UNDT/2024/071, Fusco
Compensation in lieu is “not related at all to the economic loss suffered” (see Nega 2023-UNAT-1393,para. 62) and there is no duty to mitigate loss as a precondition for receiving in lieu compensation (see Zachariah 2017-UNAT-764). It is, according to the Tribunal’s Statute, an option that the Respondent can take instead of reinstating the Applicant in the service. Therefore, pecuniary loss or gain is not a relevant factor.
Consistent with the requirement to act fairly, justly and transparently, the Respondent bears the burden to show that the Applicant did not possess the core and functional competencies required for the positions (see, for instance, Smith 2017-UNAT-768).
In a distinguishable case of El Kholy 2017-UNAT-730, the Appeals Tribunal reduced the Dispute Tribunal’s award of two years to 18 months net base salary because it was established that the staff member failed to cooperate fully and to express interest in Job Fairs. Contrast that with Fasanella 2017-UNAT-765, where the Appeals Tribunal was satisfied that the staff member had unsuccessfully applied for posts and was awarded two years’ net base salary in lieu of reinstatement.
The Applicant contestedthe following two decisions:
1) the decision to separate him “by termination without applying appropriate priority consideration for suitable available posts”, and
2) the decision not to select him for the post of Director, Brussels Office, Public Partnership Division (“PPD”).
It is a well-established legal principle that to be reviewable, an administrative decision must be final. A reviewable decision is one that “is of an administrative nature, adversely affects the contractual rights of a staff member and has a direct, external legal effect… The rationale for this principle is the idea that judicial review should concentrate pragmatically on consequential decisions of a final nature” (see, ’B 2023-UNAT-1313, para. 24, and also Michaud 2017-UNAT-761, para 50). Under staff regulation 9.3(i) and staff rule 9.6(c)(i), the Secretary-General may terminate the appointment of a staff member if the necessities of service require abolition of the post or reduction of the staff. "As a result of judicial review, the Tribunal may find the impugned administrative decision to be unreasonable, unfair, illegal, irrational, procedurally incorrect, or disproportionate. During this process the Dispute Tribunal is not conducting a merit-based review, but a judicial review. Judicial review is more concerned with examining how the decision-maker reached the impugned decision and not the merits of the decision-maker’s decision" (Sanwidi 2010-UNAT-084, para. 42). When deciding the amount of in lieu compensation, the Tribunal must ensure that the staff member is placed in the same position he or she would have been in, had the Organization complied with its contractual obligations (see Kilauri 2022-UNAT-1304 and Ashour 2019-UNAT-899, para. 18). |
It is a well-established legal principle that to be reviewable, an administrative decision must be final. A reviewable decision is one that “is of an administrative nature, adversely affects the contractual rights of a staff member and has a direct, external legal effect… The rationale for this principle is the idea that judicial review should concentrate pragmatically on consequential decisions of a final nature” (see, ’B 2023-UNAT-1313, para. 24, and also Michaud 2017-UNAT-761, para 50).
Under staff regulation 9.3(i) and staff rule 9.6(c)(i), the Secretary-General may terminate the appointment of a staff member if the necessities of service require abolition of the post or reduction of the staff.