Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
Ä¢¹½ÊÓƵRWA DT considered an appeal by the Commissioner-General. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵRWA DT did not err in fact or in law such as to vitiate its judgment, except with regards to the award of compensation. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵRWA DT did not overstep its role to judicially review the administrative decision imposing a disciplinary measure on the staff member and terminating his appointment. Ä¢¹½ÊÓƵAT held that the Administration had failed to demonstrate that the staff member had committed the serious misconduct he had been charged with, because not only did the proceedings fail to provide him with an adequate opportunity to defend himself breaching his right to due process, but also there was not enough evidence supporting the accusation. Ä¢¹½ÊÓƵAT held that the administrative investigation was flawed because it did not rely on trustworthy evidence since the second investigation report appeared to be based mostly on hearsay or inconsistent testimonies not subject to cross-examination. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵRWA DT had correctly concluded that there was a breach of due process rights. Ä¢¹½ÊÓƵAT held that the illegality of the termination stemmed from two different sources and the rescission of the administrative decision ordered by Ä¢¹½ÊÓƵRWA DT had to be affirmed. Ä¢¹½ÊÓƵAT held that the compensation in lieu of reinstatement, established at four years¡¯ net base salary, had to be partially vacated because Ä¢¹½ÊÓƵRWA DT had not demonstrated sufficient reason to exceed the average statutory limit of two years. Ä¢¹½ÊÓƵAT held that the compensation for moral damages seemed adequate, given the well-founded reasoning of Ä¢¹½ÊÓƵRWA DT about the important negative consequences created by a serious sanction as the one illegally suffered by this staff member. Ä¢¹½ÊÓƵAT upheld the appeal in part, affirmed the Ä¢¹½ÊÓƵRWA DT judgment in part and reduced the compensation in lieu of reinstatement to two years¡¯ net base salary.
Decision Contested or Judgment/Order Appealed
Ä¢¹½ÊÓƵRWA DT judgment: The Applicant contested the decision to terminate his appointment for misconduct. Ä¢¹½ÊÓƵRWA DT found Ä¢¹½ÊÓƵRWA¡¯s reply, more than two years after the applicable deadline without leave to file a late reply or participate in the proceedings, receivable since it was in the interests of justice for Ä¢¹½ÊÓƵRWA to be permitted to participate in the case. Ä¢¹½ÊÓƵRWA DT rescinded the impugned decision, ordering the Applicant to be retroactively reinstated and then offered the early voluntary retirement he had requested, with related rights and entitlements, or, in the alternative, compensation in the amount of four years¡¯ net base salary. Ä¢¹½ÊÓƵRWA DT also awarded moral damages of USD 20,000.
Legal Principle(s)
An appeal before Ä¢¹½ÊÓƵAT does not constitute an opportunity to retry a case: the function of Ä¢¹½ÊÓƵAT involves the task of determining if the Dispute Tribunal has made any errors of fact or law, exceeded its jurisdiction or competence, or failed to exercise its jurisdiction. Judicial review of a disciplinary case requires the Dispute Tribunal to consider the evidence adduced and the procedures utilised during the course of the investigation.