UNITED NATIONS JOINT STAFF PENSION BOARD Standing Committee

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1 Distr. RESTRICTED 193 rd meeting JSPB/SC/193/R.5 27 April 2012 ORIGINAL: ENGLISH UNITED NATIONS JOINT STAFF PENSION BOARD Standing Committee Report of the one hundred ninety-third meeting of the Standing Committee held on 13 July 2011 during the fifty-eighth session of the Pension Board at the United Nations Office at Geneva, Switzerland Note by the Secretary 1. The one hundred and ninety-third meeting of the Standing Committee was held at the United Nations Office at Geneva, Switzerland on Wednesday, 13 July 2011 during the fiftyeighth session of the United Nations Joint Staff Pension Board. 2. The Standing Committee adopted the agenda which is reproduced in Annex I (JSPB/SC/193/R.1). A list of those who attended the meeting is attached as Annex II. The officers elected by the Committee were Mr. Pierre-Justin Kouka (Chairperson), Ms. Odile Dorer (1st Vice-Chairperson) and Ms. Carol Cliff (2nd Vice-Chairperson). 3. The Committee considered three review and appeal cases set out below. JSPC/SC/193/R.2 United Nations Appeals Tribunal Judgment, 2010 UNAT-003, Frechon, remanded to the Standing Committee by the Tribunal 4. The Appellant, a right-handed translator/interpreter, born on 21 April 1960, joined the United Nations Department of Peacekeeping Operations (DPKO) as an interpreter on 9 June 1998, and became a UNJSPF participant on 9 December 1998 under pension number A/ Following a separation from service with DPKO on 26 February 1999, the Appellant re-entered the Fund upon joining the International Criminal Tribunal for Rwanda (ICTR) as a translator on 24 June The Appellant separated from the service of ICTR on 31 July 2007 upon the expiration of her contract. 5. The United Nations Staff Pension Committee (UNSPC) considered the Appellant s request made under the Fund s Administrative Rule H.4 for a UNJSPF disability benefit at its 305th meeting held on 28 May 2008, and decided that she was not incapacitated for further

2 Page 2 service within the meaning of article 33 of the UNJSPF Regulations. At the request of the Appellant in accordance with UNJSPF Administrative Rule K.5, the UNSPC reviewed the case again at its 306th meeting in November 2008 and concluded that there was no new medical or other evidence warranting a reversal of its previous decision. 6. The Appellant appealed the UNSPC s decision to the Standing Committee, which upheld the decision of the UNSPC at its 191st meeting in July The Appellant then appealed that decision to the United Nations Appeals Tribunal (UNAT). In its judgment 2010 UNAT-003 dated 30 March 2010, the Tribunal found that the Secretary/CEO s letter informing the Appellant of the Standing Committee s decision to reject her request for a UNJSPF disability benefit explained the decision in general terms and did not provide the Committee s reasons; therefore, it was not clear to the Tribunal how specific the Standing Committee s investigation of the Appellant s claimed impairment had been. The Tribunal, therefore, rescinded the decision of the Standing Committee and remanded the case to the Committee on the grounds that it, the Tribunal, was not in a position to rule on the facts of the case since it was not clear whether it is actually possible for [the Appellant] to perform the duties of a translator in a member organization, or at least duties commensurate with her education and professional qualifications and which are reasonably compatible with her impairment, taking into account the duties actually required of a translator and the technology available to compensate for her inability to use a keyboard. 7. The Tribunal directed that the Standing Committee reconsider the Appellant s request after undertaking the required inquiries from translation services of member organizations, for instance, as to what technology is available that might compensate effectively for the appellant s impairment and to what extent technology would compensate for her impairment in the light of the duties actually required of a translator. At its 192 nd meeting in July 2010, the Committee requested the secretariat to undertake the necessary fact-finding as directed by the Tribunal and report the outcome at its 193 rd meeting in July Following the decision of the Standing Committee for the Fund secretariat to undertake the necessary fact-finding, the Secretary/CEO sent a memorandum to the Pension Board s Medical Consultant seeking his advice as to whether there was sufficient information on file or if a further independent assessment would be required to reach a conclusion on the issues highlighted by the Tribunal. The Medical Consultant concluded that the documents on file clearly established the following at the time of Appellant s separation from service on 31 July 2007: She had a medical condition, recognized to be partly service incurred; She was unable to use a keyboard; ICTR did not require her to use a keyboard, and offered workplace accommodations to allow her to continue working; She was, however, unable to return to Arusha, because the ongoing treatment she required was unavailable in Arusha. 9. Additionally, following consultation with the Medical Consultant, the Fund secretariat requested the Appellant to undertake an occupational assessment to help

