UNAT Held or UNDT Pronouncements
The Appeals Tribunal found that the UNDT erred in law when it awarded in-lieu compensation in the amount of 6 months' net base salary without providing reasons to support said amount. The Appeals Tribunal found that had Mr. Isufi's appointment not been unlawfully not renewed and all other relevant considerations being equal, he might reasonably have expected to have enjoyed another one-year fixed-term appointment. Factoring in a variety of applicable contingencies, including his known history of consistent and repeated less-than-satisfactory performance, together with the other usual contingencies of possible early retirement, redundancy and like uncertainties, the Appeals Tribunal considered that a downwards adjustment from one year’s base remuneration to account for such contingencies had to be made to 9 months.
Turning to Mr. Isufi’s appeal against the UNDT’s refusal to award him compensation for moral harm, the Appeals Tribunal was satisfied that the UNDT was correct to conclude that there was no causative connection proven between the Administration’s wrongful decision and the ill-health he suffered.
Furthermore, the Appeals Tribunal denied Mr. Isufi's request for an accountability referral finding that the history of the Administration’s assessments of his performance over several cycles amply demonstrated its failings and there was no need for reinforcement of this by a referral for accountability.
The Appeals Tribunal granted the appeal in part and modified Judgment No. UNDT/2025/061/Corr.1 by substituting an award of in-lieu compensation equivalent to 9 months’ base remuneration plus interest. It dismissed the remainder of the appeal.
Decision Contested or Judgment/Order Appealed
By Judgment No. UNDT/2025/061/Corr.1, the UNDT granted in part an application by Mr. Isufi, a former staff member of the United Nations Development Coordination Office in Kosovo, contesting the Administration’s decision not to renew his fixed-term appointment for reasons of alleged unsatisfactory performance.The UNDT found that Mr. Isufi’s overall performance had not been managed or evaluated in a fair and objective manner, and it consequently found that the contested decision was unlawful. The UNDT rescinded the decision not to renew his appointment and directed Mr. Isufi’s reinstatement with no loss of benefits and entitlements. In lieu of those remedies, the UNDT awarded 6 months' net base salary and interest thereon. The UNDT dismissed Mr. Isufi’s claim for moral damages.
Mr. Isufi appealed.
Legal Principle(s)
While the amount of in-lieu compensation is generally one within the UNDT Judge’s discretion, there are limits to the exercise of that discretion. One specific limitation is that the exercise of that discretion is not unfettered. A second limit is that the UNDT’s Statute and Rules of Procedure require that reasons (fact and law) be given by the UNDT for its decisions.
Fixing in-lieu compensation will often call for a probabilities’ assessment of how much longer a staff member would have remained in his/her post with common contingencies (such as retirement, later redundancy, ill health, satisfactory or unsatisfactory performance and the like) being applied to that initial probabilities’ assessment. The fundamental principle applicable in such exercises is, subject to these limitations, to restore the staff member to the circumstances he/she would have been in but for the unlawful decision and its effects on the staff member. The effect of the statutory cap is, however, that even if the Tribunals are satisfied that the staff member would probably have remained in post for longer than that period, an award of true and full compensation in these circumstances cannot be made.
Compensation for moral damages may be awarded for stress, anxiety, reputational harm, and other like consequences of unlawful action so long as these are causally connected to the wrong(s) and the need for them and their extent are supported by evidence. The onus to establish such damage or loss being on the staff member, their evidential burden is to prove such losses and their cause to a preponderance of evidence standard. It is open to the Administration in opposing such relief to do any or all of the following: to question witnesses supporting such claims; to call its own contradictory witnesses; and to make submissions to the Dispute Tribunal about the admissibility or weight to be given to such evidence as is adduced by the staff member.
Outcome
Outcome Extra Text
Mr. Isufi’s appeal is granted in part, and Judgment No. UNDT/2025/061/Corr.1 is hereby modified by substituting for the Dispute Tribunal’s award of six months’ remuneration, an award of compensation in lieu of rescission under Article 10(5)(a) of the UNDT Statute equivalent to nine months’ net base remuneration plus interest, but his appeal is otherwise dismissed.