Judgment 2845
107th session, 2009
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
According to Article 9.8, paragraph 2, of the UPU Staff Regulations, the Director General may, in the interest of the Union, extend the age limit in exceptional cases. The Tribunal considers that "the Director General's refusal to extend the complainant's service beyond the statutory age limit constitutes an act of retaliation [...]. The Director General used his discretionary authority for purposes other than those for which it was intended, thereby committing an abuse of authority. It follows that the impugned decision must be set aside."
Reference(s)
Organization rules reference: Article 9.8, paragraph 2, of the UPU Staff Regulations
Keywords:
age limit; amendment; career; complaint allowed; decision quashed; discretion; exception; executive head; extension; hidden disciplinary measure; misuse of authority; organisation's interest; purpose; refusal; staff regulations and rules;
Judgment 2669
104th session, 2008
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
The Director-General's authority to extend a staff member's service beyond the retirement age is found in Staff Regulation 301.9.5. "This provision makes it clear that a decision to grant an extension of a staff member's contract is within the discretionary authority of the Director-General. It is well established in the case law that the Tribunal will only intervene in these circumstances if it can be shown that the executive head of the organisation acted without authority, breached a rule of form or procedure, or that the decision was based on a mistake of fact or law, or overlooked an essential fact, or that clearly mistaken conclusions were drawn from the facts."
Reference(s)
Organization rules reference: FAO Staff Regulation 301.9.5
Keywords:
age limit; case law; competence of tribunal; contract; decision; discretion; disregard of essential fact; executive head; extension; flaw; mistake of fact; mistake of law; mistaken conclusion; procedural flaw; refusal; retirement;
Judgment 2513
100th session, 2006
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
The Deputy Director General submitted a memorandum requesting one-year extensions of contract for the complainant and six other officials who had reached the statutory age of retirement. The Director General dealt with all seven requests. Three were granted. In the complainant's case, the request for extension was simply turned down without any reason being given. The Tribunal recalls its case-law according to which a provision such as Staff Regulation 4.05 gives the Director General a wide measure of discretion and the Tribunal will not interfere in the exercise of that discretion except in extremely limited circumstances. The Tribunal recently confirmed as much in Judgment 2377, which also concerns the IAEA retirement policy. That case is not authority, however, for the proposition that the power to extend appointments beyond normal retirement age can be exercised arbitrarily.
In the present case, "[i]t is impossible to conclude other than that the decision in the complainant's case was made for some undisclosed or purely arbitrary reason. Therefore, it cannot stand."
Reference(s)
Organization rules reference: IAEA Staff Regulation 4.05
ILOAT Judgment(s): 2377
Keywords:
age limit; bias; case law; complaint allowed; decision; decision quashed; discretion; duty to substantiate decision; equal treatment; exception; grounds; judicial review; limits; organisation's duties; retirement; staff regulations and rules;
Judgment 2377
98th session, 2005
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
The complainant contests the decision not to extend his fixed-term appointment beyond the statutory retirement age. Provisional Staff Regulation 4.05 "makes it clear that the decision whether or not to grant an extension to any particular staff member is peculiarly a matter for the exercise of the Director General's discretion. The Tribunal will only interfere with such exercise on very limited grounds, none of which has been established by the complainant. The fact that such extensions may have been granted to a number of other staff members is simply irrelevant in the circumstances. No one has a right to be retained beyond the applicable normal retirement age, which in the complainant's case was 60."
Reference(s)
Organization rules reference: AIEA Provisional Staff Regulation 4.05
Keywords:
age limit; burden of proof; competence of tribunal; contract; difference; discretion; equal treatment; executive head; extension; grounds; lack of evidence; limits; refusal; retirement; right; staff regulations and rules;
Judgment 2204
94th session, 2003
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 6
Extract:
THE ORGANISATION "EXPRESSES DOUBT AS TO THE LOCUS STANDI OF MOST OF THE COMPLAINANTS, WHO ARE STILL FAR FROM THE AGE OF RETIREMENT [...]. IN FACT, ALL THE COMPLAINANTS, REGARDLESS OF THEIR AGE, HAVE AN OBVIOUS INTEREST IN ASCERTAINING AS SOON AS POSSIBLE THE CONDITIONS ON WHICH THE PENSION RIGHTS ACQUIRED BY VIRTUE OF THEIR EMPLOYMENT PRIOR TO JOINING [THE ORGANISATION] MAY BE TRANSFERRED TO THEIR NEW PENSION SCHEME."
