Material damages (693, 665,-666)
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Keywords: Material damages
Total judgments found: 159
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Judgment 4097
127th Session, 2019
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decisions to end her participation in the reassignment process and to terminate her fixed-term appointment further to the abolition of her post.
Consideration 17
Extract:
[T]he complainant bears the evidentiary burden of establishing material damage (see, for example, Judgment 3778, consideration 4)[.]
Reference(s)
ILOAT Judgment(s): 3778
Keywords:
burden of proof; material damages;
Consideration 17
Extract:
[T]he complainant did lose a valuable opportunity to secure and remain in employment in WHO because of the too narrowly focused reassignment process. While the value of that loss is difficult to quantify, it is nonetheless of value. [...]
Keywords:
loss of opportunity; material damages;
Judgment 4095
127th Session, 2019
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to abolish his post and to terminate his fixed-term contract.
Consideration 3
Extract:
[...] In some cases the discrepancy between the amount claimed in an internal appeal and the amount claimed in the proceedings before the Tribunal sustains a conclusion that what is claimed in the latter proceedings is a new claim and irreceivable (see, for example, Judgment 3997, considerations 3 to 6). In other cases it might be difficult to characterise the claim for a larger amount in the Tribunal as a new claim. Nonetheless, in the absence of an explanation for the increased amount, the Tribunal has set its face against a complainant pursuing the larger amount (see, for example, Judgment 3419, consideration 7).
Reference(s)
ILOAT Judgment(s): 3419, 3997
Keywords:
material damages; moral injury; new claim;
Judgment 4077
127th Session, 2019
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The UPU applies for interpretation and review of Judgment 3928 alleging errors of fact, inter alia, and asserts that it is impossible to give effect to the Tribunal’s order to reinstate the complainant. The complainant applies for execution of Judgment 3928.
Consideration 19
Extract:
With respect to the UPU’s request that the Tribunal rescind its decision with respect to the complainant’s reinstatement and award him material damages instead, there is no reviewable error that would allow the Tribunal to grant that request.
Keywords:
application for review; material damages; reinstatement;
Judgment 4069
127th Session, 2019
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the direct appointment of Mr D. and Mr A. to two D-2 level posts.
Consideration 8
Extract:
The complainant seeks an award of “actual damages, with full retroactivity, all additional salary, benefits, entitlements, including step increases and pension contributions, and any other emoluments he would have received had he been selected for either of said posts and been promoted to grade D2, from 8 July 2014 (the date of the first irregular direct appointment) through his statutory date of [...] retirement”. There is no basis for such an award which, in effect, would be material damages. Such an award cannot be made on a mere expectation that his application for either post might have been successful. However, he is entitled to 4,000 euros in moral damages for the violation of his right to compete for the posts.
Keywords:
material damages; moral injury; selection procedure;
Judgment 4062
127th Session, 2019
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to renew her fixed-term contract on the grounds of unsatisfactory performance.
Consideration 17
Extract:
The complainant, who is not asking to be reinstated within UNESCO, has however requested compensation for the material injury suffered as a result of the termination of her employment with the Organization.
In this regard, the 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 contract would by no means have guaranteed that the Organization would continue to employ her until the end of her career.
Keywords:
damages; fixed-term; material damages; non-renewal of contract;
Judgment 4058
127th Session, 2019
World Customs Organization (Customs Co-operation Council)
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his fixed-term appointment for serious misconduct.
Consideration 9
Extract:
The complainant is no longer working for the Organization. No order was sought by the complainant to remit the matter to the Organization to consider again whether the complainant was guilty of misconduct and, if found guilty, what sanction should be imposed in light of a finding of misconduct. Accordingly, no order remitting the matter will be made.
Keywords:
disciplinary measure; material damages;
Judgment 4047
126th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose on her with immediate effect the disciplinary measure of dismissal for serious misconduct.
