UNDT/2013/053, Wasserstrom
The Tribunal found that the Applicant was not entitled to any compensation for loss of earning and benefits because the case corned the Ethics Office’s decision that the Applicant had not been retaliated against and not the circumstances regarding his separation from UNDP. As for non-pecuniary damages, the Tribunal found that it was difficult to envisage a worse case of insensitive, high-handed and arbitrary treatment in breach of the fundamental principles of the Universal Declaration of Human Rights, including Articles. 1, 3, 6, 7, 8 and 9. Furthermore, the Tribunal found that the failures of the Ethics Office to recognize such gross violations seriously called into question its suitability and effectiveness as a body charged with the duty, as described in its mandate ST/SGB/2005/22 (Ethics Office—establishment and terms of reference), para. 1.2, to assist the Secretary-General in ensuring that all staff members observe and perform their functions consistent with the highest standards of integrity required by the Charter of the United Nations through fostering a culture of ethics, transparency and accountability. As for costs, the Tribunal found that that the Respondent’s conduct of the proceedings in deliberately and persistently refusing, without good cause, to abide by the Orders of the Tribunal and not granting access to the full ID/OIOS’s investigation report constituted a manifest abuse of proceedings. Pursuant to arts. 10.5 and 10.6 of the Statute of the Dispute Tribunal, the Tribunal ordered the Respondents to pay the Applicant USD50,000 in compensation for non-pecuniary damage which he suffered as a result of the Ethics Office’s failures and USD15,000 in costs.
The judgment concerns the relief to be awarded to the Applicant for the violation of his rights as these have been identified in the Judgment on liability (UNDT/2012/092).
How to assess non-pecuniary damages: A proper assessment of an award for non-pecuniary damages should follow the following steps: (a) There should be a finding as to whether or not the Applicant did in fact suffer such damage; (b) If he did not, there would be no basis for such an award; (c) If he did, it will be important for the Tribunal to make a factual determination of the level of damage, bearing in mind that feelings of upset, stress, anxiety, psychological damage and all such components that either singly or cumulatively make up what has been referred to as “non-pecuniary damages” are at varying levels of severity. At one end of the continuum lies a minimal level and, at the other end, a level of extreme severity. Between these two extremes is the appropriate level and the task of determining this level is properly entrusted to the Tribunal which has seen or has heard the individual giving evidence and describing his feelings and emotional state; (d) The Tribunal has to be satisfied that the damage as described was attributable to action taken by the Respondent; (e) Where the unlawful act was performed maliciously or was high-handed and without due regard for the legitimate concerns and feelings of the staff member it is bound to have aggravated the feelings of distress and will accordingly attract a higher award; (f) The Tribunal has to take into account that the assessment arrived at should be appropriate for the harm suffered. To award a paltry sum will discredit the policy underlying such awards as will an excessive award. Accordingly the Tribunal has to bear in mind the principle of proportionality; (g) Finally, the Tribunal will remind itself that it has no power to award exemplary or punitive damages and that the award must be truly compensatory. Costs: The Respondent deliberately and persistently refusing, without good cause, to abide by the Orders of the Tribunal and not granting access to documents that the Tribunal requires to be disclosed constitutes a manifest abuse of proceedings.