Keywords:
age limit; cause of action; condition; pension; pension entitlements; receivability; retirement; transfer of pension rights;
Judgment 2125
93rd session, 2002
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATIONS 5 AND 6
Extract:
THE COMPLAINANT'S REQUEST TO HAVE HIS CONTRACT EXTENDED BEYOND RETIREMENT AGE WAS NOT ALLOWED. "ON THE MERITS, THE AGENCY IS UNDOUBTEDLY RIGHT IN POINTING OUT THAT THE DIRECTOR GENERAL HAS DISCRETION IN THE MATTER, OVER WHICH THE TRIBUNAL HAS ONLY A LIMITED POWER OF REVIEW. THIS DISCRETION ENABLES THE AGENCY TO DEPART FROM THE RULE GOVERNING THE NORMAL AGE OF RETIREMENT. [...]
ALTHOUGH THE DIRECTOR GENERAL CAN DETERMINE THE INTEREST OF THE AGENCY, HIS DECISIONS MUST BE BASED ON CLEAR AND COHERENT REASONS. IN THIS CASE, THE REASON GIVEN - THAT THE REQUEST FOR AN EXTENSION CONTAINED NO INDICATION AS TO WHETHER ANY OF THE CRITERIA [ON THE BASIS OF WHICH HE MAY AUTHORISE SUCH AN EXTENSION] HAD BEEN SATISFIED - IS NOT VALID, AND THE REASON BASED ON 'REJUVENATION' OF THE STAFF IS TOO GENERAL TO CONSTITUTE A SUFFICIENT JUSTIFICATION FOR THE REFUSAL OF THE COMPLAINANT'S REQUEST." THE TRIBUNAL CONSIDERS THAT "THIS REASON IS NOT IN ITSELF REPREHENSIBLE, BUT IT COULD BE USED TO JUSTIFY A SYSTEMATIC REFUSAL TO DEPART FROM THE RULE GOVERNING THE NORMAL AGE OF RETIREMENT. [BY SETTING OUT THE CRITERIA] THE IAEA ESTABLISHED FOR ITSELF A NUMBER OF RULES WHICH IT MUST APPLY."
Keywords:
age limit; complaint allowed; contract; criteria; decision; definition; discretion; exception; executive head; extension; grounds; iloat; international civil servant; judicial review; organisation; organisation's duties; organisation's interest; patere legem; refusal; request; retirement; written rule;
Judgment 1637
83rd session, 1997
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 16(C)
Extract:
THE COMPLAINANT CLAIMS AN INVALIDITY PENSION. THE TRIBUNAL HOLDS THAT HE IS NOT ENTITLED TO ONE. "ARTICLES 11.1 AND 11.2, [OF UNIDO'S STAFF RULES], WHICH DEAL WITH TOTAL OR PARTIAL DISABILITY ATTRIBUTABLE TO THE PERFORMANCE OF OFFICIAL DUTIES, DO NOT APPLY TO CASES LIKE THIS ONE WHERE, AFTER SEVERAL MONTHS' SICK LEAVE ON FULL PAY, THE MEMBER DOES NOT GO BACK TO WORK AND THE REASON IS NOT THAT HE IS UNFIT BUT THAT HE HAS REACHED THE AGE OF RETIREMENT AND HAS HAD TO STOP WORK BECAUSE OF A DECISION NO LONGER SUBJECT TO CHALLENGE."
Reference(s)
Organization rules reference: ARTICLES 11.1 AND 11.2 UNIDO STAFF RULE
Keywords:
age limit; complaint allowed; complaint allowed in part; invalidity; res judicata; retirement; separation from service; service-incurred; sick leave; staff regulations and rules;
Judgment 1143
72nd session, 1992
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATIONS 5 AND 6
Extract:
THE COMPLAINANT APPLIED FOR EXTENSION OF THE AGE LIMIT ON THE GROUNDS THAT WITHOUT IT HER PENSION WOULD BE PALTRY AND THAT HER CONTINUED SERVICE WOULD BE IN THE ORGANIZATION'S INTEREST. THE DIRECTOR GENERAL REJECTED HER REQUEST, RELYING ON JUDGMENT 358 [...], WHICH HE SAID PRECLUDED HIS ACTING IN THE EXCLUSIVE INTERESTS OF THE STAFF MEMBER, AND ON THE FACT THAT STAFF REGULATION 908 PREVENTED HIM FROM MAKING AN EXCEPTION TO THE AGE-LIMIT RULE TO TAKE ACCOUNT OF AN OFFICIAL'S FINANCIAL SITUATION. THE TRIBUNAL HOLDS THAT "IN STATING HIS DECISION IN THOSE TERMS THE DIRECTOR GENERAL MISTOOK THE SCOPE OF HIS DISCRETION AND THE RATIO OF JUDGMENT 358: HE MAY NOT REFUSE TO EXERCISE HIS DISCRETION JUST BECAUSE HE IS BEING ASKED TO TAKE A STAFF MEMBER'S FINANCIAL SITUATION INTO ACCOUNT." MOREOVER, HER PERFORMANCE REPORTS WERE GOOD. "THE DIRECTOR GENERAL ERRED IN LAW BECAUSE HIS DECISION WAS NOT IN ACCORDANCE WITH REGULATION 908(A). HE COULD HAVE TAKEN INTO ACCOUNT THE COMPLAINANT'S FINANCIAL SITUATION PROVIDED THAT THAT WAS NOT THE EXCLUSIVE FACTOR AND THAT THE INTERESTS OF THE ORGANIZATION WERE ALSO TAKEN INTO ACCOUNT."
