UNAT Held or UNDT Pronouncements
The UNDT found that the implementation date of 1 December 2010 and the related cut-off date of 1 December 2009 for retroactive consideration, as stated in the Guidelines, were binding on the Administration. The UNDT found that the Applicant’s situation should have been reviewed accordingly. Given the administration’s failure to follow its own Guidelines, which thus renders the decision unlawful, the UNDT found it unnecessary to consider the question as to whether there has been a breach of the duty to ensure that the principle of equal pay for equal work was strictly followed. The contested decision was rescinded and the UNDT ordered the Respondent to consider, within 60 calendar days of the date of the Judgment, the Applicant in accordance with the new Guidelines, with any appropriate retroactive adjustments to salary and applicable benefits and entitlements. The UNDT found that the implementation date of 1 December 2010 and related cut-off date of 1 December 2009 for retroactive consideration, as stated in the Guidelines, must be considered binding on the Administration. The Applicant having been formally appointed on 9 December 2009, the Guidelines are consequently applicable to him and he is entitled to be considered in accordance with the Guidelines, with any appropriate retroactive adjustments to salary and applicable benefits and entitlements. It is therefore unnecessary to consider the question as to whether there has been a breach of the duty to ensure that the principle of equal pay for equal work was strictly followed.
Decision Contested or Judgment/Order Appealed
The Applicant, a translator in the Department of General Assembly and Conference Management, contested the decision by the Office of Human Resources Management in the Department of Management of the United Nations Secretariat, not to retroactively apply to him the new “Recruitment policy for entry level language staff. Grading Guidelines” (“Guidelines”). The Applicant alleged that he should have been covered by the Guidelines.
Legal Principle(s)
Retroactive application of guidelines: The Organization may develop procedures and practices and adopt guidelines regulating various aspects of human resource management, provided that they are consistent with properly promulgated issuances, are not manifestly unreasonable, do not require formal promulgation under the Organization’s existing rules and, above all, are not unlawful. Insofar as the exercise of a discretion is concerned, as long as it is not manifestly unreasonable or otherwise unlawful, it is within the Administration’s discretion to decide whether the Guidelines should apply retroactively and over which period of time. Whether the exercise of discretion by the administration in this case was unlawful has to be examined in two stages. First is the question whether the administration carried out its obligation to follow its own guidelines. If it did so, the second question is whether the guidelines are themselves unlawful.