Consideration 15
Extract:
No order for reinstatement should be made because if the charges are proved beyond reasonable doubt, a new decision may be made to dismiss the complainant. Depending on what findings are made about the complainant’s conduct by applying the appropriate standard of proof, dismissal might remain a proportionate response, and if it is, no issue of material damages would arise.
Keywords:
material damages; reinstatement;
Judgment 4004
126th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of his appeal against the abolition of his post and the termination of his fixed-term appointment, which was filed after he had accepted a mutually agreed separation.
Consideration 8
Extract:
The complainant seeks reinstatement, compensation for material and moral injury, and legal costs. The Tribunal is satisfied that reinstatement would raise practical difficulties because of the reorganization of the Registry and the time that has elapsed since the termination of his appointment. Therefore, the Tribunal finds it appropriate not to order reinstatement but it will award the complainant material damages in the amount of 180,000 euros, however deducting therefrom the 139,113.62 euros already paid to him. The Tribunal has taken into account all of the circumstances of the case in determining this amount, including the duration of the complainant’s contract, the income he would have earned at the ICC, but has also taken into account the income he could have earned in other employment and the possibility that in due course his employment could have been terminated lawfully. The ICC shall also pay the complainant moral damages which, in the particular circumstances of this case, including the fact that the complainant resiled from the Separation Agreement he had voluntarily entered, will be set at 3,000 euros.
Keywords:
material damages; moral injury; reinstatement;
Judgment 4001
126th Session, 2018
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to confirm the appointment of Ms S. to the post of Head of the Caribbean Section.
Consideration 20
Extract:
The Tribunal cannot grant the complainant reclassification at the P-4 level or appoint him to the contested post, as he has requested. The applicable provisions, Staff Regulations 4.8 and 4.9, confer no right upon any person to be directly appointed to a post with retroactive effect without going through the selection process which the Staff Regulations and Rules require. Neither is it within the purview of the Tribunal to reclassify the complainant’s post, as he has requested. There is no legal basis upon which the Tribunal may grant the complainant an award of material damages. However, although the complainant’s submissions do not establish material injury, the unlawfulness of the contested decisions did cause him moral injury, for which he will be awarded compensation in the amount of 20,000 Swiss francs.
Keywords:
material damages;
Judgment 3990
126th Session, 2018
ITER International Fusion Energy Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to terminate her fixed-term contract and to refuse to pay her the termination indemnity.
Consideration 14
Extract:
The complainant does not seek reinstatement, nor will it be ordered by the Tribunal. However, she is entitled to material damages, though in relation to some relevant considerations there is a dearth of evidence. The Tribunal’s assessment includes a consideration of the difference (on the pleas, the Organization does not contest there was a reduction in her earnings) between what she would have earned if her contract had not been terminated prematurely and the income she earned after taking up employment with the CEA some months later. Some allowance, however, should be made to the fact that the Organization may have been able, in due course, to lawfully terminate the complainant’s contract [...]. Another factor in the mix when assessing material damages is the complainant’s lost opportunity to secure further employment with the Organization after the expiry of her contract [...] and the loss of potential pension benefits.
Keywords:
material damages;
Judgment 3984
126th Session, 2018
African, Caribbean and Pacific Group of States
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The ACP Group has filed an application for review and interpretation of Judgment 3845.
Consideration 12
Extract:
[T]he ACP Group has no right whatsoever to claim, as it apparently seeks to do in its application, that in the event of that professional earnings amount to more than the salary and benefits due to the complainant, he should pay the organisation the difference, since such a claim plainly has no basis in law.
Keywords:
material damages;
Judgment 3970
125th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to prolong his service beyond the mandatory retirement age.
Considerations 11-12
Extract:
Although the complainant’s request for a prolongation of his service was dismissed on the basis of irrelevant grounds, it cannot be said with certainty that the request would not have been rejected by the Administrative Council for another reason – assuming that the President had submitted a proposal in the complainant’s favour – in view of the broad discretion exercised by that collective body in applying Article 54 of the Service Regulations to members of boards of appeal. Nevertheless, the complainant was indisputably deprived of a valuable opportunity to have his appointment prolonged, which was all the more significant in view of the Selection Committee’s proposal in his favour, and the loss of that opportunity warrants redress.
