Judgment No. 3546
1. The Director-General’s decision of 19 December 2012 is set aside insofar as he did not grant the complainant’s request for the cancellation of the decisions to retain Ms D. in service during the periods 1 July 2011 to 4 November 2011 and 7 November 2011 to 6 November 2012. Those decisions are also set aside.
2. All other claims are dismissed.
The complainant challenges the principle of extending the active service of a staff member beyond the age of 65 and the terms thereof.
extension; retirement; age limit
"[T]he ILO [...] contends that, in his decision [...], the Director-General endorsed the JAAB’s recommendation that he should review and clarify the Office’s practices with regard to the employment of staff members beyond the statutory retirement age. However, the mere fact that the Director-General thus undertook to adopt general measures on that matter in the future obviously does not render moot the complainant’s request [...]."
"It is unnecessary to determine whether the complainant’s status as a staff representative in itself gives him a cause of action to challenge the administrative decisions at issue in this case. Indeed, the Tribunal notes that, at the material time, he was a member of the Joint Negotiating Committee, and in his complaint he alleges a breach of the Office’s duty, under Article 11.3 of the Staff Regulations, to inform that Committee of any decision to retain an official at a grade equal to or higher than P.5 in active service beyond the normal retirement age. Insofar as he thus alleges a failure to respect the prerogatives of a body of which he himself was a member, the complainant has cause of action which gives him standing to bring this complaint (see, for example, Judgment 2036, under 4, and Judgment 3053, as well as the analysis thereof in Judgment 3291, under 7)."
ILOAT Judgment(s): 2036, 3053, 3291
locus standi; staff representative
"In the version in force at the time of those decisions, Article 11.3 of the Staff Regulations, which stipulated that an official must retire on the last day of the month in which he or she reached the age of 60 or 62, depending on when he or she was appointed, stated that “[i]n special cases the Director-General may retain an official in service until the end of the last day of the month in which the official reaches the age of 65”. It is clear from these provisions that no appointment may be extended beyond that final limit, as the Tribunal has in fact already observed in Judgments 580, under 11, and 3071, under 12."
ILOAT Judgment(s): 580, 3071
"[T]he ILO’s argument that its failure to comply with this duty reflected a long-standing practice to which the Staff Union had never previously raised any formal objection is of no avail. Indeed, as the Tribunal has consistently held, a practice cannot become legally binding if, as is the case here, it contravenes a written rule that is already in force (see, for example, Judgments 1390, under 27, 2259, under 8 and 9, 2411, under 9, 2959, under 7, or 3071, under 28)."
ILOAT Judgment(s): 1390, 2259, 2411, 2959, 3071
"The Tribunal considers that the complainant has no cause of action entitling him to ask the Tribunal to order the ILO to reimburse the UNJSPF with the sums which it did not receive in respect of the extension of Ms D.’s appointment.
It must first be noted that, contrary to his submissions, his status as an official participating in an individual capacity in the UNJSPF does not give him a cause of action in this respect, since the fact that contributions to the Fund were not made in respect of another official’s appointment has no impact on his own situation. The complainant cannot therefore legitimately claim such reimbursement by the Organization. Nor indeed would he be entitled to request that the official herself be ordered to repay sums which she might have received in error (see Judgments 2281, under 4(a) and(b), and 3206, under 20). The complainant’s reference to Judgment 1330, concerning a decision which, on the contrary, affected the pension rights of the complainants themselves, is of no relevance here.
Neither can the complainant derive a cause of action, in this connection, from his status as a staff representative. Although he invokes the general interest in safeguarding the financial interests of the UNJSPF, or in ensuring that the Office’s governance rules are strictly observed, such an interest, however legitimate it might be, cannot in itself be regarded as one which the Tribunal is competent to protect.
In addition, the contention that the benefits enjoyed by Ms D. during the disputed period might have jeopardized respect for other officials’ pension rights by compromising the financial equilibrium of the UNJSPF must plainly fail, having regard to the amounts in question and the size of the Fund’s budget.
Since the Office’s special treatment of Ms D. does not have any direct and immediate impact on the terms of employment or the rights of other officials, the complainant has no standing to bring the above-mentioned claim in his capacity as a member of the Staff Union Committee (see, for cases raising similar issues, Judgments 3342, under 9 to 12, and 3343, under 2 to 5).
For the same reasons, the complainant has no standing to bring that claim in his capacity as a participants’ representative in the ILO Staff Pension Committee, on which he likewise relies."
ILOAT Judgment(s): 1330, 2281, 3206, 3342, 3343
locus standi; cause of action; unjspf