UNAT Held or UNDT Pronouncements
Calculation of compensation. The Tribunal will determine the amount of income the Applicant is likely to have earned but for the impugned decision (pecuniary damages) and the extent of the non-pecuniary harm caused to by the decision to terminate her. Pecuniary damages. It is necessary to consider her fitness to return to work; the likely duration of the contract she could reasonably have expected to have been given; and the amount of work she would likely have been able to perform in view of her disability during the hypothetical contract period. Duration of a hypothetical contract period. It is more likely than not that the Applicant would have been offered an extension for, at least, the same time period had her employment not been improperly terminated. Without further evidence, it would be speculative to find that her contract would have been extended beyond this duration. Mitigation of damages. The duty for an aggrieved party to mitigate her/his losses by requiring the demonstration of reasonable efforts to obtain other employment to limit her/his income loss during the relevant time period has its foundation in internationally recognised legal principles and has been affirmed in the jurisprudence of the Dispute and Appeal Tribunals. Offsetting actual income received. Actual income which the Applicant obtained during the relevant compensation period should normally be offset in the award for damages for actual income. Non-pecuniary harm. A person seeking an award for non-pecuniary harm must present evidence of the adverse effects on him or her of the legal wrong. Such damages are awarded in light of the particular circumstances of the case and of the specific harm caused by the legalwrong to the aggrieved party. The subjective motives of the infringing party. Pursuant to art. 10.7 of the UNDT Statute, exemplary or punitive damages may not be awarded; therefore, in principle, the subjective motives of the officials responsible for infringing an aggrieved individual’s employment contract is not a factor in calculating the amount of compensation. Cap of two years’ net base salary. Should the total amount of compensation awarded by the Tribunal exceed the cap of two years’ net base salary cap as stipulated by art. 10.5 of the Statute of the Dispute Tribunal, the compensation is to be limited to two years’ net base salary as the Applicant has failed to specify the exceptional circumstances to justify any higher award.Outcome: Pecuniary damages: 75 percent of the full-time salary net base she would have obtained had her contract in SSC, UNDP, been extended for an additional 18 months’ period, from 1 July 2006 to 31 December 2007. Non-pecuniary damages: USD50,000. Maximum: No more than two years’ net base salary,
Decision Contested or Judgment/Order Appealed
The Respondent was found liable for wrongfully terminating the Applicant for the reasons set out in UNDT/2011/209. As the parties, despite being encouraged to do so, were not able to reach an amicable settlement on this, the UNDT set the amount of compensation.
Legal Principle(s)
N/A