Material damages (693, 665,-666)
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Keywords: Material damages
Total judgments found: 163
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Judgment 4840
138th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to renew her fixed-term contract due to underperformance after placing her on a three-month Performance Improvement Plan.
Consideration 34
Extract:
[T]he complainant claims material damages in an amount equal to two years’ salary, benefits, step increases, pension contributions, and all other entitlements and emoluments that she would have received had she not been wrongfully separated from service. This claim is not substantiated in the complainant’s proceedings be it in terms of years sought or of her expectations within the Organization. Given that any fixed-term contract the complainant ever held with IOM never exceeded one year and that the total length of her services with the Organization lasted approximately five years, the Tribunal considers that this claim is not justified and overstated in the circumstances.
An award of material damages in an amount equivalent to nine months’ salary, including benefits, entitlements and emoluments, represents a fair and reasonable compensation in the present case. IOM will be ordered to pay this amount to the complainant, plus interest at the rate of 5 per cent per annum from 1 November 2019, less any amounts she may have earned from other employment during that period of nine months beginning on 1 November 2019.
Keywords:
breach; burden of proof; due process; fixed-term; injury; material damages; non-renewal of contract;
Judgment 4839
138th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to reject her sexual harassment claim.
Consideration 11
Extract:
Where the investigation into a harassment complaint is found to be flawed, the Tribunal will ordinarily remit the matter to the organisation concerned so that a new investigation can be conducted (see, for example, Judgment 4313, consideration 8). However, the complainant asks the Tribunal not to refer the matter back to IOM, but to award her material and moral damages. In view of this and the time that has elapsed, the Tribunal considers it inappropriate to refer the case back to IOM.
Reference(s)
ILOAT Judgment(s): 4313
Keywords:
case sent back to organisation; damages; flaw; investigation; material damages; moral damages; remand;
Judgment 4836
138th Session, 2024
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his non-selection for several positions.
Consideration 17
Extract:
As it cannot be said with certainty that the complainant would have been the successful candidate had the selection processes for the subject positions not been flawed, he is not entitled to an award of material damages for the loss of one year’s salary or for loss of opportunity he seeks.
Keywords:
material damages; selection procedure;
Judgment 4832
138th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose on her the disciplinary sanction of demotion by two grades.
Considerations 55-56
Extract:
Before anything else, the Tribunal finds it necessary to mention that claiming amounts of this magnitude [i.e. 1,000,000 Swiss francs in moral, exemplary, and punitive damages] does not serve, assist or help the credibility of the requests submitted. The Tribunal observes as well that the complainant does not substantiate in any way how the amounts claimed are divided between moral damages, on the one hand, and punitive damages, on the other hand.
Bearing that in mind, it is convenient to recall that the Tribunal’s established case law relevantly states that any complainant seeking compensation for either material or moral damages must always provide evidence of the injury suffered, of the alleged unlawful act, and of the causal link between the unlawful act and the injury (see, for example, Judgments 4158, consideration 4, 3778, consideration 4, 2471, consideration 5, and 1942, consideration 6), and that it is the complainant who bears the burden of proof in this respect (see Judgments 4158, consideration 4, 4157, consideration 7, and 4156, consideration 5). It is convenient for the Tribunal to recall as well that punitive damages are only awarded in exceptional circumstances (see, for example, Judgment 4659, consideration 14).
Reference(s)
ILOAT Judgment(s): 1942, 2471, 3778, 4156, 4157, 4158, 4659
Keywords:
burden of proof; material damages; moral damages; punitive damages;
Judgment 4801
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the appointment of the Principal Director of Human Resources.
Consideration 6
Extract:
No claim for material damages was made in the internal appeal and cannot now be made in the Tribunal (see, for example, Judgments 4304, consideration 8, and 2360, consideration 7).
Reference(s)
ILOAT Judgment(s): 2360, 4304
Keywords:
internal remedies not exhausted; material damages; receivability of the complaint;
Judgment 4615
135th Session, 2023
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her appointment.
Consideration 26
Extract:
The Tribunal notes that the complainant’s appointment was due to end on 30 September 2021 (three-year contract) and it was terminated on 17 June 2019. Firstly, there is no evidence that the complainant’s contract was likely to be renewed. On the contrary, in the circumstances of this case, such a prospect was purely hypothetical and even highly unlikely. Therefore, the Tribunal, in assessing the amount of material damages, will not take into account a possible renewal of the complainant’s contract (see Judgment 4139, consideration 10). Regarding the period from 17 June 2019 to 30 September 2021, the Tribunal takes into account that there is a real possibility that the complainant would have been dismissed as a result of disciplinary proceedings prior to the expiry of her appointment.
