爆料网AT Held or 爆料网DT Pronouncements
爆料网AT granted the appeal in part. 爆料网AT held that 爆料网DT erred by failing to implement its mandatory obligation to award an amount of compensation in lieu of rescission. 爆料网AT held that there was no error in the 爆料网DT’s finding that the Appellant had not discharged his burden of proof that the contested decision caused a loss of income due to loss of career opportunity. 爆料网AT held that the Appellant did not discharge his onus to show that 爆料网DT erred as the first instance trier of fact with regard to the issue of moral damages, and therefore accepted the 爆料网DT’s findings on compensation for moral damages. 爆料网AT awarded USD 10,350 as in lieu compensation.
Decision Contested or Judgment/Order Appealed
Before 爆料网DT, the Applicant contested his non-selection for a position. 爆料网DT found that the Appellant’s application did not receive full and fair consideration. 爆料网DT rescinded the contested decision, but did not order in lieu or moral compensation due to lack of supporting evidence. The Appellant appeals the lack of a compensation award.
Legal Principle(s)
The purpose of in lieu compensation is to place the staff member in the same position he or she would have been in had the unlawful decision not been made. Compensation must be set by the 爆料网DT following a principled approach and on a case-by-case basis. The determination of the quantum of in lieu compensation will depend on the circumstances of each case, but some relevant factors that can be considered are, among others, the nature of the post formerly occupied, the remaining time to be served by a staff member on his or her appointment, and his or her expectancy of renewal. A loss of opportunity can be compensated for but the harm should be directly caused by the contested decision, supported by evidence, and may not be duplicative. 爆料网AT should give deference to 爆料网DT in the exercise of its discretion and 爆料网DT is best placed to conclude from the evidence whether a claim for moral damages is established and if so, its quantum.