In re DUBERG case

Judgment No. 17

See also In re DUBERG 2

THE ADMINISTRATIVE TRIBUNAL,

Having had referred to it a complaint submitted against the United Nations Educational, Scientific and Cultural Organisation on 5 February 1955 by Mr. Peter Duberg, an official of that Organisation, asking that the Tribunal be pleased to rescind the decision taken by the Director-General on 13 August 1954 and to enjoin the Director-General to renew the contract of the complainant and to pay him the sum of one franc in respect of damages and legal costs;

Considering the memorandum of reply to the said complaint submitted by the defendant Organisation on 19 March 1955;

Having had referred to it a statement submitted in his own name on 20 April 1955 by M. Pierre Henquet, Chairman of the Staff Association of UNESCO;

Considering the pleadings exchanged by the representatives of the parties during the hearing and in particular the statement by the complainant that his alternative claim for damages would amount to the sum of US$67,300;

Considering that the complaint is receivable in form;

Considering that the facts of the case are the following:

1) The complainant took up his duties with the defendant Organisation on 2 June 1949;

2) At the time when the decision complained of was taken, the complainant was the holder of a fixed-term contract of one year’s duration expiring on 31 December 1954;

3) In February 1953 the complainant received from the representative of the United States to the defendant Organisation a questionnaire to be completed and returned in application of “Executive Order No. 10,422 of the President of the United States dated 9 January 1953 prescribing procedures for making available to the Secretary-General of the United Nations certain information concerning United States citizens employed or being considered for employment on the Secretariat of the United Nations”, whose provisions apply to the defendant Organisation by virtue of Part III of the Order in question; the complainant did not answer this questionnaire;

4) In February 1954, the complainant received an interrogatory from tho International Organisations Employees Loyalty Board of the United States Civil Service Commission set up by Executive Order No. 10,459 of 2 June 1953, amending Executive Order No. 10,422 of 9 January 1953, interrogatory to which the complainant also did not reply;

5) In June 1954, the complainant received an invitation, dated 18 June, to appear on 15 July before the Loyalty Board meeting at the United States Embassy in Paris;

6) By letter dated 13 July 1954, the complainant informed the Director-General of the reasons of conscience on which he based his refusal to appear;

7) By letter dated 13 August 1954, the Director-General informed the complainant that he would not offer him a new contract on the expiry of the contract at that time in force. This letter stated, inter alia:

“… In the light of what I believe to be your duty to the Organization, I have considered very carefully your reasons for not appearing before the International Employees Loyalty Board where you would have had an opportunity of dispelling suspicions and disproving allegations which may exist regarding you.

It is with a deep sense of my responsibilities that I have come to the conclusion that I cannot accept your conduct as being consistent with the high standards of integrity which are required of those employed by the Organization.

I have, therefore, to my regret, to inform you that 1 shall not offer you a further appointment when your present appointment expires …”;

8) By a letter dated 23 August 1954, the complainant requested the Director-General to reconsider his decision;

9) The Chief of the Bureau Of Personnel and Management informed the complainant in a letter dated 30 August 1954 of the Director-General’s refusal to do so;

10) By a letter of 10 September 1954, the Director-General received communication of the report of the Loyalty Board (advisory determination) in which it was stated that: “it has been determined on all the evidence, that there is a reasonable doubt as to the loyalty of Norwood Peter Duberg to the Government of the United States”and that “this determination, together with the reasons therefor, in as much detail as security considerations permit, are submitted for your use in exercising your rights and duties with respect to the integrity of the personnel employed by the United Nations Educational, Scientific and Cultural Organization”;

11) The complainant was himself informed of the conclusions of the Loyalty Board by letter of the Chairman of the Loyalty Board dated 10 September 1954 and was also informed of the fact that the report of the Loyalty Board had been transmitted to the Director-General of the defendant Organisation;

12) On 23 September 1954, the complainant submitted an appeal to the UNESCO Appeals Board asking that the above-mentioned decision should be rescinded;

13) On 2 November 1954, the Appeals Board, by a majority opinion, expressed the opinion that the decision should be rescinded;

14) By a letter dated 25 November 1954, the Director-General informed the Chairman of the Appeals Board that he could not act in accordance with this opinion;

15) Before the Appeals Board had taken its decision, the Director-General, on 28 September 1954, set up a Special Advisory Board consisting of members of the staff, whose task was to “examine the cases of certain staff members on the basis of certain information which has been brought to the knowledge of the Director-General, and in the light of the standards of employment and conduct prescribed by the Constitution and Staff Regulations”;

16) The complainant appeared and explained his position before this Special Advisory Board. However, in a letter to the Director-General dated 4 October 1954, he expressed certain reservations to the procedure followed and asked for any measures affecting him which might result from this procedure to be cancelled;