The material damages should be determined on an equitable basis as an amount equivalent to the salary and various indemnities the complainant would have received if her employment had continued for one year subsequent to the date of termination, net of any income from other employment received during that year. The organisation shall also pay the complainant the equivalent of the pension contributions that it would have had to pay for her during the same period. All these amounts shall bear interest at the rate of 5 per cent per annum as from the date on which they fell due until the date of payment.
Keywords:
material damages;
Judgment 4583
135th Session, 2023
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his appointment for reasons of professional unsuitability and the decision to place him on special paid leave until the end of his period of notice.
Consideration 8
Extract:
The complainant asks for an award of material damages equivalent to his salary and emoluments from the date the unlawful termination became effective until his ordinary retirement age (65 years) or even later (until the age of 68 years). The Tribunal observes that the complainant held an open-ended contract. According to Regulation R 2 6.08 “[a]n open-ended contract may be terminated at any time by either party”. According to Regulation R 2 6.10 “[t]he retirement age shall be 65 years. Service shall automatically cease on the last day of the month in which the 65th birthday falls. However, on an exceptional basis, a staff member may by mutual agreement with the Director General and in the interest of the Laboratory, carry on working until the age of 68.” In light of these Regulations, there is no evidence that the complainant’s appointment, had it not been unlawfully terminated, would have been extended until he would have reached the age of 68 years, as such extension is exceptional. Nor is there any certainty that, had the complainant’s appointment not been unlawfully terminated, it would have lasted until the ordinary retirement age of 65 years, as an open-ended contract may be terminated at any time. Nonetheless, the complainant lost a valuable opportunity to have his open-ended contract prolonged until his retirement age of 65 years. Considering that when the unlawful termination became effective (July 2022), the complainant was 62 and had three more years until reaching the ordinary retirement age, the Tribunal determines the material damages (under all heads, including loss of pension rights and interest) in the sum of 150,000 euros.
Keywords:
loss of opportunity; material damages;
Judgment 4579
135th Session, 2023
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to discharge him.
Consideration 9
Extract:
The organization shall pay the complainant the equivalent of the salary and various indemnities, net of any income from other employment received as from the date of the discharge and until the date of effective reinstatement and should restore his pension rights. All these amounts shall bear interest at the rate of 5 per cent per annum as from the date on which they fell due until the date of their payment.
Keywords:
interest on arrears; material damages; salary;
Judgment 4577
135th Session, 2023
World Tourism Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Follow-up judgment for the determination of material damages and consequential orders.
Consideration 4
Extract:
One point of difference is whether the loss of future income should be assessed by reference to a retirement age from UNWTO of 62 years or 65 years. The latter is the normal age of retirement but, it appears from the material before the Tribunal, the complainant would have had the option of retiring at 62 years.
Keywords:
material damages; retirement age; salary;
Consideration 6
Extract:
In relation to health insurance, the complainant has continued to contribute to the after-service health insurance Scheme and make payments to UNWTO’s health insurance provider. In total she will have, by September 2025, paid approximately 15,000 euros in this respect. The complainant requests that she be reimbursed these amounts because the amounts claimed for future loss of salary were net amounts. That is to say, as the Tribunal understands the argument, if she had succeeded in claiming the full amount of future salary lost it would not have included contributions made as just discussed. The contributions should be provided for separately by a specific award of damages. But the complainant derives a benefit from making these payments. They do not constitute a compensable loss. Accordingly, this claim is rejected.
Keywords:
health insurance; material damages; medical insurance;
Consideration 8
Extract:
The next head of material damages claimed, is the costs she has incurred in seeking to obtain the status of a legal resident in Spain where she owns a house and a car and has an established life. Before her dismissal she had the benefit of residency as a result of the Headquarters Agreement between the Kingdom of Spain and the World Tourism Organization. Again, however, this loss, if it be a loss, was only remotely, and too remotely, connected with the complainant’s dismissal. This claim is rejected.
Keywords:
causal link; material damages; residence permit;
Judgment keywords
Keywords:
material damages;
Judgment 4576
135th Session, 2023
World Tourism Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Follow-up judgment for the determination of material damages and consequential orders.
Consideration 4
Extract:
One point of difference is whether the loss of future income should be assessed by reference to a retirement age from UNWTO of 62 years or 65 years. The latter is the normal age of retirement but, it appears from the material before the Tribunal, the complainant would have had the option of retiring at 62 years.
