than 60 days before the appeal which are of a continuing nature and therefore not time-barred 663:1 II-VI Tacit waiver of contention of untimeliness 663: VI See also PROCEDURE

Index

473

RECRUITMENT See APPOINTMENT REGULATIONS OF THE UNITED NATIONS JOINT STAFF PENSION FUND Art. 24 634:II Art. 28 634:V Art. 33(a) 635:1, III, V Art. 54 (a) 665:1, IX-X

REIMBURSEMENT OF INCOME TAX Reimbursement of the United States income tax on lump sum received from the Pension Fund 634J-XV

RELATIONS WITH MEMBER STATES Lack of competence of Tribunal on issues arising between the Organization and a Member State 642:VIII

REMAND Remand for proper consideration by Joint Appeals Board 675:IV Remand to Respondent for new review by job classification review body 645:X, XII Remand to Respondent for proper consideration by Joint Appeals Board 651 :IV

REMOVAL See PERSONAL EFFECTS REPATRIATION GRANT Currency of payment of repatriation grant 646:11-VIII History of repatriation grant 656:VIII-XII Payment of repatriation grant to staff members residing in their own country and assigned to duty station in another country 656:II-XX Purpose of repatriation grant 646: V; 656: VIII

RESCISSION OF ADMINISTRATIVE DECISIONS Termination of permanent appointment

679:XV

RES JUDICATA Judicial doctrine of res judicata

672 :V

RESPONSIBILITY OF ADMINISTRATION Applicant's failure to prove damage to his reputation 638:X-XIV Ensuring that posts proposed to staff member are suitable for him 649: VII Failure to convey properly to staff member that his travel authorization has been changed 638:III-V

RESUMPTION OF CASE Resumption of case by heirs of deceased Applicant

668:III

474

Administrative Tribunal of the United Nations

REVISION OF JUDGEMENTS Application for review of Judgement No. 563 669:1 Application for review of Judgement No. 575 672:1 Conditions required for revision of a judgement 669:IH-IV; 672:II-III Finding that there are no facts justifying application for revision 669:V-VII; 672:II-V Finding that time-limits required for an application for revision are not met 672 VI-VH Time-limits required for revision of a judgement 672:III, VI-VII

RIGHTS OF STAFF MEMBERS Distinction between rights of staff members on permanent and on fixed-term appointments 647:II Fair consideration for promotion 671 :XX Full and fair consideration for vacant post 657: III-VIII; 659:II-V; 679:VII; 680:V Hearing by properly convened Joint Appeals Board 651 :IV Information on changes in terms of employment 650:XV-XVI Limits to right of access to evidence and to cross-examine witnesses in disciplinary cases 654:VI Priority of appointment to vacant posts for staff members whose posts have been abolished 680: VI Proper attention to be given to staff member's pleas and requests 657:IX Right of access to evidence and to cross-examine witnesses in disciplinary cases 654:V-VI Right to be considered for promotion 660:II Right to be evaluated on basis of objective criteria 686: V Right to be informed of charges and to respond to them in disciplinary matters 673: V Right to post with assigned functions and appropriate work to do 663 :V-VII Right to proper judicial recourse 650:IX; 684:III Staff member refusing to participate in investigation on his allegations may lose right to remedial action 676: VI; VIII Tribunal's incapacity to recognize a right voluntarily waived by staff member 667:IX

RULES OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL Art. 7.9 668:III Art. 18 675:I-III

s SALARIES, ALLOWANCES, BENEFITS Application of local General Service salary scales to internationally recruited General Service staff 670:VIII-XIV Benefits granted to internationally recruited General Service staff 670:VI, XIII-XIV Methodology for determination of General Service salary scales 670: VIII See also PENSIONABLE REMUNERATION; REPATRIATION GRANT; TERMINATION INDEMNITY

SECONDMENT Criteria set out in Judgement No. 482 666:11; 686:1 Finding that Applicant was not on secondment 666:11; 686:1