In the light of these various considerations, the Tribunal finds, in the circumstances of the case, that the complainant must be awarded a sum equivalent to two years’ remuneration, calculated on the basis of his final net salary before he left the EPO, less the amount of payments from various retirement pensions which he received in respect of the 24 months following his departure and any professional earnings during that same period.
As this lump sum must be regarded as compensation for all material injury suffered by the complainant as a result of the refusal to prolong his service, there is no reason to grant the complainant’s claims for a recalculation of his net pension benefit from the pension scheme for permanent employees of the Office.
Keywords:
age limit; loss of opportunity; material damages;
Considerations 13-14
Extract:
The complainant also claims compensation for the material injury arising from the fact that he was informed too late of the dismissal of his request for a prolongation of his service to be able to cancel in a timely fashion the lease on his accommodation and the related telephone and Internet subscriptions.
It must be observed in this respect that the procedure for considering requests by members of boards of appeal for a prolongation of service prescribed by Communiqué No. 2/08 of 11 July 2008 does not specify an exact time limit in which the competent authority must decide on a request submitted to it. Moreover, since such a request can be granted only on the condition that a prolongation of service is in the interest of the service, a decision can logically be taken only on a date sufficiently close to that on which the employee concerned will reach normal retirement age for that authority to be in a position to make an informed assessment of the advisability of such a prolongation in the light of that criterion (see [...] Judgment 3214, under 16).
Nevertheless, it is incumbent on the Organisation, in view of its duty of care towards its employees, to ensure that members of boards of appeal who submit requests for their service to be prolonged are informed of the outcome thereof sufficiently far in advance to enable them to make adequate arrangements for their personal lives after they attain normal retirement age.
[...]
In this case, the complainant was not informed of the rejection of his request until 21 October 2014, 40 days before he was retired on 30 November.
The evidence makes it plain that this did not allow him to terminate the lease for his accommodation and the abovementioned subscriptions in a timely fashion. [...] The EPO will therefore be ordered to pay the complainant the sum, in the duly substantiated amount of 2,005 euros, which he claims as compensation for the material injury which he suffered under this head.
Reference(s)
ILOAT Judgment(s): 3214
Keywords:
age limit; delay; extension beyond retirement age; material damages; refusal;
Judgment 3962
125th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to downgrade her, reassign her to another position and place her on an additional period of probation.
Consideration 16
Extract:
The Tribunal is not satisfied that material damages should be awarded. A basis for awarding them has not been established by the complainant. It is quite possible that a decision properly made would have had the same result, at least financially, for the complainant. It would simply be speculation to conclude that the result, financially, would have been different.
Keywords:
material damages;
Judgment 3942
125th Session, 2018
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to reinstate her in her former position.
Consideration 12
Extract:
The complainant seeks reinstatement but, given the effluxion of time, such an order would be inappropriate. However, in addition to the compensation already paid, the complainant is entitled to material damages for the lost opportunity of future and further employment beyond 12 months with UNESCO, which the Tribunal assesses in the sum of 40,000 dollars.
Keywords:
loss of opportunity; material damages; reinstatement;
Judgment 3929
125th Session, 2018
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to abolish her post and to terminate her appointment while she was on sick leave.
Consideration 15
Extract:
In light of the above considerations, the decision to abolish the complainant’s post was unlawful and must be set aside. The consequent termination of appointment, based on the unlawful abolition of her post, must also be set aside. Considering the difficulties raised by the time elapsed and the subsequent restructuring of the UPU, the Tribunal shall not order reinstatement. Having regard especially to the complainant’s age, qualifications, experience, and the length of time spent in the UPU’s service, it is reasonable to award her material damages for the loss of opportunity to continue working with the UPU until her retirement age in an amount equal to 30 months’ gross salary with reference to her last month’s gross salary. The UPU must also pay the complainant the equivalent of the employer’s contribution that would have been due to the Provident Fund during those 30 months.
