2022-UNAT-1295, Alejandro Arigon
UNAT dismissed the appeal and affirmed the UNJSPB decision.
UNAT recalled that at the time of Mr. Arigon’s entry into participation in 2002, Article 24 did not allow him the option to restore his prior contributory service because that option was limited to participants whose previous period of contributory service was less than five years and who had received a withdrawal settlement; neither of which applied to him. When the 2007 amendment to Article 24 was introduced, he had a one-year window, from 1 April 2007 to 1 April 2008, during which he could elect to restore his prior period of contributory service. UNAT concluded that Mr. Arigon missed the deadline by several years, and having not made a request to restore his prior contributory service by the 1 April 2008 deadline, he was now ineligible to do so. UNAT found that the UNJSPF had no discretion to award a benefit contrary to the explicit terms of its Regulations at the expense of all participants.
UNAT then turned to consider whether Mr. Arigon was entitled to any other relief on the basis that the UNJSPF did not discharge its duty of care or good faith by not adequately informing Mr. Arigon of the 2007 amendment. UNAT found that while the duty of good faith made it incumbent on the UNJSPF to respond appropriately to requests for information, Mr. Arigon did not raise any pertinent enquiry during the window period in which he was entitled to restore his prior contributory service. UNAT concluded that since he raised the matter for the first time seven or more years after the close of the window period, any argument that the UNJSPF did not adequately respond to a pertinent enquiry about benefit choices was not sustainable.
UNAT was satisfied that the UNJSPF took reasonable general steps to inform participants as widely as possible of the changes. In advance of the amendments to Article 24(a) being approved, it openly publicized, in its annual letters, that the UNJSPB was considering the issue. Once the amendments to Article 24(a) were approved, the UNJSPF posted the amended Regulations on its website, highlighted the changes in its 2007 annual letter; and it posted a dedicated link on its website, which clearly set out the changes to Article 24(a) and the relevant deadline. The information was easily accessible on the website.
The UNJSPB Standing Committee upheld the decision to deny Mr. Arigon's request to restore his prior period of contributory service on the ground that he had made the request after the expiry of the applicable deadline under Article 24(a) of the UNJSPF Regulations.
Mr. Arigon appealed.
There is no provision in the Regulations that requires the UNJSPF to inform participants of any changes or amendments to the Regulations personally. However, the implied duty of good faith requires that the UNJSPF should properly disclose and communicate information that affects the entitlement of participants. The nature and extent of that duty is context specific and thus will depend on the circumstances.
Where a participant must exercise a choice between alternative benefits or courses of conduct, the UNJSPF has a duty in response to a pertinent enquiry to inform the participant properly of all the alternatives in a clear and understandable way as to allow for a proper opportunity for making an informed choice. The duty of good faith makes it incumbent on the UNJSPF to respond appropriately to requests for information.
Normally, the duty to disclose relevant generic information to members and beneficiaries will be fulfilled if it is communicated by reasonably available means.
Ignorance of the law is no excuse and participants of the UNJSPF are required to know the rules that apply to them. The duty of good faith makes it incumbent on the UNJSPF to respond appropriately to requests for information. However, the onus is on the participant to acquaint him/herself with his or her benefit entitlements under the rules and to seek information from the UNJSPF if he or she is unsure of how to interpret the Regulations. There is no duty on the UNJSPF to keep each and every member abreast of changes that may or may not affect him or her.