Judgment No. 986
Decision
1. THE IMPUGNED DECISIONS ARE QUASHED.
2. THE COMPLAINANTS' RIGHTS TO REDRESS SHALL BE DETERMINED WHEN EACH OF THEM LEAVES THE SERVICE OF THE ORGANISATION.
3. THE ILO SHALL PAY EACH OF THEM 10,000 FRENCH FRANCS IN COSTS.
4. THEIR OTHER CLAIMS ARE DISMISSED.
Consideration 2
Extract:
"The complainants are alleging breach of the Staff Regulations: to be precise, of Article 3.1.1, which defines pensionable remuneration. As it held in Judgments 832 and 862 the Tribunal is competent under Article II(1) of its Statute to entertain complaints of that kind, seeking as they do the quashing of decisions allegedly in breach of the terms of appointment of staff. What is at issue is the relationship between the Organization and its staff, [and in such matters] the Tribunal is fully competent".
Reference(s)
ILOAT reference: ARTICLE II(1) OF THE STATUTE
Organization rules reference: ARTICLE 3.1.1 OF THE ILO STAFF REGULATIONS
Jugement(s) TAOIT: 832, 862
Keywords
competence of tribunal; staff regulations and rules; breach; provision; pensionable remuneration; judicial review
Consideration 3
Extract:
"Even when there has been amendment of Staff Regulations there will be breach of an acquired right that warrants setting the decision aside if the altered term of appointment is 'fundamental' and 'essential'."
Keywords
acquired right; staff regulations and rules; amendment to the rules; terms of appointment; definition
Consideration 7
Extract:
The Noblemaire principle, as defined by the Tribunal in Judgment 825, is a custom binding on any organisation that belongs to the United Nations system.
Reference(s)
Jugement(s) TAOIT: 825
Keywords
international civil service principles; noblemaire principle; definition
Consideration 7
Extract:
"The relations of staff with an international organisation do not end when they leave its employ. The pension scheme forms part of the administrative arrangements they may look forward to and, like pay, pensions are governed by basic rules that are binding on the organisation. Foremost among them is Noblemaire, the purpose of which is not to bestow privilege on international civil servants but to draw some of the best people from every country into the service."
Keywords
international civil service principles; noblemaire principle; enforcement; salary; separation from service; pension
Consideration 13
Extract:
"Being neither arbitrator nor mediator, the Tribunal has only a limited power of review [in the area of staff remuneration] and will declare whether the impugned decisions square with general principles, with the Staff Regulations and with the terms of the complainants' appointment."
Keywords
competence of tribunal; general principle; staff regulations and rules; enforcement; terms of appointment; salary
Consideration 16
Extract:
"A ruling on the lawfulness of a decision calls for review of all the material evidence, and especially in times of change in which the decision has been taken. One relevant criterion is the ultimate purpose. A run of small amendments may offend against the whole spirit of the rules, and to ignore them would be a miscarriage of justice".
Keywords
cumulative decisions; acquired right; staff regulations and rules; amendment to the rules; terms of appointment; judicial review; purpose
Consideration 16
Extract:
On 1 April 1987 the ILO brought in a new scale which further lowered pensionable remuneration. Though there is no going back on what was said in earlier judgments, "the complainants may back up their case against the decisions they impugn by citing the earlier ones on the same subject [vide Judgments 832 and 862]. The full set of decisions is material in ruling on the plea of breach of acquired rights even though, if breach there has been, the consequences will touch only the decisions now under challenge."
Reference(s)
Jugement(s) TAOIT: 832, 862
Keywords
cumulative decisions; res judicata; acquired right; scale; pension; pensionable remuneration; consequence; reduction of salary
Considerations 21-22
Extract:
A decision "will be reviewed in the context of fact and law that obtained when it was taken, else there would be breach of the general rule against retroactivity that is binding on any administrative authority and court of law. That precept does, however, allow of limited qualification [...] A decision taken after the one impugned may, if more favourable, repeal it with retroactive effect".
Keywords
decision; subsequent fact; exception; general principle; non-retroactivity
Consideration 22
Extract:
"A decision taken after the one impugned may, if more favourable, repeal it with retroactive effect, the decision- maker being empowered to withdraw the earlier decision so long as he does not thereby offend against the rights of any third party. The withdrawal may be likened to reversal, and if there happens to be an appeal pending there will be no cause of action."
Keywords
withdrawal of decision; settlement out of court; acquired right; limits; consequence
Considerations 23-24
Extract:
The Tribunal holds that as a result of the further reduction in pensionable remuneration brought in on 1 April 1987 the complainants are "worse off, to an extent [...] that goes beyond the bounds of the ILO's discretionary authority"; the reduction is in breach of the essential terms of their employment. The Tribunal quashes the impugned decisions and makes the following ruling of principle: "if the amount of the pension each of them gets when the 1987 scale is taken into account proves to be at least 3 per cent lower than the amount he or she gets when it is not, compensation shall be due for any loss over and above the 3 per cent."
Keywords
acquired right; breach; terms of appointment; scale; pension; pensionable remuneration; reduction of salary
Consideration 5
Extract:
"The Tribunal may not review the management of the [United Nations Joint Staff Pension] Fund, the sole basis of its competence in this case being the ILO's Staff Regulations."
Keywords
competence of tribunal; iloat; pension; unjspf
Consideration 24
Extract:
Though the Tribunal "has held that the new scale [of pensionable remuneration] impairs the complainants' rights, it cannot now set the amount of their entitlements." Its ruling will therefore be one of principle.
Keywords
injury; amount; amendment to the rules; scale; pension; pensionable remuneration; reduction of salary; material damages
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