2022-UNAT-1228, Sarah Coleman
Ms. Coleman filed an appeal against the UNDT Judgment asking that UNAT reverse the UNDT findings that (i) the failure to answer Ms. Coleman’s repeated requests for information about her case did not amount to a procedural violation; (ii) Ms. Coleman had failed to provide proof of bias or prejudice; (iii) she was not entitled to moral damages. UNAT found that the specific grounds of appeal under (i) and (ii) were devoid of any practicality as, even if they were to be accepted by the Appeals Tribunal as legally and factually true, this would not lead to a different ruling having an actual, real effect in terms of the validity of the contested administrative decision, which had already been found procedurally unlawful on account of another ground and the matter had been remanded to the Administration for a new consideration. UNAT also found that these specific grounds of possible errors in the UNDT Judgment, referring also to procedural shortcomings of the contested administrative decision, could not impact the amount of compensation awarded. UNAT found merit in the Secretary-General’s contention that these grounds were inadmissible and need not be considered on their merits. UNAT recalled that an entitlement to moral damages may arise where there is evidence produced of harm, stress or anxiety caused to the employee, which can be directly linked, or reasonably attributed, to a breach of his or her substantive or procedural rights and where the Tribunal is satisfied that the stress, harm or anxiety is such as to merit a compensatory award. UNAT found that Ms. Coleman had failed to point to any relevant evidence which the UNDT overlooked in coming to its decision to dismiss Ms. Coleman's claim of harm suffered as a result of the decision not to take further action on her claim of harassment or by the undue delay in the investigation process. UNAT found that the scope of its review on appeal did not go further such as to determine the issue of the Appellant’s claim for moral damages on account of the harassment and abuse of authority she had allegedly suffered as this matter had not been addressed by the UNDT and was still pending before the Administration per the UNDT’s holding. UNAT dismissed the appeal.
Before the UNDT, Ms. Coleman, a former staff member of UNICEF, contested the decision to uphold the determination of the Office of Internal Audit and Investigations (OIAI) that Ms. Coleman’s supervisor did not engage in harassment and abuse of authority against her. The UNDT found that Ms. Coleman had not been interviewed by OIAI in accordance with the required procedure and that the procedural irregularity of not interviewing her not only constituted a serious breach of the applicable legal framework but also violated her due process rights. The UNDT, therefore, found that the contested decision was unlawful. The UNDT further found that the 16-month period that it took OIAI to complete the investigation, without even interviewing Ms. Coleman, was unreasonable. The UNDT however held that Ms. Coleman’s allegations of improper motives were unsubstantiated and that the timing of OIAI investigator’s responses to her requests did not constitute a procedural irregularity. The UNDT granted the application and remanded the case to OIAI for a renewed assessment of Ms. Coleman’s complaint in compliance with the applicable procedure. The UNDT rejected Ms. Coleman’s request for moral damages because it found no nexus between illegality and alleged harm. The UNDT found that the evidence submitted by Ms. Coleman in support of her claim for moral damages, namely the e-mail from the Stress Counselor dated 27 April 2020, was not supportive of the damage alleged because such evidence related to the alleged harassment she had suffered from her supervisor and was not related to any harm she may have suffered as a result of the contested administrative decision not to take further action on her claim of harassment or by the undue delay in the investigation process. The UNDT noted further that whether the Appellant was the victim of prohibited conduct remained to be determined - in view of the fact that it had remanded the case to the Administration for a renewed assessment of the Appellant’s complaint of harassment and abuse of authority - and the UNDT could not award compensation for harm that had not been caused by the contested decision.
A party in whose favour a case has been decided is not permitted to appeal against the judgment on legal or academic grounds. The UNDT has authority to order compensation to a staff member for violation of the staff member’s legal rights under Article 10(5)(b) of the Statute. Compensation may be awarded for actual pecuniary or economic loss, non-pecuniary damage, procedural violations, stress, and moral injury. Compensation for harm shall be supported by three elements: the harm itself; an illegality; and a nexus between both. It is not enough to demonstrate an illegality to obtain compensation; the claimant bears the burden of proof to establish the existence of negative consequences, able to be considered damages, resulting from the illegality on a cause-effect lien. If one of these three elements is not established, compensation cannot be awarded. Harm needs to be shown to be directly caused by the administrative decision in question. If these other two elements of the notion of responsibility are not justified, the illegality can be declared but compensation cannot be awarded. In terms of moral damages, an entitlement to moral damages may arise where there is evidence produced to the Tribunal, predominantly by way of a medical or psychological report of harm, stress or anxiety caused to the employee, which can be directly linked, or reasonably attributed, to a breach of his or her substantive or procedural rights and where the Tribunal is satisfied that the stress, harm or anxiety is such as to merit a compensatory award.