Index

475

SECRETARY-GENERAL Authority to assign staff members to any activity or office 670: VII Authority to terminate appointments when recruitment standards laid down in the Charter are no longer met 673:II; 674:III Broad powers in disciplinary cases 641:II, XI; 652:VIII-IX; 654:X; 668:VI-X; 674:III, XII; 687.-VII Discretionary authority on matters of promotion 636:II, VII-VIII Discretionary authority to assign officials to certain posts 639:XII Discretionary power to chose appropriate disciplinary measure 641:II; 668:VII; 673:II; 674:III; 687:VII Good faith in attempting to observe principles set forth in Judgement No. 482 666:VIII Limits to Secretary-General's discretionary authority on promotions 636:II, VII-VIII Limits to Secretary-General's discretionary authority to assign officials to certain posts 639:XII Limits to Secretary-General's discretionary power in disciplinary matters 641:IV; 654:X; 668:VII; 687:VII Responsibility to appoint and to dismiss staff members 674:III SECRETARY-GENERAL'S BULLETIN

ST/SGB/150/Rev. 1 639:11-III, V ST/SGB/237 671:ffl-X ST/SGB/244 643:X

SELECTION FOR POSTS See ASSIGNMENTS SETTLEMENT Improper nature of informing Tribunal of unsuccessful settlement efforts 686:FV

SPECIAL LEAVE Special leave with pay as improper procedure when suspension from duty was required 641:VIII

SPECIAL SERVICE AGREEMENTS Individual on Special Service Agreement is not staff member

642:XV

STAFF CONSULTATION Effects of relocation on staff members may be matter for staff consultation 670:XIII Finding that staff consultation took place 670:XIII Location of an organ of the Secretariat is not matter for staff consultation 670:XIII

STAFF REGULATIONS 1.2 1.4 3.1 4.1 4.2 4.5

670: VII 641:1; 674:II 670: VIII 673:II 673:II 636:VI

476

Administrative Tribunal of the United Nations

8.1 670:XIII 8.1(a) 679:X 9.1(a) 637:IV 9.4 646:V 10.2 641 :II;668:VI; 673:II Annex I, paragraph 7 670:VIII Annex III, paragraph (c) 668 :VII; 674:XII Annex IV 646:V; 656:III-XXII

STAFF REGULATIONS AND RULES Finding that Applicant should be regarded as appointed under 100 Series rather than 200 Series 642:IV, XII Mandatory nature of administrative issuances 687:III

STAFF REPRESENTATIVES See STAFF CONSULTATION; STAFF UNION STAFF RULES 103.2 670:VIII 104.1 670-.VIII 104.3(a) 634:II 104.7 670: V, VIII 107.6 638:I 107.21(e) 664:III-VI 107.21(j) 664:II 108.1 670:VIII 108.1 679:X 108.2 679:X 109.1(c)(i) 680:VI 109.1(c) 642:XII 109.1 (c) 679:IV-V, XIII-XIV 109.3(b) 674:XII 109.5(d) 656:III-IV 109.5(i) 656:III-XVI 109.5 656:XXII 110 663: VII 110.1 687:III 110.3 668:VI-VII 110.3 674:III 110.3(a) 687:VII 110.4(b) 674: V 111.2(a) 645:III, V 112.3 663:VII 209.8 646:V

STAFF UNION Absence of evidence of discrimination on account of union and staff representational activities 679:XIV Failure to apply administrative instruction ST/AI/293 679:VII-XIV Failure to make arrangements on amount of time to be devoted to union and representational activities 679:VII-VIII Importance of arrangements on facilities for staff representatives 679: VIII, XI

Index

477

Performance evaluation reports flawed by improper references to Applicant's union and representational activities 679: VII, XIV Reasonable time for discharging staff representational activities 679:XII Tribunal's finding that termination derived from performance evaluation reports established in absence of arrangements concerning Applicant's union and staff representational activities 679:XIV Union and staff representational activities are legitimate and contribute to proper functioning of the Organization 679:X STANDARDS OF CONDUCT IN THE INTERNATIONAL CIVIL SERVICE Staff member's obligations in his private life 674:IX

STANDING COMMITTEE OF THE UNITED NATIONS JOINT STAFF PENSION BOARD Affirmation that appeal involved legal issues which merited adjudication by Tribunal 665:4 Decision upholding denial to restore prior contributory service 685:4 Decision upholding refusal to award a disability benefit 635:3 Decision upholding refusal to use another scale as pensionable remuneration 665:4 Requirements of due process in procedure before Committee 635: VII-LX STATEMENTS OF MEMBERS OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL Statement of Mr. Luis de Posada Montero 63 8:12

