UNDT/2017/060, Mofiling
The Tribunal concluded that the Respondent failed to notify the Applicant of the overpayment and that this failure was a breach of its obligation under section 2.3 of ST/AI/2009/1. Although the Applicant failed to report the overpayment, the Tribunal found that he was not negligent in his duty to report because he was caught up in a perilous security situation at the time he received his pay slip at the end of November 2015, which may have caused him to not advise the Respondent of the overpayment. The Tribunal noted further that ST/AI/2009/1 does not make the Respondent’s obligation to notify contingent upon the Applicant’s duty to report. As long as the staff member has not reported the overpayment, the Organization’s duty under section 2.3 remains. The Tribunal noted that the installment payment option stipulated at section 3.1 may be utilized only after it is established that the overpayment resulted from an administrative error on the part of the Organization and the staff member proves that he was unaware or could not reasonably have been expected to be aware of the overpayment. The Tribunal concluded that there was an administrative error on the part of the Organization that caused the overpayment but that the Applicant was aware of or should have been aware of the overpayment as of 26 November 2015. Since the second element set out in section 3.1 of ST/AI/2009/1 had not been satisfied, a recovery by installment could not have afforded to the Applicant. The Tribunal held that the Applicant did not suffer any prejudice and refused to grant the remedies sought because: (i) the Applicant was aware or should have been aware of the overpayment and (ii) he was not entitled to the USD6,138.06 in the first place.
Recovery of USD6,138.06 from the Applicant’s June 2016 salary for a 2015 education grant overpayment.
The Organization’s right to recover overpayments is not unqualified. The right to recover under sections 2.1 and 2.2 of ST/AI/2009/1 is interwoven with a duty, under section 2.3, to “immediately notify the staff member” of the overpayment once it is discovered. The underlying premise for this notification is to: (i) prevent confusion on the part of staff members as to the basis of the recovery and (ii) allow staff members to prepare themselves for a potential financial squeeze. Sections 2.1, 2.3 and 3.1 of ST/AI/2009/1, confer on the Organization the discretionary authority to either recover the amount overpaid fully from a staff member’s monthly payment, agree with the staff member on alternative means of repaying the amount due, either by bank or personal cheque or agree with the staff member on installment payments.
The Respondent did not act arbitrarily under the circumstances of this case because he had a right to recover the overpayment in full from the Applicant’s June 2016 salary.