FIFTIETH ORDINARY SESSION

In re CHEN (No. 2)

Judgment No. 547

THE ADMINISTRATIVE TRIBUNAL,

Considering the complaint filed against the World Health Organization (WHO) by Mr. Yao Kuei Chen on 7 January 1982 and brought into conformity with the Rules of Court on 19 April, the WHO's reply of 29 July, the complainant's rejoinder of 29 August and the WHO's further communication of 28 September 1982;

Considering Article II, paragraph 5, of the Statute of the Tribunal and WHO Staff Rules 1230.1 and 8;

Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered by the Tribunal;

Considering that the material facts of the case are as follows:

A. The complainant, a citizen of Australia, was employed by the WHO in its Regional Office for the West Pacific (WPRO) from 1962 until the end of September 1977. Details of his career appear in Judgment No. 356, under A. By that judgment, which it delivered on 13 November 1978, the Tribunal dismissed the complainant's first complaint on the grounds that he had failed to exhaust the internal means of redress. On 28 November 1978 he filed claims for redress with the Regional Board of Appeal of WPRO. The Board held the appeal to be time-barred and the Regional Director dismissed it on 16 February 1979. On 5 October he asked for reinstatement in a post under the malaria control programme or as a short-term consultant. He filed another appeal to that effect with the Regional Board, which declared that matters of recruitment did not come within its competence. On 15 January 1981 he went to the Headquarters Board of Inquiry and Appeal, and in its report of 4 September this Board held that he had no status to appeal, having left the WHO in 1977, and recommended dismissing the appeal. On 5 October 1981 the Director-General accepted the recommendation. That decision was notified to the complainant on 13 October 1981, and it is the one he now impugns.

B. The complainant maintains that his case has never been properly investigated. In his view the termination of his appointment two years before he reached the age of retirement was premature and due simply to his having annoyed the Administration with his claims. He believes, for reasons he explains, that he has made a worthwhile but unrecognised technical contribution to the Organization's malaria control programme, particularly by his work on the efficacy of pesticides, and that he still has useful service to give. There is a grade P.3 post in Papua New Guinea for which he is suited. In his claims for relief he seeks "reasonable redress for [his] premature termination", the calculation of his pension benefit up to the end of 1979 and recognition of his contribution to the malaria control programme. He also considers the WHO to have a moral obligation to compensate him for the consequences of a motor accident in which he suffered injury in Australia in 1975.

C. In its reply the WHO observes that the complaint discloses no cause of action and consists merely of irrelevant allegations, none of which affords grounds for appeal. There is no evidence of any breach of the rules or of any abuse of authority. In any event the claims relate to events which occurred between 1975 and 1977 and are therefore time-barred. The WHO accordingly invites the Tribunal to declare the complaint irreceivable.

D. In his rejoinder the complainant explains further why he believes he was unfairly treated by the WHO. In particular he contends that the assignment he was given in 1975 was contrary to the provisions of the WHO Manual.

E. In a further communication of 28 September 1982 to the Registrar of the Tribunal the WHO stated that it would file no surrejoinder since the rejoinder raised no new issue of fact or of law.

CONSIDERATIONS:

The complainant was an employee of the Organization until the expiry of his contract on 30 September 1977. An appeal against the decision not to renew the contract was on 13 November 1978 dismissed by the Tribunal as irreceivable in Judgment No. 356. Thereafter he made a further appeal which on 5 October 1981 the Director-General on the advice of the Headquarters Board of Inquiry and Appeal rejected as irreceivable. The present appeal to the Tribunal is against this decision. It is accompanied by a long letter to the President of the Tribunal dated 7 January 1982 which contains, amid matter that cannot relate to any conceivable claim, references to his "premature retirement" in 1977 and to the failure of the Organization to recruit him anew thereafter. Neither of these two points could constitute a basis for any claim, the first being clearly res judicata and the second being clearly outside the competence of the Tribunal.

Accordingly the complaint must be dismissed.

DECISION:

For the above reasons,

The complaint is dismissed.

In witness of this judgment by Mr. Andr¿risel, President, Mr. Jacques Ducoux, Vice-President, and the Right Honourable Lord Devlin, P.C., Judge, the aforementioned have hereunto subscribed their signatures as well as myself, Allan Gardner, Registrar of the Tribunal.

Delivered in public sitting in Geneva on 30 March 1983.

Andr¿risel

Jacques Ducoux

Devlin

A.B. Gardner