Reference(s)
Organization rules reference: WIPO STAFF REGULATION 9.8
ILOAT Judgment(s): 358
Keywords:
age limit; case sent back to organisation; complaint allowed; decision quashed; exception; mistake of law; organisation's interest; pension; retirement;
CONSIDERATION 3
Extract:
"REGULATION 9.8 CONFERS ON THE DIRECTOR GENERAL DISCRETION TO EXTEND THE AGE LIMIT IN INDIVIDUAL CASES IF HE CONSIDERS THAT TO BE IN THE ORGANIZATION'S INTERESTS. THE DETERMINATION OF WHAT THE ORGANIZATION'S INTERESTS ARE BEING PECULIARLY WITHIN THE DIRECTOR GENERAL'S DISCRETION, THE TRIBUNAL HAS A LIMITED POWER OF REVIEW AND WILL INTERFERE WITH HIS DECISION ONLY IF IT WAS TAKEN WITHOUT AUTHORITY OR [ETC]".
Reference(s)
Organization rules reference: WIPO STAFF REGULATION 9.8
Keywords:
age limit; complaint allowed; decision quashed; discretion; exception; extension; judicial review; organisation's interest; retirement;
Judgment 908
64th session, 1988
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Extract:
THE RULE ON PROMOTION IN THE EPO IS NOT TO TAKE ACCOUNT OF PROFESSIONAL EXPERIENCE GAINED BEFORE THE AGE OF 25. THE COMPLAINANT CONTENDS THAT NEW GUIDELINES CALLING FOR "MINIMUM AGE REQUIREMENTS" SUPERSEDED THE RULE. HAVING CONSIDERED THE NEW GUIDELINES, THE TRIBUNAL FINDS THAT THE 25-YEAR RULE HAS NOT BEEN CHANGED SINCE THE MINIMUM AGE REQUIREMENT HAS EXACTLY THE SAME EFFECT.
Keywords:
age limit; professional experience; promotion; reckoning; seniority;
Judgment 884
64th session, 1988
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 3
Extract:
THE COMPLAINANT SEEKS TO HAVE HIS PROFESSIONAL EXPERIENCE RECKONED ANEW. HE CONTENDS THAT NEW GUIDELINES SUPERSEDE THE RULE PRECLUDING THE RECKONING OF EXPERIENCE GAINED BEFORE THE AGE OF TWENTY-FIVE. THE TRIBUNAL HOLDS THAT, ALTHOUGH REPLACEMENT OF THE RULE HAS BEEN PROPOSED, "UNTIL A DECISION HAS BEEN TAKEN BY THE COMPETENT AUTHORITY THE 25-YEAR RULE REMAINS IN FORCE."
Keywords:
administrative instruction; age limit; amendment; condition; professional experience; proposal; provision; reckoning; seniority;
Judgment 580
51st session, 1983
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 3
Extract:
THE COMPLAINANT PLEADS AGAINST THE ADMISSIBILITY OF THE CANDIDACY ON THE GROUNDS THAT THE AGE-LIMIT WAS NOT OBSERVED. "THIS PLEA IS NOT A MATTER OF POLICY AND IT IS ONE WHICH THE TRIBUNAL WILL ENTERTAIN IN EXERCISE OF ITS POWER OF REVIEW. FOR THAT REASON IT NEED NOT DETERMINE WHETHER, BEING A SO-CALLED 'POLICY' DECISION, THE ACTUAL CHOICE OF A CANDIDATE IS A MATTER OUTSIDE ITS COMPETENCE."
