2013-Ģ��ƵAT-360

Ģ��ƵAT Held or Ģ��ƵDT Pronouncements

Ģ��ƵAT considered an appeal of judgment No. Ģ��ƵDT/2012/131. Ģ��ƵAT noted that Mr McIlwraith raised claims substantially similar to, if not identical to, those raised by the other International Criminal Tribunal for the former Yugoslavia (ICTY) staff members who appealed judgment No. Ģ��ƵDT/2012/131, as well as the staff members who appealed judgment No. Ģ��ƵDT/2012/129 and judgment No. Ģ��ƵDT/2012/130. Ģ��ƵAT held that, since it had rescinded the Ģ��ƵDT judgment against which the staff members appealed, the majority of their claims were rendered moot. Ģ��ƵAT held that it's reasoning in Malmstr?m et al. (judgment No. 2013-Ģ��ƵAT-357) applied to the Appellant��s claims, that Ģ��ƵDT erred in awarding compensation in lieu that was too low, and that the claims were moot for the reasons set form in paragraph 76 of Malmstr?m et al., which Ģ��ƵAT incorporated by reference. On the issue of non-pecuniary or moral damages for the fundamental procedural violation of his rights during the conversion process, Ģ��ƵAT adopted paragraphs 78-82 of Malmstr?m et al, which it applied, mutatis mutandis to the Appellant��s case, where Ģ��ƵAT found that the substantive due process breaches were of such a fundamental nature, that they gave rise to an award of moral damages, by virtue of the harm to the employee and awarded compensation in the amount of 3,000 Euros to each of the staff members. Ģ��ƵAT awarded the Appellant compensation in the amount of 3,000 Euros.

Decision Contested or Judgment/Order Appealed

The Applicant contested the decision not to convert his fixed-term appointment to a permanent appointment. In judgment No. Ģ��ƵDT/ 2012/131 (Ademagic et al. ), Ģ��ƵDT found that the Secretary-General had made a procedural error during the consideration of the Applicants for conversion, and ordered that the decisions not to convert them be rescinded or, alternatively, in lieu compensation in the amount of 2,000 Euros, plus interest, be paid to each staff member.

Legal Principle(s)

Damages for moral injury may arise from a breach of the employee��s substantive entitlements arising from his or her contract of employment and/or from a breach of the procedural due process entitlements therein guaranteed (be they designated in the Staff Regulations and Rules or rising from the principles of natural justice); where the breach is of a fundamental nature, the breach may of itself give rise to an award of moral damages, not in any punitive sense for the fact of the breach having occurred, but rather by virtue of the harm to the employee.

Outcome

Appeal granted in part

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The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.

Applicants/Appellants

McIlwraith

Entity

Case Number(s)

Tribunal

Registry

Date of Judgement