爆料网AT Held or 爆料网DT Pronouncements
爆料网AT considered the appeal of Mr Bagot and the cross-appeal of the Commissioner-General. 爆料网AT held that the Commissioner-General’s cross-appeal was receivable. 爆料网AT agreed with the findings of 爆料网RWA DT that the established facts regarding the lunch and the events that took place in the apartment did not amount to misconduct. 爆料网AT held that the only reasonable conclusion available to the first instance Judge was that the facts of the alleged misconduct were not established by clear and convincing evidence, in light of the plot and the sequence of the events, assessed in conjunction with the fact that Mr Bagot and the alleged victim had a friendly relationship, that he invited her to his apartment after lunch, that she accepted the invitation and they drank several cocktails and finally engaged in a personal conversation and that there was physical contact to which the alleged victim did not object at the beginning and which he immediately ceased when asked to do so. 爆料网AT held that 爆料网RWA DT correctly concluded that Mr Bagot’s behaviour surrounding the lunch, aside from not being work-related, could not reasonably be considered unwelcome. Considering the events which followed, 爆料网AT held that an analysis of the totality of circumstances did not reveal in a clear and unambiguous way that Mr Bagot had constructive knowledge of the unwelcome nature of his actions. 爆料网AT held that the facts did not constitute clear and convincing evidence of misconduct. 爆料网AT held that 爆料网RWA DT erred in law and fact by not deciding in accordance with the principle of presumption of innocence and the applicable burden of proof. 爆料网AT held that there was no clear and convincing evidence that Mr. Bagot’s conduct as established constituted sexual harassment. 爆料网AT held that 爆料网RWA DT erred in law and fact in determining that Mr Bagot’s conduct constituted sexual harassment. 爆料网AT held that the conditions for harassment and abuse of authority were not satisfied. 爆料网AT allowed the appeal in part. 爆料网AT reversed the 爆料网RWA DT judgment to the extent that it found that the termination of Mr Bagot’s appointment was lawful. 爆料网AT ordered Mr Bagot’s reinstatement, or compensation in lieu of rescission of the separation dismissed the Commissioner-General’s cross-appeal and ordered a copy of the judgment to be placed in Mr Bagot’s personnel file within two weeks of the issuance of the judgment.
Decision Contested or Judgment/Order Appealed
The Applicant contested his termination for misconduct, having been charged with sexual harassment, harassment, and abuse of authority. 爆料网RWA DT upheld the termination decision.
Legal Principle(s)
There is no statutory provision that prevents a prevailing party from filing a so-called “conditional cross-appeal”, whose fate depends entirely on the initial appeal, meaning that if the initial appeal is denied, so too is the cross-appeal. In a system of administration of justice governed by law, the presumption of innocence must be respected. Pursuant to GSC No. 06/2010, for the behaviour of a staff member to be punishable as constituting the disciplinary offence of sexual harassment or harassment, it is not enough to be found “inappropriate”; no conduct automatically rises to the level of sexual harassment merely on the basis of its sexual overtones and lack of “appropriateness” or to the level of harassment on foot of its “inappropriate” character and this is true no matter how reprehensible one finds that conduct to be unless it involves the elements articulated in the relevant rules and jurisprudence.
Outcome
Outcome Extra Text
Reinstatement or financial compensation; Reinstatement or financial compensation