����AV

The Tribunal found that the applications were receivable since the contested decisions produced direct legal consequences adversely affecting the Applicants’ terms and conditions of appointment. The Tribunal further found that the chosen period of retroactive application of one year was not only unlawful because it was based on a misconstruction and misapplication of staff rule 3.16 but it was manifestly unreasonable, irrational, and above all unjustifiably discriminatory. It did not amount to a proper exercise of administrative discretion and breached the fundamental principle of equal pay for equal work. The Tribunal ordered that the contested decision be rescinded in respect of each Applicant and that the Applicants be considered in accordance with the Guidelines, without regard to the retroactive period of one year, with any appropriate adjustments to salary and applicable benefits and entitlements, plus interest at the US Prime Rate from the date that the sum of money would have been properly due, but for the one year retroactive application of the Guidelines, to the date of payment. Receivability: The Tribunal finds that the decision to limit the period of retroactivity to one year under the Guidelines had a direct impact on the Applicants’ interests and contractual right to equal pay for equal work. It also has a continuing negative impact on the determination of the Applicants’ steps in grade resulting in loss of remuneration. The contested decision therefore produced direct legal consequences adversely affecting the Applicants’ terms and conditions of appointment. The applications are receivable. Unlawful reliance on staff rule 3.16 and breach of the principle of equal pay for equal work: The Respondent conceded that reliance on staff rule 3.16 was an error. No evidence, regulation, rule, administrative issuance or authority was presented in support of the inclusion of a one-year period of retroactive application of the Guidelines. The principle of equal pay for equal work applies in the context of step increments within grade. As the Appeals Tribunal held in Tabari 2010-UNAT-030, “pay includes net base pay and all admissible allowances”. The decision to apply a one-year retroactive period was based on an unlawful application of staff rule 3.16 and created an unlawful distinction between staff members within the same category. The unlawful inclusion of a one-year cut-off date further resulted in an arbitrary distinction within the same category of staff members, all of whom passed the 2006 Competitive Examination for Spanish Translators and were placed on the same roster in 2007. The only difference between those staff members who benefitted from the adjustment of their step in accordance with the Guidelines and the Applicants was the date of receipt of an offer of appointment. Abuse of discretion: Once the Administration decides to exercise its discretion, it has an obligation to do so in a proper manner. The Administration failed to take into account that by limiting the period of retroactive application to one year based on staff rule 3.16, they were fettering their discretion to find a lawful means of meeting the policy objectives of recruiting and retaining language staff. No explanation was offered concerning the decision to limit the application of the guidelines only to those who were recruited in the year preceding the commencement of the guidelines, in view of the retention of staff being an important policy consideration. The action of the Administration fell short of being rationally connected to one of the principal objectives pursued, namely to retain staff and to review steps in line with the staff member’s professional experience and the implementation of the Guidelines had the effect of achieving an irrational and absurd result. Further, the chosen cut-off date has resulted in an arbitrary differentiation between staff who should have been treated equally. Finally no satisfactory explanation was provided to the Tribunal in relation to opting for a one year period of retroactivity, other than on a mistaken application of staff rule 3.16, or why the initially suggested period of two years of retroactivity was not adopted. If the length of the period of retroactive application was linked to budgetary considerations, it was unsupported by evidence adduced in the course of proceedings. The Administration cannot have it both ways, either the choice of a one-year retroactive application was based on staff rule 3.16 in which event it was unlawful, or it was based solely on financial considerations in which case it would be a breach of the principle of equal pay for equal work.