3 Page 3 determine the suitability of the workplace accommodations that had been offered by the Appellant s former employing organization and her ability to use the aids available to substitute for use of a keyboard. After the Appellant s lawyer set certain conditions and requested assurances that the outcome of the occupational assessment would not overturn previous medical findings, the occupational assessment did not proceed as the secretariat could not agree to the conditions, nor give the assurances since the outcome of the occupational assessment could not be pre-determined. 10. Therefore, at its 193 rd meeting, the Standing Committee reviewed the case based on the totality of the facts as presented and concluded that at the time of her separation from service the Appellant was indeed incapacitated for further service, and awarded her a disability benefit with effect from 1 August 2007, the day following her separation from service. 1 JSPC/SC/193/R.3 Request for payment of residual settlement under Article 38 of the Regulations: Review of decision of the Secretary/CEO (Administrative Rule K.5) 11. This case concerns a request for review by the Applicant against the decision of the Secretary/CEO to pay a divorced surviving spouse s benefit to Mr. D, the former spouse of the Applicant s late sister, Ms. R, who was a UNJSPF participant (A/250432) and died in the Haiti earthquake on 12 January The Applicant claims that a residual settlement should have been paid to her as the designated beneficiary of her sister s UNJSPF pension entitlements. The request was made following the death of Ms. R in the Haiti earthquake on 12 January Ms. R (born 25 December 1965 and a national of Guatemala) had two participations in the Fund: from 10 January 1991 (S/232566) until 9 January 1992, and from 9 June 1995 until her death in January 2010 (A/250432). At the time of her death, Ms. R was serving in the United Nations Stabilization Mission in Haiti (MINUSTAH). 13. The Fund had recorded a change in status for Ms. R from single to married in October 1999 following receipt of a Personal Action form dated 12 July According to documents received by the Fund after the death of Ms. R, she had married Mr. D on 3 December 1993 and they had divorced on 29 December At the time of the divorce, Ms. R... and Mr. D had been married for a period of 12 years and she had been a participant in the Fund for a period of 10 years and six months during the period of the marriage. After her death, the Fund received a corrected separation Personnel Action from 1 The Standing Committee was informed of the outcome of Ms. Frechon s appeal against the Secretary-General of the United Nations announced by the UNAT on 8 July 2011, before the Standing Committee reconsidered the appeal in the case against the Fund. UNAT upheld the findings of the United Nations Dispute Tribunal that Ms. Frechon was disabled and requested the Secretary-General to initiate a request to the Fund for a disability benefit for Ms. Frechon.

