UNDT/2011/094

UNDT/2011/094, Sprauten

UNAT Held or UNDT Pronouncements

Outcome: Applicant awarded: (1) six months’ net base salary in effect at the time of the selection process mentioned herein, as non-pecuniary compensation for the substantial and unwarranted irregularities in the selection process; and (2) three months’ net base pay in effect at the time of the selection process for the stress experienced by the Applicant that was causally related to the Applicant’s loss of chance/loss of opportunity.

Decision Contested or Judgment Appealed

The case concerns the compensation to be awarded to the Applicant, after the Tribunal in Sprauten found that a selection process in which the Applicant participated was flawed, since the applicable UNOPS rules for conducting the relevant interview had not been followed.

Legal Principle(s)

Definition of “loss of chance”. Under the relevant case-law, the two different terms, “the loss of chance” and “loss of opportunity”, have been used for the same theoretical concept. “The loss of chance” is a compensation doctrine only, intended to measure damages for procedural violations. The doctrine applies in non-promotion and non-selection cases where there is more than one candidate and where it is not possible to say with certainty that any one of the candidates would have been appointed to the post. A loss of chance case is distinguished from a case where a clear determination can be made: loss of chance compensation is the Tribunal’s best estimate of the value of the “loss of chance” (a general measure), while compensation for wrongful denial of a post is exact and is based on the contract benefits and emoluments. Being compensation of a non-economic nature for violation of procedural rights, the loss of chance doctrine is not concerned with “foregone income”, since there is no foregone income to calculate. Calculating non-economic damages for procedural violations. Two possible methods exist for calculating non-economic damages for procedural violations: the Hastings approach of examining the salary and benefits, or the Lutta approach of determining compensation according to the facts of each case.

Outcome

Judgment entered for Applicant in full or in part

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The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.

Full Judgment

Applicants/ Appellants

Sprauten

Entity

UNOPS

Case Number(s)

UNDT/NY/2009/085/JAB

Tribunal

UNDT

Registry Location :

New York