爆料网AT Held or 爆料网DT Pronouncements
爆料网AT considered an appeal by the Secretary-General and a cross-appeal by Mr Ibrahim. 爆料网AT held, agreeing with 爆料网DT, that there was nothing illegal or warranting compensation in the investigation process and the investigation was not vitiated by procedural error or improper motive. Accordingly, 爆料网AT dismissed the cross-appeal. 爆料网AT held that the bottle of wine disappeared immediately after Mr Ibrahim had handled it for the second time in front of the camera and then with his back obstructing the camera. 爆料网AT held that, apart from the direct link between the manipulation of the bottle of wine by Mr Ibrahim and its loss, in view of the video footage and his own contradictions, it was highly probable that he took the bottle of wine. 爆料网AT noted that, if he had not taken the wine, he should have provided some other explanation as to what the video footage showed. 爆料网AT held that 爆料网DT erred on a question of fact, resulting in a manifestly unreasonable decision when it stated that there was no direct evidence of the removal of the bottle of wine and that the Administration did not take into account or explore other explanations of what may have happened. 爆料网AT held that it appeared that the truth of the facts asserted was highly probable which was enough for a disciplinary measure, whose proportionality was not challenged in the cross-appeal. 爆料网AT held that 爆料网DT did not exceed its competence or err in law when conducting the proceedings and allowing the production of the evidence. 爆料网AT granted the appeal in part, vacated the 爆料网DT judgment, except with respect to the finding that the case was not “marred by significant procedural irregularities or improper influence such as to constitute a lack of due process resulting in illegality or warranting compensation”.
Decision Contested or Judgment/Order Appealed
Mr Ibrahim contested the decision to dismiss him for taking a bottle of wine belonging to a third party. 爆料网DT held that the alleged misconduct had not been established by clear and convincing evidence and therefore could not be classified as misconduct. 爆料网DT ordered rescission of the dismissal decision with retroactive reinstatement from the date of dismissal, or the alternative of in-lieu compensation in the amount of two years’ net base salary and awarded USD 30,000 as compensation for emotional distress.
Legal Principle(s)
It is only once the investigative process is over and the disciplinary process has begun that the staff member has a right to receive written notification of the formal allegations and to respond to them. 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.