2022-UNAT-1265, Faraj El-Awar
The UNDT found the non-renewal decision unlawful because the Secretary-General did not show that it was motivated by a lack of funds. Although the UNDT committed several errors of law, its main finding is not put into doubt by the Secretary-General’s appeal. Therefore, in this respect, the Secretary-General’s appeal cannot succeed. UNDT's finding that UN-Habitat silently accepted Mr. El-Awar's condition of reassignment is erroneous. A reassignment is an administrative decision, a unilateral act imposed on the staff member by the Administration. It is not a contract which can be bargained or (implicitly) altered by the staff member. Consequently, when receiving an administrative decision, a staff member must decide whether he/she will accept this decision or whether it shall be challenged by a request for management evaluation and later by an application to the Dispute Tribunal. However, any comments the staff member should make with reference to an administrative decision cannot change the nature and content of this decision. The documentary evidence shows that Mr. El-Awar’s appointment was financed by a specific grant called Urban Basic Services Programme Development. UNAT accepted the Secretary-General’s contention that positions are financed from specific programmes or projects and that UN-Habitat was not allowed, under the Financial Regulations and Rules, to divert the moneys contributed for a specific project to fund Mr. El-Awar’s salary on a different project. However, UNAT held that the UNDT's finding that USD50,294.71 was available, which was sufficient to extend Mr. El-Awar's appointment for some months, was not sufficiently challenged by the Secretary-General. With regard to in-lieu compensation, Mr. El-Awar complains that the UNDT should also have taken into account the nature of the irregularity of the administrative decision and reviewed the evidence of prejudice, bias or improper motive. UNAT did not agree. UNAT held that the nature and degree of the irregularities committed by the Administration are of no legal relevance for the pecuniary value of the ordered rescission or specific performance. On the contrary, as the UNDT may not award punitive damages according to Article 10(7) of the UNDT Statute, UNAT found the UNDT is not allowed to consider these factors when deciding on the amount of in-lieu compensation. Given the seniority and type of Mr. El-Awar’s appointment, and his chance of renewal, the amount of in-lieu compensation of three months set by the UNDT is free of error. Particularly considering the evidence presented by the Secretary-General with regard to the financial situation of UN-Habitat, it is unlikely to assume that Mr. El-Awar’s appointment could have been renewed for more than three months. Consequently, Mr. El-Awar’s appeal fails. Concerning compensation for pecuniary harm, the UNDT granted compensation “for his income loss in the amount of 3 months of net-base salary”. UNAT found that the UNDT’s order of compensation is erroneous as it does not take into account that Article 10(5)(b) of the UNDT Statute, different from Article 10(5)(a) UNDT Statute, requires evidence for harm. Under the constant jurisprudence of the Appeals Tribunal, a staff member must show that he or she suffered harm, and that this harm was directly caused by the administrative decision in question. In the case of a rescinded non-renewal decision this means, firstly, that the staff member must show that he or she was either unemployed or employed on a lower salary after the non-renewal decision and, secondly, that this unemployment or disadvantageous employment occurred despite reasonable efforts of the staff member to find another position. UNAT held that these conditions are not met in the present case. UNAT noted that both in his 19 November 2018 application and his 19 March 2021 closing submissions, Mr. El-Awar requested compensation only as an alternative for rescission, hence under Article 10(5)(a) of the UNDT Statute. At no point in these documents does he specify what kind of pecuniary harm he suffered after and due to the non-renewal decision; he does not submit that he was unemployed or only employed on a lower salary after the non-renewal decision despite reasonable efforts to find a new employment, nor does he present any evidence for it. UNAT held that Mr. El-Awar’s submission on appeal, that he lacked the opportunity to present evidence of economic loss at the UNDT level, has no merit. As Article 10(5)(b) of the UNDT Statute clearly requires “harm, supported by evidence”, it is the onus of every staff member to describe, in his or her application to the UNDT, the harm suffered by the administrative decision in question, and to present or offer evidence for it. Mr. El-Awar’s request that the Appeals Tribunal receive the additional evidence in annexes of his appeal “which shows that he has been unsuccessful at securing a position commensurate with his expertise and experience, despite consistent efforts since he separated from Habitat, and has earned approximately USD 60,000 through consulting work over the corresponding period” under Article 2(5) of the UNAT Statute is rejected. To allow Mr. El-Awar’s additional evidence is not in the interest of justice and the efficient and expeditious resolution of the proceedings as it has no legal relevance. All communication contained in annex 16 of Mr. El-Awar’s appeal dates from after the UNDT issued its judgment on 26 May 2021, and long after the non-renewal decision of 31 August 2018. Compensation for unemployment after an unlawful and rescinded non-renewal decision cannot be granted at infinitum. It will usually not extend the time period for in-lieu compensation, in the present case three months. Mr. El-Awar had the onus of showing that he was unemployed after 30 September 2018 despite reasonable efforts at that time to find another position, which he did not do.
UNDT/2021/060
This Tribunal has consistently held that “compensation must be set by the UNDT following a principled approach and on a case by case basis” and that the Appeals Tribunal will not interfere lightly as “[t]he Dispute Tribunal is in the best position to decide on the level of compensation given its appreciation of the case”. In-lieu compensation under Article 10(5)(a) of the UNDT Statute shall be an economic equivalent for the loss of rescission or specific performance the Tribunal has ordered in favor of the staff member. When the Secretary-General chooses not to accept this order, he must pay compensation as an alternative to replace (in-lieu) such rescission or specific performance. Hence, the most important factor to consider in this context is the pecuniary value of such rescission or specific performance for the staff member in question. In case of rescission of a non-renewal decision, it is reasonable for the UNDT to focus on the seniority and type of appointment held by the staff member, and particularly the chance of renewal of this appointment. Article 10(5)(b) of the UNDT Statute requires evidence of harm. A staff member must show that he or she suffered harm, and that this harm was directly caused by the administration decision in question. In the case of a rescinded non-renewal decision this means that the staff member must show that he or she was either unemployed or employed on a lower salary after the non-renewal decision, and that this unemployment or disadvantageous employment occurred despite reasonable efforts of the staff member to find another position.
The Secretary-General’s appeal is granted in part, and Mr. El-Awar’s appeal is dismissed. The UNDT Judgment No. UNDT/2021/062 is modified, and its order on compensation for pecuniary damage is vacated.