�山����

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 The Tribunal rescinded the contested decision but noted that it has no power to grant the Applicant a promotion to the P-5 level, notwithstanding the admitted flaws in the procedures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 recalled that pursuant to art. 10.5(a) of its Statute, it must set an amount that the Organization may elect to pay in lieu of rescinding the decision since it concerns a promotion. The Tribunal stressed that setting the amount of compensation in lieu under sec. 10.5(a) of its Statute is different from calculating material damages under sec. 10.5(b). 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. The Tribunal considered that the difference of salary between that of the Applicant at his current level and the one he would have had had he been promoted was relevant in calculating the quantum but not determinative. It also noted that 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. The Tribunal saw no cogent reason to depart from the general approach adopted in Rodriguez-Viquez, noting that the Applicant was in a position where he could still apply for positions at the P-5 level and thus get a promotion through the new rank-inpost system. However, the Tribunal also noted that the Applicant was denied the opportunity to be promoted for effectively two years, as the 2015 Promotions Session was cancelled, and the new system was not introduced until September 2017. Thus, the Tribunal set the amount of compensation at CHF12,000. The Applicant’s request for moral damages was rejected.