17) By a letter dated 11 October 1954, the Chief of the Bureau of Personnel and Management informed the complainant of the rejection of this request;

ON COMPETENCE

Considering that the character of a fixed-term appointment is in no way that of a probationary appointment, that is to say of a trial appointment;

That while it is the case that UNESCO Staff Rule 104.6 issued in application of the Staff Regulations stipulates that: “A fixed-term appointment shall expire, without notice or indemnity, upon completion of the fixed term …”, this text only deals with the duration of the appointment and in no way bars the Tribunal from being seized of a complaint requesting the examination of the validity of the positive or negative decision taken regarding the renewal of the said appointment;

That it is established in the case that the Director-General, by a general measure of which the whole staff was informed on 6 July 1954, “decided that all professional staff members whose contracts expire between now and 30 June 1955 (inclusive) and who have achieved the required standards of efficiency, competence and integrity and whose services are needed, will be offered one-year renewals of their appointments”;

That the complainant, having been made the object of an exception to this general measure, holds that the Director-General could not legitimately thus make an exception of him on the sole ground which he invoked against him as justification for the view that he did not possess the quality of integrity recognised in those of his colleagues whose contracts had been renewed, and in the absence of any contestation of his qualities of competence and efficiency;

That the complainant requests that this decision be rescinded and, alternatively, that an indemnity be granted;

Considering that the question is thus a dispute concerning the interpretation and application of the Staff Regulations and Rules of the defendant Organisation;

That by virtue of Article II, paragraph 1, of its Statute, the Tribunal is competent to hear the said dispute;

ON THE SUBSTANCE

A. Considering that the defendant Organisation holds that the renewal or the non-renewal of a fixed-term appointment depends entirely on the personal and sovereign discretion of the Director-General who is not even required to give his reason therefor;

Considering that if this were to be so, any unmotivated decision would not be subject to the general legal review which is vested in the Tribunal, and would be liable to become arbitrary;

Considering that, in fact, it may be conceived that this might exceptionally be the case when, for example, it is a matter of assessing the technical suitability of the person concerned for carrying out his duties;

Considering, however, that in this matter the question does not affect the issue inasmuch as the Director-General has not only given the reason for the decision taken by him but has also made it public in a communiqué issued to the press;

That this reason is based solely on the refusal of the complainant to co-operate in the measures of investigation provided in respect of certain its nationals by the Government of the State of which he is a citizen, and in particular n his refusal to appear before a commission invested by that Government with the power to investigate his loyalty to that State;

That the Director-General declares that he concludes from this that he can no longer retain his confidence in the complainant and offer him a new appointment, his attitude being incompatible with the high standards of integrity required of those who are employed by the Organisation and being, furthermore, capable of harming the interests of the Organisation;

Considering in relation hereto that it is necessary expressly to reject all uncertainty and confusio as to the meaning of the expression “loyalty towards a State”which is entirely different from the idea of “integrity” as embodied in the Staff Regulations and Rules; and that this is evident and requires no further proof;

B. Considering that if the Director-General is granted authority not to renew a fixed-term appointment and so to do without notice or indemnity, this is clearly subject to the implied condition that this authority must be exercised only for the good of the service and in the interest of the Organisation;

Considering that it is in the light of this principle that the facts in this case should be examined;

Considering that Article 1.4 of the Staff Regulations of the defendant Organisation, as it stood at the moment when the decision complained of was taken, was as follows:

“Members of the Secretariat shall conduct themselves at all times in a manner consonant with the good repute and high purposes of the Organization and their status as international civil servants. They shall not engage in any activity that is incompatible with the proper discharge of their duties. The y shall avoid any kind of public pronouncement, which would adversely reflect upon their status. While they are not expected to give up religious or political convictions or national sentiments, they shall at all times exercise the reserve and tact incumbent upon them by reason of their international responsibilities.”

Considering that, in thus clearly establishing the entire freedom of conscience recognised to international officials in respect of both their philosophical convictions and their political opinions, the Regulations impose on them the duty to abstain from all acts capable of being interpreted as associating them with propaganda or militant proselytism in any sense whatever;

That this abstention is rigorously imposed on them by the overriding interest of the international organisation to which they owe their loyalty and devotion;

C. Considering that, when consulted by the Staff association of the defendant Organisation on the obligation incumbent on members of the staff to reply to questionnaires issued by authorities of their respective countries, the Director-General declared that the answer must depend only on the conscience of the individual, except that he should not lie and should have regard to the consequences which the refusal to reply might have for him;

Considering, however, that in respect of the invitation to appear before the Loyalty Board, it is established that the complainant approached the Director-General only at a late date, so that the latter would not have been able to give him advice in sufficient time;

Considering that it is desirable to determine whether the attitude adopted by the complainant in this respect may be considered as justifying the loss of confidence alleged by the Director-General;

Author: international

Mentioned in these Entries

In re DUBERG 2.