����AV

Rescission of the contested non-renewal decision In its Judgment Quatrini UNDT/2020/043, the Tribunal found that the Organization failed to justify the non-renewal of the contract of the Applicant and that the decision to separate him from service was therefore flawed. The Tribunal further held, comparing the P-5 level position formerly encumbered by the Applicant with the one advertised in the Global Mechanism, that the two positions are essentially the same, the Tribunal thus drew the inference that the position still exists. In these circumstances, the Tribunal found that the most appropriate remedy is the rescission of the unlawful decision not to renew the Applicant’s FTA and the reinstatement of the Applicant in the same position he encumbered (see for similar rescission in case of FTAs’ non-renewal, Applicant UNDT/2020/16, Loose UNDT/2020/38, and Maslei UNDT/2015/41). Determination of the compensation in lieu As the compensation is just a mandatory alternative for the Administration if it prefers not to rescind the challenged decision and it does not concern the economic loss suffered by a staff member, the Applicant does not have to demonstrate to have mitigated his loss. The determination of the compensation in lieu between the minimum and the maximum provided in its Statute must take into account—so graduating the amount accordingly— the specific circumstances of the case, and in particular the type and duration of the contract held by the staff member, the length of his/her service, and the issues at the base of the dispute… it seems reasonable—for instance—to grant the largest compensation in cases of termination of permanent appointments of senior staff members, and to limit the compensation in cases of non-renewal of FTAs for recently appointed staff members (where there is not a security of tenure, but only a chance of renewal). In the present case, having in mind the above-mentioned criteria and applying them to the specific case at hand (and so having considered the seniority of the Applicant, the type of contract held, and the chance of renewal of the contract in a position still required by the Administration), the Tribunal sets the amount of the compensation in lieu at six months’ net-base salary at the P-5, step X level as per the salary scale in effect at the time of the Applicant’s separation from service. Compensation for harm Pecuniary damages The Tribunal considers that there is too much uncertainty as to whether the Applicant would have been offered an additional FTA after the first renewal. In particular, while the Applicant submits that the budget maintained a position at the P- 5 level throughout the entire period until 2021, the Tribunal finds that it would be too speculative under the Appeals Tribunal’s jurisprudence to extend the compensable period any further than that two years as of the date of separation and at the P-5 level. The Tribunal notes that it could legitimately have been decided to not renew the Applicant’s appointment for other legitimate grounds than budgetary reasons. Therefore, the basis for the calculation of loss of income should be limited to the period from 1 July 2018 to 31 December 2019, namely 18 months. The Applicant submits that he applied for more than 100 other jobs, but only succeeded in a part-time and short-term job along with some consultancies. The Tribunal is satisfied that the Applicant did make real and consistent efforts to mitigate his loss. Based on the documentation at hand and the parties’ submissions, the Tribunal accepts the amounts presented by the Applicant, which have to be deducted from the amount of damages. Therefore, should the calculation of damages give a positive balance in favour of the Applicant, the Respondent is to pay the Applicant 18 months’ net-base salary provided for the P-5 level position, minus USD132,833. Non-pecuniary (moral) damages The Tribunal is aware that the Applicant has not been able to find steady employment since his separation from the Organization, although he had unsuccessfully applied for many jobs. The Tribunal, however, is unconvinced that the Applicant’s lack of success in finding alternative employment can be attributed to the non-renewal decision as other prospective employers would not likely even be aware of this decision and its background. The Applicant, at least, has not proved this in any possible manner. The Applicant’s claim for compensation for reputational damage is therefore rejected. The Tribunal finds that the documents provided by the Applicant are credible and does not doubt their veracity it can therefore rely on them as adequate means of evidence of the moral harm suffered by the Applicant. As for the compensation amount, the Tribunal finds that the Applicant’s suffering was indeed relevant and that he did not contribute thereto himself. It has to be noted, however, that the moral harm has been proved by the Applicant only for a few months, namely up to September 2018. Considering the Appeals Tribunal’s jurisprudence, the Tribunal awarded the Applicant USD10,000 in compensation for stress and anxiety (in comparison, see, for instance, the Appeals Tribunal’s awards in Kallon (USD50,000) and Belkhabbaz UNAT-2018-873 (USD10,000)).