Loss of chance

UNAT noted that the only issue on appeal was the issue of appropriate compensation for the unlawful contested decision.  UNAT found that the UNDT appropriately found that the requested compensation in the amount of two years’ net base salary was unwarranted as it would exceed the emoluments to which he would have been entitled absent the unlawful termination. UNAT found no merit in Mr. Kilauri’s contention that the UNDT failed to consider the nature and level of the post he formerly occupied and the chances of renewal beyond the expiry of his fixed-term contract but for his unlawful...

In reviewing the Appellant’s appeal, UNAT found that the decision to terminate the Appellant’s position was based on generalized reasons, as opposed to specific facts, and found no real justification for the decision. UNAT held that this was inconsistent with the jurisprudence of the former Administrative Tribunal, which provides that an Administration must act in good faith and not make decisions based on erroneous, fallacious, or improper motivation. UNAT noted that when an administrative decision concerns termination, it shall set an amount of compensation that the respondent may elect to...

UNAT considered Mr James’ appeal and the Secretary-General’s cross-appeal. UNAT affirmed UNDT’s finding that Mr James was not eligible for the P-3 position both because he did not take the required examination and because of the lack of required qualifications. UNAT accordingly dismissed Mr James’ appeal that UNDT erred in not awarding him compensation for loss of opportunity. UNAT allowed the cross-appeal and set aside the order for compensation for distress. UNAT noted that the compensation was not requested, there was no evidence of damage or injuries, and Mr James acknowledged on appeal...

UNAT considered an appeal by the Secretary-General. UNAT held that Mr Dualeh was not promoted as a result of the fact that the other candidates had scored higher than he had and he would not have been promoted even if the other candidates had not been promoted. UNAT held that the procedural irregularity had no impact on his non-promotion. UNAT held that the direct effect of an irregularity will only result in the rescission of the decision not to promote a staff member when he or she would have had a significant chance of promotion. UNAT held that UNDT should neither have rescinded the...

UNAT considered an appeal by the Secretary-General. UNAT held that Ms Bofill was not promoted as a result of the fact that the other candidates had scored higher than she had and she would not have been promoted even if the other candidates had not been promoted. UNAT held that the procedural irregularity had no impact on her non-promotion. UNAT held that the direct effect of an irregularity will only result in the rescission of the decision not to promote a staff member when he or she would have had a significant chance of promotion. UNAT held that UNDT should neither have rescinded the...

UNAT held that UNDT did not err in law or in fact in its assessment that the issue before it was the amount of compensation. UNAT held that UNDT’s approach in considering the Appellant’s prospects of success was entirely reasonable in the particular circumstances of the case. UNAT held that it was not the function of UNDT or UNAT to take on the substantive role with which the interview panel was charged and to find that the Appellant was the only qualified candidate. UNAT recalled that the jurisdiction vested in UNDT is to review alleged procedural deficiencies and to rectify any which are...

UNAT held that UNDT correctly found that it did not have jurisdiction to conduct a de novo investigation of the Appellant’s formal complaint of harassment; rather its task was to determine if there was a proper investigation into the allegations. UNAT held that UNDT awarded adequate compensation to the Appellant for the infringement of his rights with regard to the harassment complaint. UNAT held that UNDT did not make any errors of procedure in deciding upon the weight to be given to written statements tendered by the Appellant. UNAT held that it was not persuaded that UNDT made any errors of...

The Appellant appealed the amount of compensation awarded for loss of chance. UNAT noted that there was no set way for the trial court to set damages for loss of chance of promotion and that each case turned on its facts. UNAT noted that it would generally defer to the trial court’s discretion. UNAT did not accept the Appellant’s argument that the trial court was required to assess the percentage chances that he would have been selected: UNAT held that while it had approved that procedure as one method of assessing damages, it respected the opinion of the trial judge as to how to determine...

UNAT found that there was no evidence of damages or injuries in this case. UNAT reaffirmed the principle that an award for moral damages must be supported by specific evidence.

UNAT held that UNDT’s approach, in determining the amount of compensation to be awarded to the Appellant, was reasonable. UNAT relied on its holding in Hastings (2011-UNAT-109), where it held that the trial court is in a much better position than UNAT in assessing the probabilities of a candidate being selected for a position. UNAT also found that UNDT correctly concluded that the Appellant should not be awarded any additional compensation beyond the amount already paid to her. UNAT further dismissed the Appellant’s request to award costs against the Secretary-General, noting that there were...