Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
The Ä¢¹½ÊÓƵAT held that the Ä¢¹½ÊÓƵRWA DT correctly exercised its broad discretion with regard to its case management in concluding that the record before it was sufficient to render a decision without an oral hearing. It concluded that the Appellant has not presented any grounds as to why an oral hearing would have been necessary and thus did not show that the Ä¢¹½ÊÓƵRWA DT exercised its discretion in such manner as to affect the outcome of the case, as required by Article 2(1)(d) of the Appeals Tribunal Statute.
With regard to the Appellant¡¯s argument that the non-selection decision was unlawful because the signatures of two members of the interview panel were missing on the interview panel¡¯s recommendation, the Ä¢¹½ÊÓƵAT found that it must be rejected because it was raised for the first time on appeal. Indeed, the Ä¢¹½ÊÓƵAT held that even considering that the Appellant took notice of the Commissioner-General¡¯s reply and its annexes only on 4 May 2022, he would have had ample time to file a request for leave to file observations and to raise this argument before the Ä¢¹½ÊÓƵRWA DT issued the impugned Judgment on 29 May 2022, but he decided not to do so. It follows that he is estopped from raising it for the first time on appeal.
Moreover, the Ä¢¹½ÊÓƵAT concluded that even if the Appellant were permitted to introduce this argument at this stage of the proceedings, it must fail because pursuant to paragraph 69 of Area Staff Personnel Directive No. PD/A/4/ Part II/Rev. 7/Section I, interview panels must consist of at least three and normally up to five members. However, the Ä¢¹½ÊÓƵAT found that fact that the signatures of the Area Education Officer and of the Chief Area Officer were missing on the interview panel¡¯s recommendation did not mean that they were not part of the interview panel or that they did not agree with its recommendation. Therefore, it concluded that the Ä¢¹½ÊÓƵRWA DT did not err in concluding that the Appellant¡¯s candidacy was given full and fair consideration and that his non-selection for the roster was based on objective and impersonal criterion, with no indication of bias, conflict of interest or discrimination.
The Ä¢¹½ÊÓƵAT dismissed the appeal and affirmed Judgment No. Ä¢¹½ÊÓƵRWA/DT/2022/018.
Decision Contested or Judgment/Order Appealed
The Appellant, a School Counsellor at Nuzha Preparatory Boys¡¯ School No. 2, contested the decision of the Ä¢¹½ÊÓƵRWA not to select him for the 2021-2022 roster created for the posts of School Principal for All Areas, Grade 15. In its Judgment No. Ä¢¹½ÊÓƵRWA/DT/2022/018, the Ä¢¹½ÊÓƵRWA DT denied the Appellant¡¯s request for an oral hearing, concluded that his candidacy was given full and fair consideration and dismissed his application.
Legal Principle(s)
The Appeals Tribunal has consistently emphasized the broad discretion of the first instance tribunal with regard to its case management. It follows that a party, in order to be successful on appeal, not only has to assert and show that the Ä¢¹½ÊÓƵDT committed an error in procedure in denying his or her request for an oral hearing but also that this error affected the decision on the case.
A party should not be permitted to introduce new arguments for the first time on appeal. It is not reasonable for a party to assert that the first instance tribunal erred on questions of fact or law with respect to allegations which were not raised before the first instance tribunal for its consideration.
Pursuant to paragraphs 10 to 12 of General Staff Circular No. 09/2021 (Ä¢¹½ÊÓƵRWA Dispute Tribunal Practice Direction No. 02: Filing of Motions, Responses and Observations), observations (i.e. Applicant¡¯s submissions in response to the Respondent¡¯s reply) may only be filed after submitting a request for leave to file observations to the Ä¢¹½ÊÓƵRWA Dispute Tribunal.
Pursuant to paragraph 69 of Area Staff Personnel Directive No. PD/A/4/Part II/ Rev. 7/Section I, interview panels must consist of at least three and normally up to five members.