Keywords:
material damages; retirement age; salary;
Judgment keywords
Keywords:
material damages;
Consideration 6
Extract:
[A]ny financial loss associated with the deprivation of membership of a particular health fund would include a loss occasioned by the non-payment of claims for medical expenses incurred and otherwise recoverable from that fund. [T]he complainant does not establish that he could be enrolled in that health fund in the absence of actually serving, as a matter of fact, the qualifying period.
Keywords:
health insurance; material damages; medical insurance;
Judgment 4504
134th Session, 2022
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to demote her from grade P4 to grade P3 for a period of two years.
Consideration 17
Extract:
[T]he impugned decision will be set aside to the extent that it found that demotion from grade P4, step PP1 to grade P3, step PP2 for a period of two years was a proportionate disciplinary measure. The matter will be remitted to WIPO for reconsideration of whether, in all the circumstances, any lesser disciplinary sanction should be imposed and, if so, what.
As a result of setting aside the impugned decision to the extent determined in this consideration, WIPO will be ordered to reimburse the complainant, as material damages, all salaries and allowances which she would have been paid if the disciplinary sanction of demotion was not imposed upon her.
Keywords:
decision quashed; disciplinary measure; material damages;
Judgment 4391
131st Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to promote him in the 2008 promotion exercise.
Consideration 12
Extract:
Inasmuch as no evidence was provided that the Promotion Board had recommended his promotion retroactive to 2008, and keeping in mind that it is not within the Tribunal’s purview to order the promotion of an official (see Judgments 4066, consideration 11, and 4040, consideration 2), the complainant is entitled to material damages for the loss of a valuable opportunity to be promoted. The EPO will be ordered to pay the complainant a lump-sum amount equivalent to the cumulative amount of the additional salaries and all other benefits that he would have been entitled to receive through his monthly payslips, had he been promoted in the 2012 exercise, until the date of his retirement.
Reference(s)
ILOAT Judgment(s): 4040, 4066
Keywords:
competence of tribunal; loss of opportunity; material damages; promotion;
Judgment 4304
130th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision of the Director-General to cancel the “Falls Below Expectations” overall rating in her 2014 performance appraisal report and to restore her entitlements as in the case of satisfactory performance, but not to award her damages or costs.
Consideration 8
Extract:
In the internal appeal, the complainant did not seek material damages. However, in the present complaint, in addition to other redress, the complainant seeks material damages for the serious financial injury she sustained caused by the administration of her case which she alleges resulted in the termination of her contract for health reasons and the shortening of her career rather than obtaining a lateral transfer as recommended by the HBA. The complainant’s claims regarding the termination of her contract and consequences of the termination are beyond the scope of the present case. Additionally, the complainant has not established any loss due to the mismanagement of the 2014 performance evaluation for which she would be entitled to an award of material damages.
Keywords:
material damages; new claim;
Judgment 4234
129th Session, 2020
International Office of Epizootics
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him.
Consideration 10
Extract:
The Tribunal considers that the material injury suffered by the complainant will be fairly redressed by ordering the OIE to pay him the equivalent of the salary and various indemnities which he would have received if he had been in service from 1 October 2015 until the end of his fixed-term contract on 11 September 2016, net of any substitute income and income from employment received during that period. The Organisation will also be required to pay him the equivalent of the pension contributions that it would have had to pay for him during the same period. All these amounts shall bear interest at the rate of 5 per cent per annum as from the date on which they fell due until the date of their payment, but an order for the payment of compound interest is not warranted.
Keywords:
material damages;
Judgment 4229
129th Session, 2020
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former staff member of the World Food Programme, challenges the decision to maintain the decision not to renew his contract, and to award him material and moral damages instead of reinstatement.
Consideration 4
Extract:
Notwithstanding the setting aside of the impugned decision, the Tribunal considers that the award of 70,000 euros, which the Organization paid to the complainant for the lost opportunity to be considered for renewal, was reasonable. Accordingly, it will be unnecessary to award him any further sum in this regard. Although in the impugned decision the Director-General purported to “set aside” the decision not to renew the complainant’s fixed-term contract, the fact remains that the complainant was separated from service without a valid reason and was not reinstated. It is perhaps this, above all, that justifies the significant amount of damages awarded to him by the Director-General. There is no other basis for awarding further damages for the invalid 2012 PACE appraisal report and the unlawful decision not to renew the complainant’s appointment.