STATUS OF WOMEN Affirmative action in improving status of women in Secretariat 671:VII , XIV, XVII-XIX Application of provisions relating to improvement of status of women in Secretariat 671 II-XIX Measures aiming at improving status of women in Secretariat are related to principle of equal treatment and recruitment criteria 671 :XIV Policy of Secretary-General aiming at improving status of women in Secretariat (ST/SGB/237) 671:X

STATUTE OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL Art. 2 Art. 7 Art. 7.1 Art. 9.2 Art. 11 Art. 12

650:XIII; 670:FV; 672:I 642:XIV; 657:II 646:X 675 I, IV 669:VI; 672:VII 669:III-V; 672:I-VIII

SUMMARY DISMISSAL See DISCIPLINARY MEASURES SUSPENSION FROM DUTY Special leave with pay as improper procedure when suspension from duty was required 641:VI

478

Administrative Tribunal of the United Nations

SUSPENSION OF ADMINISTRATIVE ACTION Request for suspension of administrative action accepted by Joint Appeals Board and accepted by Secretary-General 679:13 Request for suspension of administrative action accepted by Joint Appeals Board and partly accepted by Secretary-General 678:7 Request for suspension of administrative action accepted by Joint Appeals Board and rejected by Secretary-General 658:4; 671:4; 679:8 Request for suspension of administrative action rejected by Joint Appeals Board 657:3-4; 679:15

T

TERMINATION Administration's right to dismiss under Staff Regulations and Rules is not unfettered 682:IV Discretionary power of Commissioner-General of UNRWA to terminate appointments in the interest of the agency 681 :IV-V; 682:IV Finding that termination of appointment was within discretionary authority of Respondent and was not defective 682:IV Limits to discretionary power of Commissioner-General of UNRWA to terminate appointments in the interest of the agency 681 :V; 682:IV Termination deriving from reclassification of post 679:I-VII Termination for reasons of health 637:I-IV Termination on grounds of unsatisfactory service during probationary period 649: IV, VI Termination resulting from abolition of post on grounds of redundancy 648:I-XIX See also ABOLITION OF POST; DISCIPLINARY MEASURES

TERMINATION INDEMNITY Absence of right to termination indemnity in case of fixed-term appointments 647:II-III Payment of termination indemnity in case of reasonable expectancy of renewal of fixed-term appointment 647:III Termination indemnity awarded to holders of fixed-term appointments 642:XII Termination indemnity refused following dismissal for misconduct 641:XIII. 668: VII

THE LAW OF THE INTERNATIONAL CIVIL SERVICE Reference to The Law of the International Civil Service by C.F. Amerasinghe 639:XIII

TIME LIMITS Decision that claim is not time-barred 640:VII; 645:V; 650:XIX; 684:VI Decision that claim is time-barred 645:I-IV, XII; 655:III Problems arising more than 60 days before the appeal which are of a continuing nature and therefore not time-barred 663:III-VI Tacit waiver of contention of untimeliness 663: VI Time limits prescribed by staff rule 111.2(a) 645:1-V See also COMPETENCE; JOINT APPEALS BOARD; PROCEDURE; RECEIVABILITY

Index

479

U UNITED NATIONS ADMINISTRATIVE TRIBUNAL Possibility for the Tribunal to reverse its jurisprudence References to judgements: No. 57 650:VIII No. 70 650:VI No. 82 634:VI No. 237 634:V-X; 645:XIII; 648:XXI; 653:VI No. 310 657:1, V-VI No. 312 639:XII; 680:V No. 320 634:V, XIV-XV No. 336 674:X No. 350 639:X, XII No. 361 642:VII No. 362 680:V No. 373 634:V, XTV-XV No. 377 674:II No. 386 668:III No. 388 645:IX No. 395 670:VIII No. 396 645:VI No. 408 656:II-XVI No. 409 645: VI No. 410 636:IV, VII No. 412 639:X No. 424 641:11; 673:II; 674:III; 687:VII No. 425 641:II; 673:II; 674:III; 687:VII No. 428 666:II, VIII No. 429 641:II; 674:III No. 437 634:IV; 642:VII No. 447 660:II No. 461 650:VIII No. 465 674:X No. 479 641:IV; 673:II; 687:VII No. 482 686:I-II No. 502 635:VII No. 511 651:IV No. 527 663:VI No. 533 675:5 No. 537 644:II No. 538 676:II, III, VI, VIII No. 544 678:III-X No. 547 667:IX No. 558 654:VI No. 559 686:II No. 560 676:VI No. 562 641:XIII No. 563 669:1, VII No. 565 644:II No. 575 672:1-VIII No. 582 673:VIII No. 586 680:V No. 588 642:V