The complainant is also entitled to an award of moral damages, including for the failure to properly assess her illness, which the Tribunal will set at 30,000 Swiss francs.
Keywords:
material damages; moral injury; permanent appointment; reinstatement;
Judgment 3922
125th Session, 2018
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to offer her a three-month renewal of her contract and to reject the claims she made with respect to her performance evaluation for 2012, the reclassification of her post, the length of her last contract and her allegations of harassment, retaliation and intimidation.
Consideration 26
Extract:
Regarding the complainant’s request for reinstatement, it was stated, in Judgment 3353, consideration 35, for example, that this will be ordered only in exceptional cases. Inasmuch as the complainant’s post no longer exists, that request is not practicable. However, she will be awarded, by way of material damages, the amount of 40,000 Swiss francs, additional to the amount which the Fund awarded her ex aequo et bono, for the loss of the valuable opportunity to have had her contract renewed.
Reference(s)
ILOAT Judgment(s): 3353
Keywords:
material damages; reinstatement;
Judgment 3918
125th Session, 2018
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his continuing appointment pursuant to the abolition of his post.
Consideration 5
Extract:
[T]he Director-General accepted in her decision of 17 June 2015 that the complainant had lost an opportunity to be reassigned to another position within the Organization because of a failure, in the reassignment process, to consider the complainant for one of two specified positions. This is not contested by WHO in its reply. The Tribunal’s case law establishes that, in such circumstances, a complainant is entitled to material damages (see, for example, Judgments 3756, consideration 14, 3755, consideration 20, 3754, consideration 21, 3753, considerations 15 and 17, and 3752, consideration 17). [...] At the time of the complainant’s termination of appointment, he had approximately five years remaining employment under his continuing appointment, was 55 years old and had served as an official of WHO for a little over 30 years. These factors influence the assessment of the material damages, particularly the fact that the complainant was some considerable time off retiring. The Tribunal assesses the material damages for this lost opportunity in the sum of 80,000 United States dollars.
Reference(s)
ILOAT Judgment(s): 3752, 3753, 3754, 3755, 3756
Keywords:
abolition of post; loss of opportunity; material damages; termination of employment;
Judgment 3908
125th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to abolish his post and terminate his appointment.
Consideration 21
Extract:
The complainant’s appointment, but for the abolition of his post, was due to expire on 13 March 2017. In those circumstances it is inappropriate to order the complainant’s reinstatement. Nonetheless he is entitled to moral and material damages for the ICC’s failure in its duty of care towards him to take adequate steps to find him a new position on the abolition of his existing position and unlawfully terminating his employment.
Keywords:
fixed-term; material damages; reinstatement;
Judgment 3907
125th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to abolish her post and terminate her fixed-term appointment.
Consideration 29
Extract:
The Tribunal will award the complainant material damages in the amount of 220,000 euros, less the amount paid to her as a termination indemnity. The Tribunal has taken into account all of the circumstances of the case in determining this amount, including the duration of the complainant’s contract, the income she would have earned at the ICC, but has also taken into account the income she could have earned in other employment and the possibility that in due course her employment could have been terminated lawfully.
Keywords:
material damages;
Judgment 3871
124th Session, 2017
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges WHO’s refusal to reinstate him after the decision to dismiss him was set aside.
Consideration 15
Extract:
Having regard in particular to the nature and duration of the appointment which the complainant formerly held, the Tribunal will order WHO to reinstate him, as far as possible, as from 8 March 2010, the date on which his dismissal took effect, with all the legal consequences that this entails.
If, however, WHO considers, in view of its staff complement and the availability of budgetary funds, that reinstatement is impossible, it will have to pay the complainant damages for the material injury caused by his unlawful removal from his post.
Keywords:
material damages; reinstatement;
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