2023-UNAT-1347, Van Khanh Nguyen
The UNAT held that the ISA JAB was correct in determining that Ms. Nguyen was: (1) not entitled to a repatriation grant from ISA; (2) not entitled to payment for unused accrued annual leave, which was transferred to her subsequent employer, UNRWA; (3) not entitled to reimbursement for certain school supply expenses; and (4) not entitled to the non-removal allowance, which was a discontinued benefit. However, the UNAT also held that the ISA JAB erred in denying Ms. Nguyen a relocation grant, and erred in denying her the travel expenses and travel time from Kingston, Jamaica to New York. The UNAT denied Ms. Nguyen’s claim to USD 20,000 for the time and effort associated with this litigation.
The UNAT thus granted Ms. Nguyen’s appeal in part, and ordered ISA to pay Ms. Nguyen the expenses of the trip from Kingston to New York, per ISA Staff Rule 7.1, as well as compensation for travel time analogous to the day(s) of accrued annual leave, per ISA Staff Rule 9.9, and a lump sum of USD 18,000 for the shipment of household goods and personal effects upon separation from ISA.
Ms. Nguyen, a staff member of the UNFPA, was seconded to the International Seabed Authority (ISA), a secondment which was cut short when she accepted a second secondment to UNRWA. At the end of her secondment with ISA, Ms. Nguyen sought the payment of various entitlements, which was denied by the ISA Administration. Ms. Nguyen appealed to the ISA Joint Appeals Board (JAB).
In its decision in Case No. ISBA/JAB/Nguyen/2019/II (April 1, 2022), the ISA JAB denied all of Ms. Nguyen’s claims. The ISA JAB denied her request for a repatriation grant, payment of 28.5 days of accrued annual leave, USD 1,0692 in outstanding education expenses, a lump sum amount for airfare from Kingston, Jamaica to Hanoi, Vietnam for her and her dependents plus travel time, a USD 18,000 relocation grant, a non-removal allowance, and USD 20,000 in compensation for her time and efforts in litigating her case. The ISA JAB decision was premised, in large part, on its view that her entitlements were governed by the Inter-Organization Agreement Concerning Transfer, Secondments and Loans of staff among organizations applying the 山Common System of Salaries and Allowances, and not by the ISA Staff Regulations and Rules as contended by Ms. Nguyen.
Ms. Nguyen appealed.
Where a clear and unambiguous contractual undertaking has been made which forms part of the concluded relevant employment contract, as in the case at hand, the authority undertaking the contractual commitment will not be allowed to depart from it.
The Administration was bound to implement the specific terms of employment in accordance with the principle of good faith by which international organizations are bound and with their duty to treat their staff members with consideration and fairness, which constitute in their specific application an inextricable part of the parties’ compliance with the terms of appointment.
To permit the Administration to grant a discontinued benefit (the non-removal allowance) without proper legal authorization would result in the Administration arrogating a discretionary power to itself which it does not legally possess. If the grant of the non-removal allowance as a matter of right is unauthorized by the policy, the application of estoppel would have the effect of ratifying decisions that the Administration of ISA is not allowed to make. That would undermine the principle of legality. It would render the policy and its specific parameters nugatory.
The claimant bears the burden of establishing the negative consequences resulting from illegality, namely that there is a “cause-effect” nexus between the illegality of the contested administrative decision and the harm itself. If the claimant does not discharge this burden, the compensation cannot be awarded.
ISA is ordered to pay Ms. Nguyen the expenses of a trip from Kingston to New York, as well as compensation for travel time; and a lump sum of USD 18,000 for the shipment of household goods and personal effects. Interest will accrue on the total sum from the date this Judgment is entered in the Register at the the current US Prime Rate until payment. If the total sum is not paid within the 60-day period, an additional five percent shall be added to the US Prime Rate until the date of payment.