This question has taken on particular importance since the Tribunal rendered its decision in Prescott, Decision No. 253 [2001]. In Prescott, the Applicant was awarded past pension benefits for a determined period of time “in the light of the unique circumstances of the case.”

In awarding Mr. Prescott past pension benefits, the Tribunal noted that his situation at the time was “not the result of a general policy of the Bank,” but rather a result of his managers’ abuse of discretion in not considering and determining his regularization despite the clear terms of Staff Rule 4.01, paragraph 7.02(b), and of an August 1991 directive from the President of the Bank.

It is important to note that the Tribunal emphasized in Prescott that it was “only because” he had satisfied in a timely manner the “indispensable jurisdictional requirements” imposed by the Tribunal’s Statute that the Tribunal had considered the claim. One such requirement is that an applicant must, absent exceptional circumstances, timely exhaust his or her internal remedies.

The Tribunal, in the jurisdictional phase of Prescott (Decision No. 234 [2000]), held that Mr. Prescott’s “conversion [to a Fixed-Term appointment] was … an event which should have brought to his attention the possibility that there could have been an earlier misclassification.” (See also Yang, Decision No. 233 [2000].) The Tribunal further held that as Mr. Prescott had requested administrative review within ninety days of his conversion, he had timely exhausted his internal remedies.

The jurisdictional holding in Prescott was a clear reflection of the Tribunal’s earlier judgment in Thomas, Decision No. 232 [2000], where the Tribunal set out for the first time the test for determining when the time period begins to run for the filing of claims for past pension benefits by former NRS.

In Thomas, the Tribunal held that such time period began to run “when the Applicant ought reasonably to have been aware that there could have been a misclassification, that this had adverse effects on her participation in the SRP and that she should challenge the Bank’s failure to assign her to the appropriate type of position where she would be entitled to so participate in the pension scheme.” This awareness, concluded the Tribunal, “must have been … at the latest” at the time of Ms. Thomas’ conversion from an NRS appointment to a Fixed-Term appointment. (See also Singh, Decision No. 240 [2001], in which the Tribunal reached the same conclusion and rejected an argument made by Mr. Singh to the effect that the proper time for filing a claim of misclassification is when a staff member leaves the Bank Group.)

It may be noted that in each of the cases mentioned above, the applicant was a former NRS who had been converted to a regular position. Such a circumstance is unlike the situation presented in Caryk, Decision No. 214 [1999], and Madhusudan, Decision No. 215 [1999], where the applicants were never converted. While the Tribunal in Caryk and Madhusudan rejected the Bank’s request to dismiss the applications on jurisdictional grounds, it did so on the basis that the applicants’ claims had been addressed on the merits by the Pension Benefits Administration Committee (PBAC), and that the applicants’ appeals to the Tribunal were thereafter filed within the appropriate time period.

In accordance with the above jurisprudence of the Tribunal, it is clear that with respect to former NRS who have been converted to a Fixed-Term or Open-Ended appointment, the time period for filing a claim of misclassification begins to run on the date of such conversion, failing exceptional circumstances.