Remedies for civil servants in appeal and complaint processes : Analysis of the MSPC Regulation on compensation for damages to appellants and complainants or take any other action in the interest of justice, B.E. 2565

Abstract

     Remedies for civil servants in the process of appeals and complaints are remedies for civil servants who have been affected by the illegal actions of their superiors and are remedies at the administrative level. Section 120 of the Civil Service Act, B.E. 2551, empowers the Merit Systems Protection Commission (MSPC) to issue regulations to provide remedies to appellants and complainants, which are referred to as the MSPC Regulations on Remedies for Damages to Appellants and Complainants or any other actions in the interest of justice, B.E. 2565. The regulations consist of general provisions, remedies for damages to appellants, and remedies for damages to complainants. The content of potentially compensable damages is divided into monetary damages and non-monetary damages.

     However, upon studying and analyzing this regulation in detail, it was found that although this regulation requires superiors to provide remedies to civil servants without having to wait for the court's final verdict, the remedial measures still rely on the measures that existed prior to the issuance of this regulation. The refunding of salaries, compensation, and monetary benefits is stipulated to be governed by the regulations of the Comptroller General’s Department, the Ministry of Finance regulations, the regulations of the Civil Service Commission, or the rules and procedures prescribed by the Civil Service Commission. Therefore, it is noted that the MSPC Regulations on Remedies for Damages to Appellants and Complainants or any other actions in the interest of justice, B.E. 2565, are regulations used to provide remedies for damages to appellants or complainants authorized by law at the statutory level. The Merit Systems Protection Commission should, therefore, establish criteria, content, and measures to fully remedy the appellant or the complainant and should not apply the existing rules. This is because the ultimate result would be that the entity issuing the rules or regulations in this matter would be the entity with the authority to prescribe measures to remedy the damages to the actual appellant or complainant, rather than the Merit Systems Protection Commission.

     The author suggests that, the main principle of redress for appellants and complainants must be full redress. The appellant who was illegally dismissed from government service should receive a full refund of his salary and benefits. However, it should be subject to an exception that must be deducted from the income that civil servants earn during the dismissal, and the MSPC Regulations should also have provisions regarding measures that are temporary measures to alleviate the adverse effects that may arise from the cancellation of selection results and appointment orders, which has a negative impact on bona fide third party, for example in the case where the results of the selection and appointment of civil servants are unlawful in the procedural part. The Merit Systems Protection Commission should have the option to instruct government agencies to reexamine the selection outcomes of civil servants once more through a legally sanctioned process, without necessitating the annulment of the selection results and appointment orders. This would allow for a thorough review of the selection results to determine whether they should remain unchanged. Ultimately, there may be no need to revoke the selection results and appointment orders at all. This approach would contribute to mitigating the impact on a bona fide third party, who has already been appointed.