爆料网AT Held or 爆料网DT Pronouncements
爆料网AT held that 爆料网DT was correct not to conclude that the Appellant had initiated the physical fight. 爆料网AT held that 爆料网DT was entitled to conclude the evidence of a witness was not clear and convincing, given inconsistencies. 爆料网AT held that 爆料网DT determined correctly that a prior altercation could not provide propensity evidence to corroborate witnesses’ accounts of the physical fight because the prior altercation was not investigated properly. 爆料网AT held that 爆料网DT committed an error in concluding that the Appellant had been unduly influenced into signing the settlement agreement, but that 爆料网DT was correct to conclude that the settlement agreement did not amount to clear and convincing evidence of guilt. With one exception that was not decisive of the appeal, 爆料网AT held that 爆料网DT did not err in fact or law. 爆料网AT dismissed the appeal and affirmed the 爆料网DT judgment.
Decision Contested or Judgment/Order Appealed
The Applicant contested the decision to separate him from service (on notice) for his involvement in a physical fight with a contractor on the Organisation’s premises. 爆料网DT rescinded the decision to separate the Applicant from service and awarded in-lieu compensation.
Legal Principle(s)
The standard to which the allegations of serious misconduct must be established before 爆料网DT is that of clear and convincing evidence. Clear and convincing evidence of misconduct, including serious misconduct, imports two high evidential standards: the first (“clear”) is that the evidence of misconduct must be unequivocal and manifest; the second (“convincing”) requires that this clear evidence must be persuasive to a high standard appropriate to the gravity of the allegation against the staff member and in light of the severity of the consequence of its acceptance.