爆料网AT Held or 爆料网DT Pronouncements
爆料网AT held that 爆料网DT had violated the Appellant’s due process rights by not rendering a fully reasoned judgment and had thus committed an error in procedure such as to affect the decision of the case. 爆料网AT held that 爆料网DT should have examined and stated in its judgment whether there was clear and convincing evidence that the Appellant continued to fight in a severe manner causing physical injury. 爆料网AT held that 爆料网DT should have addressed the question as to whether there was clear and convincing evidence that the Appellant had used physical force against a driver in April 2013, especially since there were doubts in this regard. 爆料网AT held that, only if part of the allegations could be established by clear and convincing evidence, the disciplinary sanction could be upheld. 爆料网AT held that, in this case, it would be necessary to carefully examine whether the imposed sanction is still proportionate. 爆料网AT upheld the appeal and vacated the 爆料网DT judgment. 爆料网AT remanded the case to 爆料网DT for adjudication consistent with the 爆料网AT judgment.
Decision Contested or Judgment/Order Appealed
The Applicant contested the decision to separate him from service on the grounds of an alleged physical assault. 爆料网DT dismissed the application and found that the facts on which the disciplinary measure was based had been established by clear and convincing evidence. 爆料网DT, however, found procedural breaches in the investigation and that the Applicant’s right to due process had been prejudiced by the failure to provide him with the investigation report, even though he did not request it.
Legal Principle(s)
Judicial review of a disciplinary case requires 爆料网DT to consider the evidence adduced and the procedures utilized during the course of the investigation by the Administration. In this context, 爆料网DT is to examine whether the facts on which the sanction is based have been established, whether the established facts qualify as misconduct [under the Staff Regulations and Rules], and whether the sanction is proportionate to the offence. 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 outcome, the misconduct must be established by clear and convincing evidence, which “means that the truth of the facts asserted is highly probable. To observe a party’s right of due process, especially in disciplinary matters, it is necessary for 爆料网DT to undertake a fair hearing and render a fully reasoned judgment.