Judgment No. 4527
Decision
The complaints are dismissed.
Summary
The complainants impugn WHO’s decision to postpone implementation of the mandatory age of separation adopted by the United Nations General Assembly in Resolution 70/244 of 23 December 2015.
Judgment keywords
Keywords
un common system; retirement age; complaint dismissed
Consideration 1
Extract:
On 16 April 2019 fifteen complaints were filed with the Tribunal, each by a former official of WHO. Each complaint form was in the same terms save in relation to the personal details of each complainant and the precise relief sought. Each complaint impugned a decision of 18 January 2019 and there was only one brief accompanying all 15 complaints. The genesis of the aggregation of these claims was a decision of the GBA to join the appeals of the complainants in the internal appeal process. In the Tribunal, each complainant seeks substantially the same relief though the different personal circumstances of each are reflected in the precise orders sought. Only one reply was filed by WHO and there was also only one rejoinder and one surrejoinder. In these circumstances, the complaints are joined in order that a single judgment can be rendered.
Keywords
joinder
Considerations 9-11
Extract:
The question of what constitutes an actionable breach of promise was discussed by the Tribunal in Judgment 3619, considerations 13 to 15. The following emerges from that discussion. It is not every statement made by or on behalf of an organisation that is capable of being characterised as a promise that gives rise to a legal obligation on the part of the organisation to honour the promise.
The various elements of a promise and surrounding circumstances that give rise to a legal liability to honour the promise, are fourfold. The first element is that there must be a promise to act or not act, or to allow. The second element is that the promise must come from someone who is competent or deemed competent to make it. The third element is that the breach of the promise would cause injury to the person who relies on it. The fourth is that the position in law should not have altered between the date of the promise and the date on which fulfilment is due. The third element has two sub-elements. One is that the promisee has relied on the promise and the second is that this reliance has caused injury to the promisee in the event of non-fulfilment of the promise. As the Tribunal noted in Judgement 3619, there are numerous decisions of the Tribunal applying these principles (see, for example, Judgments 3204, consideration 9, 3148, consideration 7, 3005, consideration 12, 2158, consideration 5, 2112, consideration 7, and 1278, consideration 12). However, they have, as their foundation, the decision of the Tribunal in Judgment 782 which was discussed in Judgment 3619. It is unnecessary to repeat that discussion in detail.
However, it is useful for present purposes to recall that the complainant in the proceedings resulting in Judgment 782 was successful because the defendant organisation failed to honour a promise (that the complainant would be granted an indefinite appointment) which he relied on (by leaving existing stable long-term employment), which caused him injury (lost future income). The complainant in the proceedings resulting in Judgment 3619 failed on the plea of breach of promise because she failed to establish reliance on the alleged promise, let alone that her reliance on the promise caused her injury. As the Tribunal said in that judgment, in consideration 17, “the injury (ordinarily financial injury) must flow from and occur by reason of the failure of the defendant organisation to honour the promise made and relied upon”. The complainant in proceedings leading to a more recent judgment, Judgment 3677, failed on a very similar plea of breach of promise for substantially the same reasons.
Reference(s)
ILOAT Judgment(s): 782, 1278, 2112, 2158, 3005, 3148, 3204, 3619, 3677
Keywords
promise
Consideration 14
Extract:
[T]he complainants simply continued in employment subject to then subsisting provisions concerning the age of retirement. They did not rely on a promise in doing this. Indeed, it is clear they hoped that by continuing in employment they would gain the benefit of an altered mandatory age of separation. While that hope was not realised, they did not act to their detriment because of any promise. The plea based on breach of a promise is unfounded.
Keywords
promise; retirement age
Consideration 15
Extract:
[T]he Tribunal has recognised in Judgment 3071, considerations 12 and 13 (citing Judgment 2915), that differing ages of retirement referable to different pension entitlements are not inherently discriminatory.
Reference(s)
ILOAT Judgment(s): 2915, 3071
Keywords
discrimination; retirement age
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