UNDT/2012/018, McKay
Compensation under Appendix D as opposed to liability for a breach of terms of appointment/contractual obligations: Appendix D to the Staff Rules sets a regime of objective responsibility in the event of death, injury or illness attributable to the performance of official duties on behalf of the United Nations, by which the Organization is to afford compensation regardless of whether it bears any fault in the matter. Where the compensation claimed by a staff member is compensation that relates to a violation of one of the terms of the staff member’s employment or is contractual in nature, Appendix D, in particular its article 3 (Sole Compensation), does not apply to limit such compensation.Professional medical opinion: In the absence of an autopsy report revealing the exact cause and time of the decease, due weight must be given to the converging professional opinions of two qualified doctors having examined the decedent’s remains.Standard for reimbursement of costs related to service-incurred death: Article 10.1 of Appendix D is the main provision relevant to determine, concretely, which expenses are to be regarded, for the purpose of their reimbursement by the Organization, as sufficiently linked to the death of a staff member. It sets the standard by stipulating, inter alia, that those costs must be reasonable and directly related. Regarding the specific case of travel expenses to accompany the remains of a deceased staff member to the home country, as per section 3.2 of administrative instruction ST/AI/2000/14, the Organization covers the travel expenses of only one family member escorting the deceased staff member to his or her home country. This provision is part of the “existing United Nations policy provisions” which allow to draw the line between expenses for which it is reasonable for the Organization to pay and those for which it is not.
The Applicant’s husband, who was then a staff member of UNIFIL, died from a cardiac arrest in January 2007, while at his duty station but not in service. The family was granted compensation under art. 10 of Appendix D. The Applicant seeks compensation on the grounds that the Organization: (1) breached the duty of care owed to its staff by not affording her husband appropriate conditions of service, in particular, by not putting in place adequate procedures for medical emergencies; (2) violated the survivors’ due process rights, by mishandling the processing of the estate’s entitlements and initially refusing to share the inquiry report on the death of the staff member; (3) failed to reimburse certain costs claimed to be directly related to the staff member’s death. The Tribunal found: (1) no breach of the duty of care as the emergency procedures in place at the time in UNIFIL appeared to be adequate and, if some dysfunction happened, there was no causal link with the staff member’s death; (2) no violation of due process rights, as no inordinate delays or lack of reasonable diligence could be identified in the administrative procedures subsequent to the incident, nor in sharing the inquiry report; and (3) the costs claimed (travel costs of family members for trips to/from Lebanon and New York) were not reimbursable under article 10.1 of Appendix D.
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