4 Page 4 the United Nations reflecting Ms. R s marital status at the date of her separation from service, being the date of her death, and the fact that she was divorced at the time. 14. Following the death of Ms. R, the Fund received a communication from the Applicant asking whether she or her sister s former spouse was the beneficiary of her sister s UNJSPF pension. After receiving all the relevant documents, the Fund determined that Mr. D.., the former spouse, was eligible to receive a divorced surviving spouse s benefit under Article 35 bis of the Fund s Regulations. Since a survivor s benefit was in payment, there was no basis for payment of a residual settlement under Article 38 of the Regulations to the Applicant. The Applicant subsequently challenged the Fund s decision to pay the benefit. 15. Following a review of the case, the Standing Committee found that the conditions for payment of a divorced surviving spouse s benefit to Mr. D had been met and upheld the decision of the Secretary/CEO to pay the benefit to him. While the Applicant had put forward the personal and moral considerations regarding Ms. R s wishes and the circumstances of her marriage as viewed by the Applicant, they were irrelevant as payment of benefits by the Fund is governed strictly by the Fund s Regulations, Administrative Rules and Pension Adjustment System. JSPB/SC/193/R.4 Request for widower s benefit under Article 35 of the Regulations: Review of the decision of the Secretary/CEO (Administrative Rule K.5) 16. This case concerned a request for review of the decision of the Secretary/CEO to deny the Applicant a widower s benefit under Article 35 of the UNJSPF Regulations following the death in the Haiti earthquake on 12 January 2010 of the Applicant s partner, Mr. G., an Italian national (born 5 September 1967) (A/267869). 17. Mr. G joined the United Nations on 1 January 1998 and became a participant in the Fund on 1 July He served in various positions under different contracts; at the time of his death he was serving with the United Nations Stabilization Mission in Haiti (MINUSTAH) in Port-au-Prince. In accordance with the Personnel Action form issued on 13 July 2008, Mr. G s marital status was recorded as single in the Fund s records at the time of his death and his designated beneficiaries were a sister and the Applicant in a Pens.A/2 form signed on 22 December The Applicant (born 12 December 1963)(A/174981), is also a participant in the Fund. He entered the Fund on 4 June 1994 and his country of nationality was reported as Australia; he stated in his submission that he is also a national of Colombia. His marital status was recorded as Married at the time that he entered the Fund, and was subsequently changed to Divorced as of 13 November At the time of Mr. G s death on 12 January 2010, the Applicant s marital status was recorded as divorced in the Fund s records. 19. Following Mr. G s death, the Fund received notice informally by dated 2 March 2010 from the United Nations Department of Field Support, Field Personnel Division

5 Page 5 (DFS/FPD) that Mr. G. had been in a domestic partnership relationship and that recognition of the relationship will impact benefits and entitlements, including pension benefits. The Fund subsequently received documentation that Mr. G had entered into a Pacte Civil de Solidarité (PACS) with the Applicant on 30 August 2006 in Annemasse, France. Since the Fund had determined previously that PACS is not equal to legal marriage under French law, it was deemed not to be an acceptable basis for payment of a survivor s benefit under Articles 34/35 of the Regulations. Therefore, a decision was taken upon initial review that the Applicant was not eligible to receive a widower s benefit from the Fund. 20. In the meantime, the Fund received revised Personnel Actions issued on 31 March 2010 by the United Nations showing Mr. G s status as married at the time of his death and a corresponding personnel Action from UNHCR dated 23 February 2010 changing the Applicant s marital status. It was clear from the documents provided that the United Nations, Office of Human Resources Management (OHRM), had recognized the PACS and changed Mr. G s marital status in its records after his death. This change resulted in the Applicant being recognized for purposes of spousal benefits under the United Nations Staff Rules and Regulations. 21. The Applicant was informed of the Fund s decision not to recognize him for purposes of payment of UNJSPF spousal benefits and he subsequently met with the Fund to discuss his case. After the meeting between the Fund and the Applicant, a letter was sent to the Permanent Mission of Italy as the country of nationality of Mr. G since his UNJSPF benefits were at issue, to determine whether the PACS would be recognized under Italian law. The Permanent Mission of Italy responded that the Fund should act in accordance with its Regulations and Rules. Following that response, the Secretary/CEO confirmed that the Fund could not recognize the Applicant for purposes of UNJSPF survivor s benefit having taken into account the following facts as set out in a letter dated 28 July 2010: a) At the time of his death, the marital status of Mr. G was recorded single in the Fund s file, and the change in this status to married and related had been undertaken by the United Nations after his death, which was contrary to Administrative Rule B.3 of the Fund; b) Similarly, at the time of Mr. G s death, the Appellant s status in the Fund s file was divorced, but his employing organization, UNHCR, had issued a Personnel Action Form dated 23 February 2010 also after Mr. G s death with report date of 1 January 2010, recognizing Mr. G. as a dependent of the Applicant; and c) Mr. G had been a national of Italy; in accordance with the Fund s practice to determine the personal status of a participant in accordance with the individual s national law, similar to the practice of the United Nations under ST/AI/2004/13, the Fund had enquired from the Permanent Mission of Italy to the United Nations in New York whether it would recognize the union, but the Permanent Mission had responded that the Fund should act in accordance with its Regulations. 22. The Applicant subsequently submitted a request for review of the Secretary/CEO s decision presented by his lawyers. In his submission, the Applicant relied on the fact that

