UNDT/2011/169, Klein
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.
This Judgment concerns relief to be ordered based on the findings on liability in Klein UNDT/2010/207, in which the UNDT found that the release to Member States of a summary of a flawed investigation report regarding the Applicant was in breach of his terms of appointment.
Rescission, specific performance, relief: The remedy of rescission of an administrative decision generally entails the undoing of the decision. However, in some situations rescission as a remedy may be unavailable. Further, in some instances, the Tribunal may find that, although rescission is available, other types of relief, such as specific performance or compensation, may be more appropriate. While the power to rescind relates to “the contested administrative decision”, the power relating to specific performance is put in general terms as various types of specific performance may be ordered depending on the circumstances of each case.Release of investigation reports: The Organization has the obligation to reasonably exercise the discretion to withhold or modify investigation reports requested by the Member States. The Organization is required to only produce, maintain and disseminate investigation reports that have been created in accordance with the requirements of fairness and due process. Inherent in this obligation is a corollary obligation not to produce, maintain or disseminate improperly created material.Determination of appropriate remedy: The Tribunal is vested with the statutory power to determine, in the circumstances of each case, the remedy it deems appropriate to rectify the wrong suffered by the staff member whose rights have been breached.Non-pecuniary harm, moral damages: In assessing the quantum of compensation the Tribunal may consider, among other things, non-pecuniary harm, including emotional distress and harm to reputation (which is distinct from direct economic loss). Non-pecuniary harm is sometimes referred to as “moral damage” or “moral damages”, particularly in jurisdictions with civil law tradition. Generally, the burden is on the injured party to substantiate her or his claims for such damages. The amount of compensation depends on the particular circumstances of each case and should be proportionate to the established harm.