爆料网AT Held or 爆料网DT Pronouncements
爆料网AT considered the appeal by the Secretary-General. 爆料网AT held that 爆料网DT correctly concluded that the Administration properly exercised its discretion to place the Applicant on administrative leave, considering an enduring reputational risk in light of the allegations relating to sexual abuse and exploitation of an under-age girl, which were reasonably supported by the evidence. 爆料网AT held that the new Staff Rule 10. 4(c), which had not yet been enacted at the relevant time, was not applicable to the Applicant’s misconduct. 爆料网AT held that 爆料网DT’s factual findings were open to criticism in that 爆料网DT failed to take into account or give weight to several facts. 爆料网AT held that the totality of the evidence formed an adequate objective basis to conclude that there was probable cause that the Applicant had engaged in the alleged misconduct. 爆料网AT emphasised that the Secretary-General’s classification of the objectively established circumstances as exceptional was a matter for his discretion. 爆料网AT held that 爆料网DT erred in law by holding that a reasonable exercise of the discretion required a stricter standard of clear and convincing evidence and that the existence of objective grounds sustaining a reasonable belief of misconduct will normally be sufficient justification for the decision. 爆料网AT held that the decision of the Secretary-General to regard the egregious sexual misconduct as an “exceptional circumstance” was within the bounds of reasonableness. 爆料网AT held that the decision to impose ALWOP in sexual misconduct cases was not disproportionate. 爆料网AT held that 爆料网DT erred in law and in fact. 爆料网AT upheld the appeal and vacated the 爆料网DT judgment.
Decision Contested or Judgment/Order Appealed
The Applicant contested the decision to place him on ALWOP. 爆料网DT found that the Administration, given the sensitive nature of the allegations and the reputational risk involved, correctly exercised its discretion when it placed the Applicant on administrative leave. However, 爆料网DT held that the evidence available at the time of the contested decision was insufficient to support the Administration’s conclusion that “exceptional circumstances”, justified placing the Applicant on ALWOP and therefore concluded that the decision was unlawful. 爆料网DT ordered the rescission of that decision, declared the subsequent extension of ALWOP void ab initio, and rejected the Applicant’s claims for moral damages.
Legal Principle(s)
The probable cause standard is a practical, non-technical standard asking whether the proven circumstances permit a reasonable inference. The existence of reasonable cause, and of the belief founded upon it, is still ultimately a question of fact to be tried on evidence. There must be an objective factual basis for the reasonable belief of sexual misconduct. A decision to impose administrative leave without pay (ALWOP) in sexual misconduct cases is not disproportionate.