Keywords:
fixed-term; formal flaw; loss of opportunity; material damages; non-renewal of contract; performance report; procedural flaw;
Judgment 4228
129th Session, 2020
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject his request for compensation for loss of earnings allegedly caused by a service-incurred injury.
Consideration 2
Extract:
The present complaint hinges primarily on a question of law: whether or not the complainant is entitled to compensation for loss of earnings under the FAO Manual Section 342 on Compensation for Death, Injury or Illness. The Tribunal is satisfied that the complainant is not entitled to compensation for loss of earnings; he is only entitled to the salary and allowances provided by his contract with the FAO plus the reimbursement of his medical expenses stemming from his service-incurred injury, which he received in full.
Keywords:
injury; loss of earnings; material damages; service-incurred;
Judgment 4207
129th Session, 2020
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the Director General’s decision to endorse the conclusion of the Office of Internal Oversight Services that it was unable to make a conclusive determination on her sexual harassment claim and to reject her related request for damages.
Consideration 22
Extract:
As the complainant has not provided information in support of her request for material damages, this claim for relief will be dismissed.
Keywords:
material damages;
Judgment 4170
128th Session, 2019
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her performance reports for the 2010-2011 biennium and the decisions to defer her within-grade salary increment until 1 February 2012, to withhold that increment on that date and to not renew her fixed-term appointment for unsatisfactory service.
Consideration 15
Extract:
[T]he complainant has no grounds for claiming the payment of all the emoluments which she would have received until she reached retirement age, as the renewal of her fixed-term appointment would by no means have guaranteed that the Organization would have continued to employ her until the end of her career.
However, in this case, the Tribunal finds that the material injury suffered by the complainant shall be fairly redressed by ordering UNESCO to pay her the equivalent of the salary and allowances of all kinds which she would have received had her contract been renewed for a period of two years starting from 3 January 2013, under the same conditions as previously applied, net of the amount she received in lieu of notice and of any occupational earnings she may have received during that period. The Organization shall also pay her the equivalent of the pension contributions that it would have had to pay during the same period. All these amounts shall bear interest at the rate of 5 per cent per annum as from the date on which they fell due until the date of their payment.
Keywords:
material damages;
Judgment 4138
128th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decision to apply to their salaries the post adjustment multiplier determined by the ICSC on the basis of its 2016 cost-of-living survey for Geneva, with the result that their salaries were reduced.
Consideration 50
Extract:
It is necessary to consider what is the appropriate relief. In a number of cases in which the complainants have established that a decision to adjust salaries was unlawful, the order of the Tribunal has been to set aside the impugned decision and to remit the matter to the organization to consider the matter afresh and make a new decision (see, for example, Judgments 1821, consideration 11, and 3324, considerations 22 and 23). However, in the present case, the unlawfulness of the administration’s decision flowed from the unlawfulness of the decision of the ICSC. The decisions to implement ICSC/CIRC/PAC/518 and ICSC/CIRC/PAC/522 are unlawful. WIPO cannot, by a new decision, render the ICSC’s decisions lawful. Accordingly, WIPO should be ordered to reinstate the applicable PAM in place immediately before the decision to reduce salaries was taken and pay the complainants the salary lost between then and the time the PAM is reinstated, together with interest.
Reference(s)
ILOAT Judgment(s): 1821, 3324
Keywords:
compensation; icsc decision; material damages; post adjustment;
Judgment 4137
128th Session, 2019
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decision to apply to their salaries the post adjustment multiplier determined by the ICSC on the basis of its 2016 cost-of-living survey for Geneva, with the result that their salaries were reduced.
Consideration 42
Extract:
It is necessary to consider what is the appropriate relief. In a number of cases in which the complainants have established that a decision to adjust salaries was unlawful, the order of the Tribunal has been to set aside the impugned decision and to remit the matter to the organization to consider the matter afresh and make a new decision (see, for example, Judgments 1821, consideration 11, and 3324, considerations 22 and 23). However, in the present case, the unlawfulness of the administration’s decision flowed from the unlawfulness of the decision of the ICSC. The decisions to implement ICSC/CIRC/PAC/518 and ICSC/CIRC/PAC/522 are unlawful. The ITU cannot, by a new decision, render the ICSC’s decisions lawful. Accordingly, the ITU should be ordered to reinstate the applicable PAM in place immediately before the decision to reduce salaries was taken and pay the complainants and interveners the salary lost between then and the time the PAM is reinstated, together with interest.
Reference(s)
ILOAT Judgment(s): 1821, 3324
Keywords:
compensation; icsc decision; material damages; post adjustment;
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