UNDT ordered the Respondent to (i) remove adverse material from the Organization’s files, (ii) send to the Member States that received the summary a copy of the Judgment and explanatory statement, (iii) pay monetary compensation in the amount of USD60,000 for non-pecuniary harm, including emotional distress and damage caused to the Applicant’s reputation. The UNDT rejected the Applicant’s claims for direct economic loss.
The Tribunal rescinded the contested decision and set the alternative amount of compensation at USD8,000. The Tribunal further awarded USD6,000 to the Applicant for moral damage suffered. Rescission/Alternative compensation: Pursuant to article 10.5(a) of the Tribunal’s Statute, in a case concerning promotion, the Administration may choose either to implement the ruling annulling the contested decision or to pay the amount fixed as alternative compensation in lieu of rescission. In the first hypothesis, the selection procedure will be restarted and, if the Applicant applies and is eventually...
Receivability: Only the appeal of the compensation amount was receivable—the Respondent had already conceded to the selection processes being flawed, the Applicant’s return to her liened post was not an administrative decision in itself, and the Applicant had defined a fourth decision too vaguely to give it any meaning. Compliance with orders: Lacking a response from Counsel for the Applicant to a written order, the Tribunal determined that, due to his failure to comply with the order, by default the Tribunal would deem that the Applicant had agreed with the Respondent’s contentions regarding...
The Tribunal found that there was a failure of procedure and a violation of the Applicant’s rights during both selection exercises. In this respect, the Tribunal held that the decision not to select the Applicant for the New York post was unlawful as the selection process was tainted by prejudice, which resulted in his candidacy not being given full and fair consideration. With respect to the Vienna post, the Tribunal held that once the programme case officer decided to test and interview the Applicant, who was a roster candidate, afresh with new candidates, it was inherently unfair for the...
The Applicant’s criticism, that staff members with a vested interest in the process because they were unsuccessful in the promotion exercise procured the Staff Union resolution, is not a criticism that should be directed towards the Respondent’s managers, but is rather a matter for the Staff Union. Staff member’s right to a decision in a timely manner: The Respondent’s approach to resolving this matter indicated a lack of urgency and sensitivity towards the legitimate expectations and feelings of the Applicant. Outcome: The UNDT awarded compensation of USD10,000 for emotional distress and...
Applicant’s request for a swap of posts and for priority consideration: The Tribunal’s Statute does not authorize it to issue such orders to the Administration. Applicant’s request for an internal review of UNDSS: The Tribunal’s mandate is to enforce the individual rights of applicants; it does not behove the Tribunal to oblige the Administration to remedy problems it may identify in the functioning of the Organization. Applicant’s request for determination of individual responsibilities: Assuming the Applicant intended to rely on article 10.8 of the Tribunal’s Statute, such article allows the...
Non-promotion: As regards promotions and considering the discretionary nature of these decisions, the Tribunal’s role is only to review the legality of the procedure followed in sink with the procedural and legal framework of the 2009 UNHCR annual promotions session, its methodology and to examine whether an irregularity vitiated a significant chance for promotion. The Applicant was not promoted due to a shifting of his candidature from one group to another, based on criteria which were not stipulated in the rules and at a stage in the course of the process of examination, which was in breach...
The Tribunal held that the Administration did not have sufficient evidence of Mr. Koutang’s level of engagement in outside activities to justify a finding that he had engaged in an outside occupation or employment. Thus, there were no reasonable grounds to sustain a finding of conflict of interest. While Mr. Koutang had installed a private router in his office there was no breach of security and no willful misconduct. Mr. Koutang had no ulterior motive or malicious intent in installing the router. It was at most an error of judgment with no proven adverse effects on the Country Office. The...
The Tribunal held that the delay by the Respondent without reason was a ‘manifest abuse of the proceedings’ which entitled the Applicant to an award of costs. In light of said delays by the Respondent the Tribunal awarded the Applicant interest from the date of wrongful separation until the payment of compensation, and for the moral damages award, interest from the date of award by the JAB. The Tribunal held that as there is no practical difference between the terms ‘net’ and ‘net base’ pay, the Applicant is not entitled to the additional payments which amount to the ‘gross’ sum of his salary...
The practice of placing reliance upon recordings in initial fact finding exercises and interview notes of appointed investigators in an effort to establish gross misconduct warranting summary dismissal before the Tribunal is grossly inadequate and cannot establish the facts in issue. An investigator must be committed to ascertaining the facts of the case through relevant inquiry involving the questioning of witnesses, forensic evidence where necessary and identification and collection of relevant documentary evidence. The investigator’s findings should be based on substantiated facts and...
