UNDT/2010/026, Kasyanov
There was substantial impact on the applicant’s life and work, which was both foreseeable and a direct result of the breach. Injury to career prospects: It is reasonable to infer that the applicant will probably be promoted in due course and that this prospect has been delayed by his failure to achieve the position in Geneva. This is economic loss. The court proceedings were burdensome, stressful, and time consuming, but this matter is inextricably involved with the denial, up to the judgment, of the applicant’s rights, and will be sufficiently recompensed as part of the award for the breach of the applicant’s rights. Outcome: The respondent was ordered to pay USD59,932 by way of compensation to the applicant. It was also ordered that a lateral move to be recorded in the applicant’s personnel records as having taken place as a prerequisite for satisfying sec 5.3 of ST/AI/2006/3 (or that USD20,000 be paid as an alternative to the recording of the lateral move).Page 1 of 2
On 23 September 2009, the Tribunal gave judgment UNDT/2009/022 for the applicant, deciding that he should have been selected for a lateral move since he was the only suitable and eligible 15-day candidate. The parties were directed to make submissions as to the appropriate relief. This judgment addresses the nature and scope of compensation that may be ordered by the Dispute Tribunal.
Meaning of compensation: Compensation in art. 10.5 of the Statute should be given as ample a meaning as it reasonably bears without artificial or technical limitations. It covers the duty to place a staff member, as nearly as money can do so, in the same position as he would have had if there were no breach, in respect of any direct or foreseeable loss, whether economic or otherwise. The practical difficulty of measuring the amount of compensation to be awarded does not mean there has been no compensable loss or make such compensation punitive. Breach of a right: The applicant’s legal right to appointment was a valuable right, though not economic, and its violation warrants compensation. Actual damages: If a staff member had a right to a specific amount as an emolument and he was unlawfully deprived of that money, he is entitled to get it back. The respondent’s purpose for paying part of the emolument due by way of “post adjustment†isimmaterial, does not bind a staff member and is an artificial statistical construction saying little or nothing about the staff member’s actual expenditure. The applicant is entitled to the difference in post adjustment between Geneva and New York. Emotional stress: The Tribunal should award compensation for mental distress, if any, caused by the breach of contract but there must be evidence of this injury, which will not be presumed. Burden of proof with respect to damages: In relation to the question of damages, there is no inappropriate assumption that the Administration’s decisions are correct, and the usual rule that the plaintiff—here the applicant—must prove his or her damages and the respondent establish any mitigation applies. Authority to amend administrative instructions: Administrative instructions cannot be amended by memoranda or by officials who lack proper delegated authority.