Reference(s)
ILOAT reference: ARTICLE 11.3 DU STATUT DU PERSONNEL DU BIT
Keywords:
age limit; candidate; competence of tribunal; executive head; judicial review;
Judgment 358
41st session, 1978
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATIONS
Extract:
"A DECISION BY THE DIRECTOR ... TO EXTEND A STAFF MEMBER'S APPOINTMENT BEYOND THE AGE LIMIT SET IN THE STAFF REGULATIONS IS PURELY DISCRETIONARY" AND THE TRIBUNAL MAY INTERFERE WITH SUCH A DECISION ONLY IN EXCEPTIONAL CIRCUMSTANCES SET OUT IN THE CASE LAW.
Keywords:
age limit; contract; discretion; extension; judicial review; retirement;
CONSIDERATIONS
Extract:
"ALTHOUGH THE DIRECTOR IS EMPOWERED TO EXTEND A STAFF MEMBER'S APPOINTMENT TO THE AGE OF 65, HE IS IN NO CASE BOUND TO DO SO. HE MAY EXERCISE THAT AUTHORITY TO ALLOW AN EXCEPTION ONLY IN THE INTERESTS OF THE [ORGANISATION], NOT IN THE EXCLUSIVE INTERESTS OF THE STAFF MEMBER. IN DECIDING ON THE COMPLAINANT'S CASE HE WOULD HAVE TO BEAR IN MIND THE POSSIBILITY THAT THE COMPLAINANT MIGHT OBTAIN A PENSION, BUT THAT WAS ONLY ONE FACT TO BE TAKEN INTO ACCOUNT AMONG OTHERS."
Keywords:
age limit; contract; contributory service; discretion; extension; organisation's interest; pension; retirement; staff member's interest;
Judgment 267
36th session, 1976
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 1
Extract:
THE COMPLAINANT HAD REACHED RETIREMENT AGE AND HIS EMPLOYMENT WAS NOT EXTENDED BY THE DIRECTOR-GENERAL. "...IT DOES NOT APPEAR FROM THE DOSSIER THAT ON HIS RETURN TO HEADQUARTERS THE COMPLAINANT WAS PROMISED ANY FURTHER APPOINTMENT." NOR DID THE MATERIAL LETTER "IMPLY ANY SUCH PROMISE, PARTICULARLY SINCE IT WAS NOT ADDRESSED TO THE COMPLAINANT."
Keywords:
age limit; consequence; contract; evidence; headquarters; lack of evidence; offer; promise; retirement; transfer;
CONSIDERATION 2
Extract:
THE COMPLAINANT MAINTAINS THAT THE CIRCUMSTANCES OF HIS DISMISSAL DAMAGED HIS REPUTATION. "THERE IS NOTHING DISHONOURABLE ABOUT HAVING TO RETIRE AT THE NORMAL AGE STIPULATED IN THE STAFF REGULATIONS. MOREOVER ... THE ORGANIZATION GAVE HIM A WRITTEN TESTIMONIAL THANKING HIM FOR HIS SERVICES OVER THE PAST TWENTY-TWO YEARS, AND THAT SERVED TO REMOVE - ASSUMING IT WERE NECESSARY - THE PREJUDICE HE HAS ALLEGED."
Keywords:
age limit; contract; enforcement; extension; fixed-term; lack of injury; non-renewal; refusal; retirement; staff regulations and rules;
CONSIDERATION 1
Extract:
UNDER THE APPLICABLE PROVISIONS, HEADQUARTERS OFFICIALS MUST RETIRE AT THE AGE OF SIXTY-TWO "UNLESS THE DIRECTOR-GENERAL [DECIDES] OTHERWISE FOR EXCEPTIONAL REASONS IN THE INTERESTS OF THE ORGANIZATION." IN THE PRESENT CASE, "THE DIRECTOR-GENERAL ABIDED BY THE GENERAL RULE AND WAS INDEED IN NO WAY REQUIRED TO GRANT AN EXEMPTION."
Keywords:
age limit; contract; discretion; extension; headquarters official; organisation's interest; retirement;
SUMMARY
Extract:
THE AGE LIMIT FOR HEADQUARTERS OFFICIALS IS 62, UNLESS OTHERWISE DECIDED BY THE DIRECTOR-GENERAL FOR EXCEPTIONAL REASONS; FOR FIELD OFFICIALS THERE IS A POSSIBILITY OF REMAINING IN SERVICE UNTIL 65, BUT NOT AS A MATTER OF COURSE [NOT APPLICABLE TO HOLDERS OF FIXED-TERM APPOINTMENTS]. THE COMPLAINANT HAD BEEN APPOINTED PROJECT DIRECTOR; HE WAS SUBSEQUENTLY RECALLED TO HEADQUARTERS AND INFORMED THAT HIS CONTRACT WOULD TERMINATE. THE TRIBUNAL DISMISSES HIS CLAIM FOR THE QUASHING OF THE DECISION TO RETIRE HIM.
