UNDT/2019/035/Corr. 1, Muftic
It was not disputed that the contested decision was unlawful because the Respondent conceded that the Applicant’s candidacy for promotion to the P-5 level during the 2014 Promotions Session was not given full and fair consideration. Therefore, the Tribunal limited its consideration to the issue of remedies. The Tribunal rescinded the contested decision but noted that it has no power to grant the Applicant a promotion to the P-5 level, notwithstanding the admitted flaws in the procedures that resulted in an invalid decision. The granting of a promotion falls within the discretion of the Organization. The Tribunal noted that pursuant to art. 10.5(a) of its Statute, the Tribunal must set an amount that the Organization may elect to pay in lieu of rescinding the decision since it concerns a promotion. The Tribunal recalled that compensation in lieu seeks to compensate staff members for the fact that the Organization will not rescind, or in this case, cannot practically rescind a decision taken in violation of their terms and conditions of employment, as would otherwise be the case. It does not seek to compensate a specific harm which must be supported by evidence. In this respect, the difference of salary between the level of the Applicant at the time of his retirement and the one he may have obtained had he been promoted is relevant in calculating the quantum but not determinative. Indeed, the quantum of the compensation in lieu in Rodriguez-Viquez was established based on compensation awarded in similar cases by the Appeals Tribunal and the Dispute Tribunal, and not by a mere calculation of the difference of salary. Taking all of the circumstances into consideration including the fact that the Applicant did not have any further opportunity for promotion under the Promotions Policy and he retired before the new rank-in-person system took effect on 1 September 2017, the Tribunal set the payment of compensation in lieu of rescission at three months’ net base salary at the time of the Applicant’s date of retirement. In light of the Appeals Tribunal’s jurisprudence, the Tribunal found that it had no power to award the Applicant the requested moral damages based solely on his oral testimony, without any corroborative evidence. The Applicant’s claim for moral damages and punitive damages was rejected.
The Applicant contested the decision of the High Commissioner, notified on 16 November 2015, not to promote him from the P-4 to the P-5 level during the 2014 Promotions Session.
The determination of “compensation in lieu” must be done on a case-by-case basis and carries a certain degree of empiricism (Mwamsaku 2011-UNAT-265). In respect of decisions denying promotions, “there is no set way for a trial court to set damages for loss of chance of promotion and … each case must turn on its facts” (Sprauten 2012UNAT-219 Niedermayr 2015-UNAT-603).