2014-UNAT-469, Eissa
UNAT considered an appeal by the Secretary-General which challenged the remedies afforded Mr Eissa. UNAT held that there was no merit in the Secretary-General’s contention that UNDT erred in not explaining which irregularities were substantive and which were procedural, as either type of irregularity may support an award of moral damages. UNAT held that there was no merit in the Secretary-General’s contention that the award was duplicative of the award of alternative compensation in lieu of rescission. UNAT noted that an award under Article 10(5)(a) of the UNDT Statute is alternative compensation in lieu of rescission and is not an award of moral damages for the fundamental breaches of the right not to be unlawfully terminated from service and to be automatically transitioned to the post of UNMISS Spokesperson. However, UNAT reduced the award of moral damages to six months’ net base salary in accordance with Hersh v. Secretary-General of the United Nations (2013-UNAT-433). With respect to the Secretary-General’s claim that UNDT’s decision to rescind the termination decision and award compensation for substantive and procedural irregularities was based on errors of fact, UNAT held that this claim could not prevail in light of UNDT’s conclusion that the decision to terminate Mr Eissa was unlawful. UNAT held that the conclusion that the termination decision was unlawful was sufficient in and of itself to support the recission of that decision and the award of alternative compensation in lieu of recission, pursuant to Article 10(5)(a) of the UNDT Statute. UNAT dismissed the appeal and affirmed UNDT’s judgment subject to a reduction in the amount of compensation in lieu of recission to one year and six months’ net base salary and reduction of moral damages in the amount of six months’ net base salary.
Mr Eissa contested the decision to terminate his service. UNDT concluded that the decision was unlawful. UNDT ordered recission of the decision and for Mr Eissa’s reinstatement, or as an alternative two years’ net base salary as compensation in lieu of recission. UNDT awarded Mr Eissa compensation for the substantive and procedural irregularities occasioned him by the failure by the Administration to follow its own guidelines, rules and procedures in the amount of one year’s net base salary for the substantive irregularity and four months’ net base salary for the procedural irregularity.
Damages for a moral injury may arise from a breach of the employee’s substantive entitlements arising from their contract of employment. Where the breach is of a fundamental nature, the breach may of itself give rise to an award of moral damages, not in any punitive sense for the fact of the breach having occurred, but rather by virtue of the harm to the employee. An award of moral damages for a breach of a staff member’s rights, especially when the breach is of a fundamental nature, does not require evidence of harm or a finding of harm. In order to overturn a finding of fact by the UNDT, UNAT must be satisfied that the finding is not supported by the evidence or that it is unreasonable.