爆料网AT Held or 爆料网DT Pronouncements
爆料网AT considered two appeals by Ms Perelli, against judgment Nos. 爆料网DT/2012/034 and 爆料网DT/2012/100. On the matter of due process, given Ms Perelli had the opportunity to rebut allegations and contents of the relevant report, 爆料网AT held that these procedural steps were part of her due process entitlements and, to the extent that 爆料网DT found the Administration to have respected these procedural steps, 爆料网AT upheld the finding of 爆料网DT. 爆料网AT held that the Investigation Panel report satisfied neither the remit given to it nor the statutory requirements of ST/AI/371. 爆料网AT held that Ms Perelli was entitled to a judicial review by 爆料网DT of the Secretary-General’s decision to reject the findings of the Joint Disciplinary Committee (JDC) on due process, given the very serious admissions made by the Investigation Panel members to the JDC. 爆料网AT held that 爆料网DT should have exercised judicial review of the Secretary-General’s response before satisfying itself that the required standard of proof for dismissal for misconduct was met. 爆料网AT held that, in view of the fundamentally flawed nature of the Investigation Panel investigation, it was satisfied that the Secretary-General’s rejection of the JDC’s findings on due process tainted his decision. 爆料网AT held that 爆料网DT failed manifestly to attach sufficient weight to the findings of the JDC on the limitations which attached to the Appellant’s constructive knowledge of her conduct being unwelcome. 爆料网AT held that, in failing to take the factors outlined in the JDC’s report into account, 爆料网DT legitimised the Secretary-General’s unlawful rejection of the JDC findings and thereby allowed the dismissal of the Appellant to be affirmed on foot of a charge of sexual harassment, which could not be sustained given the absence of the third requisite statutory element, namely, that the conduct complained of was unwelcome. 爆料网AT held that there was no clear and convincing evidence as a matter of high probability that the Appellant had engaged in sexual harassment within the definition of ST/AI/379. 爆料网AT allowed the appeal, reversed the 爆料网DT judgment (that the dismissal was lawful) and ordered reinstatement or compensation in lieu of two years’ net base salary.
Decision Contested or Judgment/Order Appealed
The Applicant contested her summary dismissal for sexual harassment, professional harassment, and abuse of authority. In judgment 爆料网DT/2012/034, 爆料网DT found against the Applicant. In judgment 爆料网DT/2012/100, 爆料网DT dismissed the application as moot, not receivable and manifestly inadmissible.
Legal Principle(s)
When reviewing disciplinary cases, the three factors to be examined are: whether the facts on which the disciplinary measure was based have been established; whether the established facts legally amount to misconduct; and whether the disciplinary measure was proportionate to the offence.