LEGAL TIP OF THE MONTH
Internal Appeals :
Do Not Kiss Your Monetary Damages Goodbye
The awards handed out by the ILO Administrative
Tribunal in successful appeals are in
many cases small. In some cases, it even
finds an egregious breach of the staff member’s
rights, but when you read the amount
awarded in compensation, you are left
scratching your head. Sometimes, the fault lies
with the staff member who did not ask for
the damages during the internal appeal. The
Tribunal follows a basic principle of law:
Waiver – if you have not made the claim for
moral damages (or costs, etc.) during the internal
appeal, the Tribunal will not award
them even if you are successful on the merits.
You have so to speak kissed your right to
full compensation goodbye.
It is therefore important for the staff association/union to remind its staff members during the internal appeal to claim compensation
that is recognized by the Tribunal, including
material damages which consists of the
salary, benefits and other emoluments the
staff member lost because of the adverse decision; interest on the material damages; consequential damages consisting of costs of
maintaining health insurance (one example); moral damages for the injury to the staff
member’s dignity and reputation caused by
the adverse decision; punitive or exemplary
damages if the facts show that the organization
acted recklessly ; and the costs for any legal
assistance, translation services, etc. that
were incurred in prosecuting the internal appeal.
The Tribunal will generally not grant
consequential damages, moral damages, interest,
punitive damages, or costs if they were not asked for in the internal appeal. In Judgment
No. 2538, the Tribunal held that since
“moral damages were made for the first time
when the complaint was filed with the Tribunal...
they have not been the subject of a final
administrative decision” and therefore
were rejected. It is important to ask for the
above elements of damages even if you think,
for whatever reason, you do not deserve
moral damages, especially since the Tribunal
will also require the former staff member to
offset any award by net earnings from other
employment.
With respect to moral damages, the Tribunal
normally awards between €5,000 and
€20,000 in most cases that are successful on
the merits. I handled a very egregious case of
mobbing/harassment against a P-4 staff member
at the CTBTO, for which the Tribunal
awarded €35,000 in moral damages (Judgment
2524). The Tribunal has not yet decided
that these type of injuries require meaningful
and adequate compensation.
Kindly provided to the UNSpecial by the Law
Office of LAURENCE D. FAUTH at www.unattorney.com
