UNDT/2014/043, Aliko
When joining UNOPS in 2009, the Applicant’s nationality for UN purposes had been recorded as French. Since then, he had submitted various requests to have this changed, however, despite several negative decisions rejecting his request he submitted a request for management evaluation only in 2013. He had also, while being aware that his request for change of nationality was rejected, submitted education grant claims. These claims were approved and processed by UNOPS, by mistake, and between 2011 and 2012 he was paid over USD60000 for school years 2009 through 2012. The Tribunal found that the appeal against the decision not to change the Applicant’s nationality, as well as against the decision to recover the overpayment with respect to education grant payments were time-barred. It further found that the decision to use leave balance and separation entitlements for recovery of the overpayment was well-founded. However, the Tribunal found that the decision to withhold the separation notification from the UNJSPF was unlawful. It ordered UNOPS to transmit to the UNJSPF the separation notification and granted the Applicant compensation for material damages.
The Applicant, a French and Albanian national, appealed the decisions not to change his nationality for UN purposes from French to Albanian, to use leave balance and separation entitlements for education grant reimbursements and not to forward his separation documents to the UNJSPF.
Receivability ratione temporis: Statutory time limits have to be enforced strictly and a decision that merely confirms an earlier decision does not lead to the deadline under staff rule 11.2(c) to start anew. Use of leave balance and other emoluments: Under the terms of ST/AI/2009/1 and former staff rule 3.17(c)(ii)—current staff rule 3.18(c)(ii)—the Administration is entitled to use leave balance and other separation entitlements to partially settle an Applicant’s indebtedness to the Organization. Withholding of separation documents from the UNJSPF: Staff members’ rights to payment of their pension benefits are determined exclusively under the Regulations of the UNJSPF and no deductions may be made from the benefits due from the Pension Fund, except for indebtedness to the Fund as well as under the very strict conditions set forth under art. 45 bis of the UNJSPF Regulations. However, administrative Instruction ST/AI/155/Rev.2 allows the Organization to refuse to issue the P.35 form until a staff member has settled all indebtedness to the United Nations. In view of the unambiguous wording of the administrative instruction, the Organization cannot argue that since the document referred to therein—P.35—is “no longer usedâ€, the application of ST/AI/155/Rev.2 has to be adjusted to the current practice with respect to the interaction of the employing organization with the UNJSPF; on the contrary, by processing the Separation Personnel Action which contains information reflected in the past in the P.35 form, and by transmitting that information to the UNJSPF through the interface system, the Administration foregoes the opportunity to legally avail itself of an action intended to assist in the settlement of indebtedness to the Organization, namely the withholding of the P.35. Specific performance: Under art. 10.5 of the Tribunal’s Statute, when rescission, while available, does not seem appropriate to place the Applicant in the position she or he would have been in had the breach not occurred, the Tribunal may order specific performance, such as to order UNOPS to transmit the separation notification to the UNJSPF.