656:XIX

480

Administrative Tribunal of the United Nations

No. 590 670:II, V No. 597 645:X No. 598 651:IV No. 602 645:X No. 622 658:III; 675:5 No. 628 650:VIII-IX; 655:II-III No. 629 670:IX No. 630 680:V No. 633 644:II No. 650 655:II-III; 684:II-V No. 652 654:II No. 654 652:I No. 657 659:III; 677:III No. 658 661:II No. 659 676:VI No. 661 677:III No. 671 XVI

See also COMPETENCE OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL; DISSENTING OPINIONS; DECISIONS OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL; PROCEDURE; RECEIVABILITY; RULES OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL; STATEMENTS OF MEMBERS OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL; STATUTE OF THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL UNITED NATIONS CHILDREN'S FUND (UNICEF) Applications by staff members or former staff members 637:1; 668:1; 669:1; 673:1; 679:1; 680:1 Authority of Executive Director by delegation from Secretary-General 673:II CF/AI/1990-05 669:1, VI Investigation by Ombudsperson 637 :IV Personnel Administration Manual 637:IV

UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT Application by staff member 639:1 UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL ORGANIZATION (UNESCO) Application by staff member or former staff members Administrative circular No. 1700 665:1-X Administrative circular No. 1752 665:I-X

665:1

UNITED NATIONS JOINT STAFF PENSION BOARD Applications against the Board

635:1; 665:1; 685:1

UNITED NATIONS JOINT STAFF PENSION FUND Non-pensionable element in remuneration of General Service category 665:I-X Reimbursement of the United States income tax on lump sum received from the Pension Fund 634:I-XV Restoration of prior contributory service 685:1-VII Situation of participants from the former USSR 685:1-VII

Index

481

See also ADMINISTRATIVE RULES OF THE UNITED NATIONS JOINT STAFF PENSION

FUND; DISABILITY BENEFIT; REGULATIONS OF THE UNITED NATIONS JOINT STAFF PENSION FUND; STANDING COMMITTEE OF THE UNITED NATIONS JOINT STAFF PENSION BOARD; UNITED NATIONS JOINT STAFF PENSION BOARD UNITED NATIONS RELIEF AND WORKS AGENCY FOR PALESTINE REFUGEES IN THE NEAR EAST (UNRWA) Applications by staff members and former staff members 648:1; 649:1; 650:1; 651:1; 652:1; 653:1; 654:1; 655:1; 681:1; 682:1; 683:1; 684:1 Area staff regulation 9.1 681:IV-V; 682:FV; 683:1 Area staff regulation 10.3 650:VI Area staff rule 110.2 683:1 Area staff rules provisions on representation of applicants before Joint Appeals Board 652:11 Board of Inquiry to investigate charges 681:4,1-II Commissioner-General's discretionary power to terminate appointments in the interest of the agency 681 :IV-V; 682 :IV Limits to Commissioner-General's discretionary power to terminate appointments in the interest of the agency 681 :V; 682:IV Personnel Directives: A/4 Rev.4/Amend.9 650:XV A/5/77 650:XV A/9 648:X Status of UNRWA and of its staff 650:III-IV Tribunal's competence with regard to area staff of UNRWA 650:II-XIV; 655:11-111; 684:III See also JOINT APPEALS BOARD (UNRWA) UNJUST ENRICHMENT

Doctrine of unjust enrichment 638: VI Finding that there has been inequitable enrichment of Respondent

638:VII-IX

W

WAIVER OF RIGHTS Tribunal's incapcity to recognize a right voluntarily waived by staff member

667:IX