6 Page 6 three employing organizations - UN Secretariat, UNHCR and UNICEF recognized his relationship with the late Mr. G and he was surprised that the UNJSPF has refused to do so. The Applicant also raised issues concerning the Board s guidance in 2006/2007 at its fifty-third session in July 2006 followed by the reaffirmation of its decision at its fifty-fourth session in The issue of the Board s guidance at its 2006 and 2007 sessions in regard to Articles 34 and 35 was addressed in a separate paper by the Secretary/CEO entitled Clarification of the Board's guidance (2007) concerning verification of marital status of participants under articles 34/35 of the UNJSPF Regulations in the context of nontraditional unions (Document JSPB/58/R.41). 23. The Fund secretariat noted that the fact that three employing organizations recognized the relationship of the late Mr. G and the Applicant for purposes of employment benefits could not be a basis for the Fund to recognize the relationship for purposes of UNJSPF pension benefits as the UNJSPF is an inter-agency entity and must act on the basis of its own Regulations, as approved by the UN General Assembly, following consultation with the Pension Board. The independence of the Fund in determining eligibility for benefits based on its self-contained Regulations and Rules is well established through judgments of the United Nations Administrative Tribunal and has been confirmed by the United Nations Office of Legal Affairs in a number of cases that involve recognition of spouses and the impact of such recognition on both employment benefits and pension entitlements. Furthermore, under Article 7 of the Fund s Regulations, only the Chief Executive Officer certifies for payment all benefits properly payable under the Regulations. Employing organizations have no authority to mandate the Chief Executive Officer in that regard, therefore, the actions of UN Administration, UNICEF and UNHCR cannot be the final determining factor with respect to eligibility for UNJSPF pension benefits. 24. The Fund secretariat also noted that under Administrative Rule B.1, employing organizations are under an obligation to notify the secretary of the Fund of information in respect of participants in the Fund, and of any changes. While the PACS between the late Mr. G and the Applicant was entered into on 30 August 2006, the Applicant stated in his submission that he and Mr. G intended to register their union with their respective employing organizations but did not get the chance, and he only began the process after the death of Mr. G, which was more than three years after the PACS had been entered into. 25. The Standing Committee determined that the circumstances presented in this case were unusual. However, there was no consensus on whether or not to uphold the decision of the Secretary/CEO and the matter was decided by a vote of all members present: four members voted to uphold the decision of the Secretary/CEO; ten members voted to allow the appeal; and one member abstained. Based on the majority decision, the Committee decided on an exceptional basis to award the widower s benefit 2 The Board s guidance issued at its fifty-third Session in 2006 and affirmed at its fifty-fourth Session in 2007 was as follows: the UNJSPF should determine entitlements to pension benefits, in particular under articles 34 and 35 of the UNJSPF Regulations, in accordance with the personal status of the participant as recognized and reported to the Fund by the participant s employing organization, on the understanding that the final verification that the personal status has remained the same will be done by the Fund at the time of granting such pension benefits.

