CYIL vol. 14 (2023)

CYIL 14 (2023) LANDMARK JUDGMENT 4457 OF THE ADMINISTRATIVE TRIBUNAL … Thus, the ratione materiae competence of the Board lies in appeals against administrative decisions or disciplinary measure. The administrative decision may be express or implied (lack of reply of the Administration to a staff member appeal is deemed to reject his/her claim – cf. paragraph 10 of the Board’s Statutes providing for the obligation of the Organization to communicate the ruling of the Director-General on the request for administrative review to the staff member concerned by the Director of Bureau of Human Resources Management within 60 calendar days of the date of receipt of the request). However, in cases in which the decision appealed against is based on grounds of performance, the Board does not have jurisdiction to determine the substantive question of performance, but only the question as to the decision was affected by prejudice or other extraneous factors, or whether there was a procedural flaw. I wish to stress that some categories of disputes may not be brought directly to the Appeals Board but must be submitted before to specialized organs. For example, cases related to the interpretation and application of the United Nations Joint Staff Pension Fund’s Regulations must be firstly submitted to the UNESCO Staff Pension Committee, cases related to compensation in the event of death, injury or illness, attributable to the performance of official duties on behalf of the Organization are to be submitted firstly to the Advisory Board on Compensation Claims and cases related to the Rules of the UNESCO Medical Benefits Fund must be submitted firstly to the Board of Management of the Medical Benefits Fund. In conformity with paragraph 6 of the Board’s Statutes, the ratione personae competence of the Board relates to staff members only. The Statutes do not contain a definition of the staff member and thus must be read in conjunction with Rule 100.2 (a) of the Staff Regulations and Staff Rules. This Rule reads as follows: “ ‘Staff member’ means a person engaged by the Director-General other than a consultant, supernumerary, holder of a fee contract, a person engaged specifically for a conference or meeting, for auxiliary duties in the UNESCO Commissary, or for maintenance duties in offices away from Headquarters, or a casual labourer. “ ‘Members of the Secretariat’ means the Director-General and all staff members.” Although not expressly provided in the Staff Regulations and Staff Rules, the ratione personae competence of the Board extends to former staff members appealing the administrative decision taken during their employment with the Organization 32 (e.g. appeal against the non-renewal of contract) and persons on whom the staff member’s rights have devolved on his/her death. However, a former staff member in relation to whom the administrative decision was taken after he/she has left the Organization, “cannot use the internal means of redress to challenge a decision taken after she or he has left the Organization.” 33 . Thus, he/she may challenge this decision directly before the Administrative Tribunal. The exclusion of non-staff members from the competence ratione personae of the Board does not mean that they have no legal recourse against administrative decisions affecting

32 ILOAT Judgement 3505, Consideration 5 – available through the ILOAT website at https://www.ilo.org/ tribunal/lang--en/index.htm. Website visited on 17 July 2023. 33 ILOAT Judgment 4034, Consideration 4 – available through the ILOAT website at https://www.ilo.org/ tribunal/lang--en/index.htm. Website visited on 17 July 2023.

89