Judgment No. 3939
Decision
The complaint is dismissed.
Summary
The complainant challenges the decision not to extend his appointment beyond the statutory retirement age.
Judgment keywords
Keywords
retirement; age limit; complaint dismissed
Consideration 3
Extract:
As the Tribunal has consistently held, a decision to retain an official beyond the normal retirement age stipulated in a provision of this kind is an exceptional measure over which the executive head of an organisation exercises wide discretion. Such a decision is therefore subject to only limited review by the Tribunal, which will interfere only if the decision was taken without authority, if a rule of form or procedure was breached, if it was based on a mistake of fact or of law, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 1143, under 3, 2845, under 5, 3285, under 10, or 3765, under 2).
Reference(s)
Jugement(s) TAOIT: 1143, 2845, 3285, 3765
Keywords
age limit; judicial review; discretion; extension beyond retirement age
Consideration 5
Extract:
It must first be emphasised that, contrary to the complainant’s submissions, the provision of the Constitution of the ISAU setting the Treasurer’s term of office [...] does not constitute a “statutory requirement” established by the Organization’s authorities. Since, in accordance with the principle of trade-union freedom, the ISAU is an entity separate from the Administration of UNESCO, its Constitution, although subject to the Director-General’s approval, cannot be regarded as an integral part of the rules and regulations governing the Organization, and the fact that its text is reproduced as an appendix to the Human Resources Manual for ease of consultation by staff members does not by any means have the effect of incorporating it therein.
Keywords
applicable law; staff union
Consideration 6
Extract:
As the Tribunal has already emphasised, it is in the interests of an international organisation to ensure that the trade unions or associations representing its staff operate in good conditions (see Judgment 496, under 17). Hence, in order to determine whether retaining an official in service beyond the age of retirement is in the organisation’s interests, it is necessary to take account of any staff representative work carried out by the person in question (see, with respect to a similar case, Judgment 3521, under 1 to 3 and 5).
Reference(s)
Jugement(s) TAOIT: 496, 3521
Keywords
equal treatment; retirement; age limit; staff union; staff union activity; staff representative; organisation's interest
Consideration 7
Extract:
[I]t is clear from the explanations supplied by UNESCO in its written submissions to the Appeals Board and in those filed with the Tribunal that the complainant’s argument regarding his term of office was in fact taken into account by the Director-General when assessing the merits of his request. [...]
In addition, this decision will not be censured for the inadequacy of its initial reasoning, since the Tribunal’s case law accepts that the reasons for an administrative decision may be supplied or supplemented a posteriori during appeal proceedings (see, in particular, Judgments 1817, under 6, 2194, under 7, or 3660, under 3). This was the case here, and the complainant is wrong to submit that when UNESCO subsequently provided explanations, it modified the original reasons for the contested decision, since it merely clarified them.
Reference(s)
Jugement(s) TAOIT: 1817, 2194, 3660
Keywords
grounds; amendment to the rules; internal procedure
Consideration 9
Extract:
The complainant submits that he was the victim of discrimination because the President of the ISAU who held office during the same period had been retained in service beyond the statutory retirement age. However, quite apart from the fact that the extension of that person’s appointment had been granted, not as requested by him for the full length of the outstanding term of office, but only for six months mainly in order to enable him to deal with day-to-day matters, the President and the Treasurer of the ISAU are not in an identical situation with regard to the application of Staff Regulation 9.5. Article V of the Constitution and Article XII of the Rules of Procedure of the Association make the President of the ISAU the most senior officer of the Association’s Executive and her or his responsibilities are very different to those of the Treasurer whose duties are of a less sensitive nature for the Association. Moreover, it is plain from the file that, unlike the Treasurer, the President was released from all official duties in order to be able to devote himself on a full-time basis to his duties as an officer of the ISAU, which again means that the two officials were not in the same situation with regard to the Organization’s staff management policy.
At best, the position of these two persons could be said to be somewhat similar, but it was far from being absolutely identical. For this reason, the fact that their respective requests received different responses cannot be deemed discriminatory in any way.
Keywords
equal treatment
Consideration 10
Extract:
The complainant submits that the impugned decision, which was taken at a time when the relationship between the ISAU and the Administration of UNESCO was fraught, is tainted with abuse of authority in that it stemmed from a wish to harm the interests of the Association and the members of its Executive.
However, as the Tribunal has repeatedly stated, misuse of authority may not be presumed and the burden of proof is on the party that pleads it (see, for example, Judgments 2116, under 4(a), 2885, under 12, or 3543, under 20). While some documents in the file show that there was a certain amount of tension between the ISAU and the Organization’s services, they are not sufficient to establish that the decision to deny the complainant’s request was based on reasons connected with that tension.
Reference(s)
Jugement(s) TAOIT: 2116, 2885, 3543
Keywords
burden of proof; misuse of authority; abuse of power
Consideration 12
Extract:
The complainant [complains] that [...] the Organization took more than three months to reply to his request for an extension of his appointment. [...]
It is true that the Organization was nevertheless bound to reply to this request within a reasonable period of time. However, while it would have been preferable in this case that a decision was taken sooner, UNESCO cannot be deemed to have disregarded this requirement, as the decision containing the reply was taken one month before the complainant reached the statutory retirement age and he does not contend that it was adopted too late for him to make adequate arrangements for his private life after he had attained the normal retirement age.
Keywords
moral injury; reasonable time; age limit; extension beyond retirement age
Consideration 5(a)
Extract:
[A] breach of the Constitution [...] could not [...] constitute a breach by the author of the impugned decision of the principle tu patere legem quam ipse fecisti, according to which the Administration is bound by the rules it has itself established.
Keywords
patere legem
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