7 Page 7 under Article 35 of the Fund s Regulations, but noted that the change in the marital status of Mr. G had been undertaken and reported to the Pension Fund in March 2010, though his death had taken place in January The Committee determined, therefore, that payment of the benefit should be at no cost to the Fund thereby necessitating payment of additional actuarial costs by the United Nations, as Mr. G s former employing organization, in order to correct its administrative error.

8 Annex I 193rd meeting Agenda item 3 Distr. RESTRICTED JSPB/SC/193/R.1 28 June 2011 ORIGINAL: ENGLISH UNITED NATIONS JOINT STAFF PENSION BOARD Standing Committee One hundred and ninety-third meeting of the Standing Committee to be held during the fifty-eighth session of the Pension Board at the Unite Nations Offices at Geneva (UNOG), July 2011 Provisional Agenda 1. Opening of the one hundred and ninety-third meeting 2. Election of officers 3. Adoption of the agenda Document JSPB/SC/193/R.1 4. United Nations Appeals Tribunal Judgment, 2010 UNAT-003, Frechon, remanded to the Standing Committee by the Tribunal Document JSPB/SC/193/R.2 - Note by the Secretary/CEO 5. Request for payment of residual settlement under Article 38 of the Regulations: Review of decision of the Secretary/CEO (Administrative Rule K.5) Document JSPB/SC/193/R.3 - Note by the Secretary/CEO 6. Request for widower s benefit under Article 35 of the Regulations: Review of the decision of the Secretary/CEO (Administrative Rule K.5) Document JSPB/SC/193/R.4 - Note by the Secretary/CEO 7. Other business 8. Closure of the one hundred and ninety-third meeting

9 Fifty-eighth session Agenda item 11(c) Annex II Distr. Restricted JSPB/58/R June 2011 ORIGINAL: ENGLISH UNITED NATIONS JOINT STAFF PENSION BOARD Election of members of Standing Committee (Rules of Procedure, Rule B.1) Note by the Secretary/CEO The following nominations have been received for the election of the members of the Standing Committee, in accordance with Rule B.1 and Appendix 2 of the Rules of Procedure of the UNJSPF. GROUP NUMBER MEMBER ORGANIZATIONS I UN H.E. Mr. P.R. Owade (M) Ms. V. M. Gonzalez Posse (M) Mr. A. Kovalenko (A) Mr. T. Repasch (A) Mr. J. Yamada (A) REGULAR BOARD SESSION 2011 GOVERNING BODY EXECUTIVE HEAD PARTICIPANTS Ms. C. Pollard (M) Mr. J. Pozenel (M) Ms. S. Van Buerle (A) Mr. A. Roy (A) Mr. A.O. Adeniyi (M) Mr. C. Santos Tejada (M) Mr. A.K. Lakhanpal (A) II FAO Mr. C. Bentancourt (A) Ms. C. Nikoi (M) Ms. M. Saif (A) III WHO UNESCO Dr. A.J. Mohamed (M) Mrs. S. Frahler (A) Mr. M. Ghelaw (M) Mr. D. Walter (M) ILO Mr. D. Willers (M) IV IAEA UNIDO, WIPO ICAO, ITU V WMO, IMO, IFAD Mr. A. Zimmermann (M) (IFAD) VI Ms. S. Antonopoulou (M) (UNIDO) ICC ICGEB WTO (Tour) ICCROM ISA ITLOS IPU EPPO IOM STL Totals Mr. D. Neal (M) Mr. J. Sanou (M) (ITU) NOTE: The representation of FAFICS will be as follows: Mr. A. Castellanos del Corral (Rep.) Mr. S. Janakiram (Rep.) Ms. M. Johnson (Alt.Rep.) Mr. T. Teshome (Alt.Rep.) LEGEND: M: Member A: Alternate Rep: Representative Alt.Rep.: Alternate Representative