2011-UNAT-131, Cohen

UNAT Held or UNDT Pronouncements

UNAT recalled that Article 10. 5 of the UNDT Statute limits the total compensation awarded under subparagraphs (a) or (b), or both, to an amount that shall normally not exceed two years’ net base salary of the applicant, unless the Tribunal orders the payment of higher compensation and gives the reasons for that decision. In cases where UNDT rescinds an illegal decision to dismiss a staff member, the Administration must both reinstate the staff member and pay compensation for loss of salaries and entitlements. If the Administration elects to pay compensation in lieu of the performance of a specific obligation such as reinstatement, in addition to the compensation that the Tribunal ordered it to pay for the damage suffered by the applicant, that election may, depending on the extent of the damage, render the circumstances of the case exceptional within the meaning of Article 10. 5(b) of the UNDT Statute. In such a situation, the Tribunal is not bound to give specific reasons to explain what makes the circumstances of the case exceptional. The option given to the Administration to pay compensation in lieu of specific performance should not render ineffective the right to an effective remedy.

Decision Contested or Judgment Appealed

The former staff member contested the decision to summarily dismiss her for serious misconduct. UNDT concluded that the Secretary-General had not presented facts supporting the grounds for misconduct and summary dismissal. UNDT ordered the reinstatement of the staff member or, in lieu thereof, payment of two years’ net base salary. UNDT also ordered that the staff member be paid compensation for lost earnings in the amount of 30 months’ net base salary and for the breach of her right to due process in the amount of two months’ net base salary.

Legal Principle(s)

When the Administration elects to pay compensation in lieu of the performance of a specific obligation ordered by the Tribunal, in addition to the compensation that the Tribunal ordered it to pay for the damages suffered by the applicant, that election may render the circumstances of the case exceptional within the meaning of Article 10. 5(b) of the UNDT Statute. In such a situation, the Tribunal is not bound to give specific reasons to explain what makes the circumstances of the case exceptional.

Outcome

Appeal granted in part

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The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.

Full Judgment

Applicants/ Appellants

Cohen

Entity

Case Number(s)

Tribunal

Registry Location