2022-UNAT-1253, Cecile Berthaud
The Appeals Tribunal’s first finding is that the UNDT was correct in its holding that Section 17(d) of the Repatriation Policy is not in conflict with Staff Rule 3.19 (g) and, thus, the two sets of provisions fall to be read together coherently.
We also find correct the UNDT’s reasoning that the application of Section 17(d) of the UNDP Repatriation Policy is not limited to UNDP staff members as it seeks to reconcile payments made to staff members within the United Nations system, irrespectively of the fact that the spouse is a UNDP staff member too or not, avoiding in any case to duplicate the payment of the same entitlement; and that actually, both UNDP and WFP are part of the 山Common System, the benefits and entitlements of which are established by the International Civil Service Commission, and the UNDP Policy with respect to preventing duplicate payment of the repatriation grant applies to staff members with spouses in other 山Common System organizations, not just to spouses in UNDP alone.
However, the Appeals Tribunal finds that the UNDT’s conclusions that the UNDP Policy imposes that if one spouse is paid the single rate for his/her entire period of qualifying service, then the other spouse can also only be paid the single rate for his/her entire period of qualifying service, and that the WFP’s decision to pay Ms. Berthaud’s husband repatriation grant at the single rate for his entire period of qualifying service precluded UNDP from paying Ms. Berthaud at the dependency rate under the UNDP Policy, are legally not correct.
Ms. Berthaud clearly made her choice to a repatriation grant at the dependency rate to which she was entitled. Thus, given that her husband had completed an aggregate service exceeding the minimum of five years of qualifying service per Sections 3(a) and 6(a) of the UNDP Repatriation Policy, he was entitled to the repatriation grant for the balance of the remaining service period subsequent to the separation of Ms. Berthaud, notwithstanding that it had been less than five years of continuous service, i.e., only three years.
On appeal, Ms. Berthaud requests the Appeals Tribunal to order payment of her repatriation grant at the dependency rate with interest. Nevertheless, this issue cannot be determined solely as a question of law without the proper factual findings which make possible the calculation of the exact amount of repatriation grant to which Ms. Berthaud is entitled. This is much more so, in view of the principle of the prohibition of reformatio in pejus which limits the authority of the Appeals Tribunal–and the same goes for the first instance Tribunal that is seized of an application for judicial review against an administrative decision- to take any decision that is more unfavourable to Ms. Berthaud within the scope of the appeal initiated by the latter, unless there is an appeal or cross-appeal launched by the Administration in the specific case, which is not the case here.
Ms. Berthaud’s claim requires factual findings in order to ascertain whether the repatriation grant to which she is eventually entitled, following the application of Section 17(d) of the UNDP Repatriation Policy, as interpreted by this Tribunal, is more financially advantageous than that accorded to her with the contested administrative decision. This issue is a matter more properly for determination by the UNDT. This respects the two-tier system of judicial review, where the first stage must be completed before issues may be addressed on appeal, as provided for in the Statutes of the two Tribunals. Therefore, we are remanding these discrete issues to the UNDT, pursuant to Article 2 (4)(b) of our Statute.
UNDT/2021/063
The first step of the interpretation of any kind of rules, worldwide, consists of paying attention to the literal terms of the norm. When the language used in the respective disposition is plain, common and causes no comprehension problems, the text of the rule must be interpreted upon its own reading, without further investigation. Otherwise, the will of the statute or norm under consideration would be ignored under the pretext of consulting its spirit. If the text is not specifically inconsistent with other rules set out in the same context or higher norms in hierarchy, it must be respected, whatever technical opinion the interpreter may have to the contrary, or else the interpreter would become the author.
When both spouses are staff members and both entitled to the repatriation grant and there exist dependent children, the first spouse to separate from service is entitled to claim payment of the repatriation grant at the dependency rate. In this case, per the plain language of the relevant provision, there are two options open to the second spouse to separate; either he/she may lay claim to a repatriation grant for the period of service subsequent to the separation of the first spouse, i.e., to the balance, at the single rate; or, if he/she is eligible to a dependency rate, claim that rate for the whole period of qualifying service, minus the amount of the grant paid to the first spouse.
Further, as demonstrated plainly in the wording of the relevant sentence of the ultimate paragraph of Section 17(d) of the applicable Policy, when the first spouse to separate exercises his/her choice made under the first option, and the second spouse has completed a minimum of five years of qualifying service per Sections 3(a) and 6(a) of the UNDP Repatriation Policy, then the latter is entitled to the repatriation grant for the balance of the remaining service period subsequent to the separation of the first spouse irrespective of whether that period amounts to or exceeds five years of continuous service. The relevant provision does not expressly state, nor does it even repeat the language of the first sentence of Section 17(d) of the UNDP Repatriation Policy to that effect, namely that for the payment of the grant to the second spouse a “qualifying service” of a minimum service period of five years is required for that subsequent service.
The purpose of the law is that only one spouse should get paid at the dependency rate for any overlapping period of qualifying service, with the other spouse receiving the balance at the single rate for his/her service period subsequent to the first spouse’s separation without the latter being entirely disentitled by the choice of the first in case the ensued balance in service is less than five years.
By applying the general principle of interpretation ubi lex non distinguit, nec nos distinguere debemus, i.e., where the law does not distinguish, neither should we distinguish, the second spouse to separate is entitled to the repatriation grant for the balance of the remaining service period subsequent to the separation of the first spouse even if his/her subsequent service is less than the minimum five years of continuous service.
The appeal is upheld and Judgment No. UNDT /2021/063 is hereby vacated. The discrete issues of (i) the exact amount of the repatriation grant to which Ms. Berthaud is entitled, per Section 17(d) of the UNDP Repatriation Policy, as interpreted by this Tribunal, and (ii) whether her claim to that entitlement is eventually more financially advantageous than that accorded to her with the contested administrative decision are hereby remanded to the UNDT for consideration.