UNDT/2017/096, Chacon Gomez
While the eventual payment of arrears put an end to the ongoing breach by the Administration, it did not erase the failure to pay the salary when due, and in due amounts, nor the damage that would have been occasioned by the lack of timely payment during the period of two years. The Tribunal found that the duration of the breach and its continuing character was, by UNDT experience, extreme. This was combined with the obscurity of its cause, i.e., “technical problem with funding” which remained unexplained. Reasonably, a problem with funding for the position should have prevented the deployment in the first place or should have been solved earlier. No explanation was given as to why it took two years and the proceedings before the UNDT to sort out the payments. Lack of an apparent rational reason did not help coping with the delay and aggravated the sense of frustration and uncertainty and was only minimally mitigated by the fact that, admittedly, many staff in the administration acted in good faith and attempted to assist the Applicant. The Tribunal further found that, notwithstanding that the Applicant received certain payments during the period of the delay, a failure to pay the regular salary, a fundamental source of staff member’s income, was particularly onerous. The Tribunal was persuaded that the Applicant could not be certain whether she would receive the next salary payment or not and continuously had to restrain herself from spending on anything other than strictly necessary to be able to cope if the next month’s salary did not arrive, including the way of using her Rest and Recuperation.
The Applicant challenged the decision by “the Administration to refuse to pay [her] exact salary and associated entitlements for the period September 2015 to date.” The Respondent conceded liability for unpaid salary and allowances with interest for the delay.
The Organization has an obligation to pay the corresponding salary to each staff member for the work performed. It is the obvious primary duty of any employer towards its employees. This finding is supported by the fact that the salary rate is one of the very few elements of the conditions of service specified in the United Nations letters of appointment (see para. (a)(v) of Annex II to the Staff Regulation), and the determination of the salary scales and components is the subject of numerous staff regulations and rules (notably, but not limited to, Annex 1 to the Staff Regulations). Although there is no specific provision setting the interval of salary accrual and payment, there is a constant practice since the Organization’s inception to pay salaries monthly. As such, it is an implied condition of contract resulting from the practices of the Organization.
The Applicant was awarded USD6,000 as moral damages. All other pleas were dismissed.