Keywords:
age limit; contract; difference; discretion; exception; executive head; extension; field; headquarters official; retirement;
Judgment 223
31st session, 1973
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATIONS
Extract:
IT APPEARS FROM THE EVIDENCE THAT THE "SOLE PURPOSE [OF THE DECISION NOT TO RENEW THE COMPLAINANT'S CONTRACT UPON HIS REACHING RETIREMENT AGE] WAS TO REMOVE [HIM]." CERTAIN IRREGULARITIES COULD BE OBSERVED IN HIS SERVICE, BUT NO SERIOUS INQUIRY WAS MADE NOR ANY DISCIPLINARY PROCEEDINGS UNDERTAKEN. "...THE DECISION ... WAS BASED ON MERE SUSPICIONS UNSUPPORTED BY THE SLIGHTEST EVIDENCE, AND IS THEREFORE TAINTED BY MISUSE OF AUTHORITY AND MUST BE QUASHED."
Keywords:
age limit; contract; disciplinary procedure; fixed-term; inquiry; lack of evidence; misconduct; misuse of authority; non-renewal; retirement;
CONSIDERATIONS
Extract:
THE RETIREMENT AGE IS FIXED AT SIXTY. "...IN EXCEPTIONAL CASES THE DIRECTOR MAY RETAIN AN OFFICIAL IN SERVICE UNTIL THE AGE OF SIXTY-FIVE. THE TEXT ... ALLOWS THE DIRECTOR FULL DISCRETION IN DETERMINING THE SPECIAL CASES IN WHICH AN OFFICIAL MAY BE RETAINED IN SERVICE BEYOND THE NORMAL AGE LIMIT. THE DIRECTOR THUS ENJOYS DISCRETIONARY POWER IN THIS RESPECT..."
Keywords:
age limit; contract; discretion; exception; extension; judicial review; retirement;
CONSIDERATIONS
Extract:
THE NON-RENEWAL DECISION HAVING TO BE QUASHED FOR MISUSE OF AUTHORITY, ACCOUNT MUST BE TAKEN OF MATERIAL AND MORAL DAMAGE AND OF THE FACT THAT THE COMPLAINANT COULD NOT HAVE BEEN RETAINED IN SERVICE BEYOND THE AGE OF 65. "IT WOULD THEREFORE BE A FAIR ASSESSMENT OF THE CIRCUMSTANCES AS A WHOLE TO AWARD ... COMPENSATION IN AN AMOUNT OF 35,000 SWISS FRANCS, LESS THE SUM ALREADY GRANTED TO HIM BY [THE ORGANISATION]."
Keywords:
age limit; amount; complaint allowed; contract; criteria; damages; decision quashed; fixed-term; misuse of authority; non-renewal; retirement;
Judgment 204
30th session, 1973
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATIONS
Extract:
UNDER THE APPLICABLE PROVISION, THE PENSIONABLE AGE FOR OFFICIALS IS 62. THE DIRECTOR-GENERAL'S DECISION WAS TAKEN IN PURSUANCE OF THE ABOVE-MENTIONED PROVISION. ALTHOUGH THE PROVISION EMPOWERS THE DIRECTOR-GENERAL TO RETAIN THE SERVICES OF AN OFFICIAL BEYOND THE AGE-LIMIT, THIS DEROGATION IS CONFINED TO EXCEPTIONAL CASES AND LIES WITHIN THE DISCRETION OF THE HEAD OF THE ORGANISATION. IN THE PRESENT CASE, THE DIRECTOR-GENERAL'S APPRAISAL OF THE FACTS SHOWS NONE OF THE FLAWS WHICH THE TRIBUNAL MAY CORRECT.
Keywords:
age limit; contract; discretion; exception; extension; judicial review; provision; retirement; staff regulations and rules;
Judgment 12
4th session, 1954
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 11
Extract:
THE PROVISION TO WHICH THE COMPLAINANT REFERS "STATES EXPRESSLY THAT THE DIRECTOR-GENERAL MAY RETAIN AN OFFICIAL IN SERVICE UNTIL HE REACHES THE AGE OF 65 YEARS BUT... IT GRANTS THE DIRECTOR-GENERAL DISCRETIONARY POWER TO DECIDE IN WHICH CASES EXCEPTION MAY BE JUSTIFIED."
Keywords:
age limit; contract; discretion; exception; extension; fixed-term; non-renewal; retirement;
