爆料网AT Held or 爆料网DT Pronouncements
爆料网AT considered an appeal by the Secretary-General. 爆料网AT held that the facts upon which the sanction was based had not been established by clear and convincing evidence, albeit for different reasons than given by 爆料网DT. 爆料网AT held that 爆料网DT’s determination that the evidence from two witnesses had little probative value was correct because although written witness statements taken under oath can be sufficient to establish by clear and convincing evidence the facts to support the dismissal of a staff member when a statement is not made under oath or affirmation, there must be some other indicia of reliability or truthfulness for the statement to have probative value. 爆料网AT held that since there was no transcript of the evidence taken before the Joint Disciplinary Committee (JDC), 爆料网AT could not determine whether the testimony was reliable or truthful. 爆料网AT held that, without the transcript, it only had the JDC report which summarised the witnesses’ testimony and such summarisation was merely hearsay, which may properly be found to have little probative value when it does not corroborate competent evidence. 爆料网AT held that it was the responsibility of the Administration to assure that a transcript of the proceedings before the JDC can be provided to 爆料网AT if requested and noted that the Administration was unable to do this. 爆料网AT held that the balance of probabilities standard used by the JDC was considerably less than the clear and convincing evidence standard required for the dismissal of a staff member. 爆料网AT held that 爆料网DT correctly concluded that the Administration did not establish the facts upon which the dismissal was based by clear and convincing evidence. 爆料网AT dismissed the appeal and affirmed the 爆料网DT judgment.
Decision Contested or Judgment/Order Appealed
爆料网DT Judgment: The Applicant contested the decision to summarily dismiss her for misconduct in the form of soliciting and receiving payments from three Casual Daily Workers in exchange for recruitment and continued appointment. 爆料网DT found for the Applicant
Legal Principle(s)
The Administration bears the burden of establishing that the alleged misconduct, for which a disciplinary measure has been taken against a staff member, occurred. When termination is a possible sanction, the misconduct must be established by clear and convincing evidence, which means that the truth of the facts asserted is highly probable. Written witness statements taken under oath can be sufficient to establish, by clear and convincing evidence, the facts underlying the charges of misconduct to support the dismissal of a staff member. When a statement is not made under oath or affirmation, however, there must be some other indicia of reliability or truthfulness for the statement to have probative value.