Judgment No. 3942
1. UNESCO shall pay the complainant moral damages in the amount of 60,000 United States dollars.
2. UNESCO shall pay the complainant material damages in the amount of 40,000 United States dollars.
3. UNESCO shall pay the complainant 10,000 United States dollars in costs.
4. All other claims are dismissed.
The complainant challenges the decision not to reinstate her in her former position.
complaint allowed; reinstatement
In the complaint form filed with the Tribunal, the complainant identifies this opinion and recommendation of the Appeals Board, having regard to the date of decision identified on the form, as the impugned decision. [...] It appears, from the material before the Tribunal, that no decision was made by the Director-General following, and based upon, the Appeals Board report in the period of a little over three months between the issuing of the Appeals Board report and the filing of the complaint in the Tribunal. However, UNESCO does not challenge the receivability of the complaint in these proceedings, which can be taken to be an agreement that the matter can be dealt with by the Tribunal.
absence of final decision; receivability of the complaint; impugned decision; complaint form
A defendant organisation in proceedings before the Tribunal should not ordinarily be permitted to maintain a factual and legal position which is diametrically opposite to the position earlier accepted to be the case and foundational to the impugned decision which the organisation is defending, unless it involves a concession, in the proceedings before the Tribunal, favourable to the complainant.
reply; impugned decision
Considerations 8 and 9
The Tribunal accepts [...] that the executive head of an organisation has a discretionary power to review an earlier decision and can, for good reason and acting bone fide, vary or rescind that decision (see, for example, Judgment 618, consideration 5, though compare Judgment 3871, consideration 3), unless the earlier decision is immune from revision either because of the effect of normative legal documents within the organisation such as staff rules or regulations, or because of the application of principles found in the Tribunal’s case law such as promissory estoppel (see, for example, Judgment 1781, considerations 12 to 14). But the rationale for the reversal decision, in the present case, does not withstand close scrutiny. [...]
It is true that the remedy chosen in the decision [...] certainly compensated the complainant, financially, for the direct effect of the unlawful non-renewal of her contract as an act of retaliation. However, that decision fails to recognise that bare financial compensation for lost income arising directly from non-renewal of the complainant’s contract for an unlawful reason might be an insufficient remedy. This failure is an error of law involving a failure to take into account relevant considerations.
withdrawal of decision; moral injury; non-renewal of contract; estoppel
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.
reinstatement; loss of opportunity; material damages