Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
The Ä¢¹½ÊÓƵAT upheld the Ä¢¹½ÊÓƵRWA DT¡¯s determination of the former staff member¡¯s chances of selection for the position at one-fourth on alternative grounds. The Ä¢¹½ÊÓƵAT held that the Ä¢¹½ÊÓƵRWA DT appropriately considered the possibility that the Agency could have introduced additional candidates on an equivalency basis during a second review after the shortlisting phase. In particular, the Ä¢¹½ÊÓƵRWA DT held that, since the sufficient number of candidates for a competitive exercise was normally between three to five candidates per vacancy, it was reasonable to expect that the Agency would have brought more candidates to reach the average of that number, i.e., four candidates per vacant post of CAO.
The Ä¢¹½ÊÓƵAT found that the Ä¢¹½ÊÓƵDT erred by limiting the former staff member¡¯s compensation in lieu to one year, corresponding to the probationary period, when there was no evidence to suggest that he would have been separated from service for unsatisfactory performance after the probationary period. The Ä¢¹½ÊÓƵAT increased the amount of compensation in lieu to cover the duration of two (out of three) years of the contract of CAO.
The Ä¢¹½ÊÓƵAT also found that the Ä¢¹½ÊÓƵRWA DT failed to exercise jurisdiction vested in it by not addressing the former staff member¡¯s claim for retirement benefits. The Ä¢¹½ÊÓƵAT held that the former staff member was entitled to receive one-fourth of the retirement benefits for a period of two years as part of the compensation in lieu.
The Ä¢¹½ÊÓƵAT granted the appeal and modified Judgment No. Ä¢¹½ÊÓƵRWA/DT/2023/046. It increased the amount of compensation in lieu to JOD 2,988, representing one-fourth of the net base salary difference over a two-year period and granted the former staff member¡¯s claim for retirement benefits, as part of the compensation in lieu, in the amount of JOD 358.56.
Decision Contested or Judgment/Order Appealed
A former staff member with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (Ä¢¹½ÊÓƵRWA) contested the decision of the Agency not to select him for the position of Chief Area Office (CAO), Grade 20, All Areas.
In its Judgment No. Ä¢¹½ÊÓƵRWA/DT/2023/046, the Ä¢¹½ÊÓƵRWA DT granted the former staff member¡¯s application, rescinded the contested decision, fixed the alternative compensation in lieu of rescission at JOD 1,494 and rejected all his other claims.
Former staff member appealed.
Legal Principle(s)
Administrative manuals and guidelines are not intended to create substantive rights or obligations. While they may be a helpful interpretative tool, and/or useful in understanding administrative practice, they are not binding and cannot modify or supplement the rights and obligations specifically provided for under formal regulations, rules, directives, and policies.
Compensation in lieu represents the economic or pecuniary value of rescission and its purpose is to put the staff member in the same position as if the contested decision had not been taken.
Calculating compensation in lieu is not an exact science. It is calculated by appropriately assessing the financial entitlements that would normally result from retrospective reinstatement. Its determination is context-specific, and the Ä¢¹½ÊÓƵAT gives discretion to the first instance tribunal, with which it will not lightly interfere. However, that discretion is not unfettered; the tribunal must show that it had adopted a principled approach, leading to a reasoned award.
Compensation in lieu entails a calculation of probabilities, as the staff member may not serve out the full duration of their contract for several reasons, including the abolition of the post, illness, resignation or unsatisfactory performance following the probationary period. However, the first instance tribunal should not limit the estimated duration of service in all cases to a period equivalent to the probationary period, unless the record suggests that the candidate¡¯s service would possibly be terminated for unsatisfactory service following the end of the probationary period.
The first instance tribunal is not required to address each and every claim made by an applicant, especially when such claim lacks merit.