2014-UNAT-396

2014-UNAT-396, Robineau

UNAT Held or UNDT Pronouncements

UNAT was persuaded for reasons of equity and good faith by the Appellant’s arguments rather than those put forward by the Secretary-General, although it did not accept the entirety of the Appellant’s arguments on the discontinuation issue. UNAT held that in failing to give due consideration to the arguments raised by the Appellant regarding the years 1989 to 1997, UNDT erred in law in retroactively applying former Staff Rule 104. 3 set forth in ST/SGB/2003/1 to the entirety of his service. UNAT held that the Appellant was entitled to rely on the statutory provisions in force when he last entered the service of the Organisation. UNAT held that the period of service in respect of which the cumulative counting of accrued leave for commutation should have begun, bearing in mind the continuum provided for in ST/SGB/Staff Rules/1/Rev. 7/Amend. 3 (in force when the Applicant last entered the service of the Organisation), was the period from 22 August 1997. UNAT determined that the maximum accrued leave days the Appellant was entitled to on his retirement in 2011 was 50. UNAT upheld the appeal and granted the Appellant a payment of 50 days in commutation of annual leave not used.

Decision Contested or Judgment Appealed

The Applicant contested the decision stating that the calculation of his annual leave days was correct and denying him payment in commutation of the 60 days of unused annual leave. UNDT found that the application was receivable ratione temporis. UNDT found that the Applicant’s entitlement to payment for unused annual leave arose only on the day of his retirement from service and that the applicable law could only be the law in force on that date. UNDT held that the Applicant was statutorily entitled to payment for unused annual leave days limited to 60 days and that the commutation payments that he had received for the period from 1989 to 1997 had to be considered in calculating the commutation payment owed to him upon his retirement in 2011. Applying Staff Rules 4. 17 and 9. 9, both of which were in force when the Applicant retired, UNDT concluded that the Applicant could not claim any payment in commutation of accrued leave at the time of his retirement, as between 1989 and 1997 he had been employed continuously for the purpose of commutation payments and during that same period of time he had already received a series of commutation payments corresponding to 135. 5 days of accrued leave in excess of the 60-day statutory limit.

Legal Principle(s)

Left deliberately blank

Outcome

Appeal granted

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The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.

Full Judgment

Applicants/ Appellants

Robineau

Entity

ECE

Case Number(s)

2013-444

Tribunal

UNAT

Registry Location :

New York