爆料网AT Held or 爆料网DT Pronouncements
The Tribunal found that the Respondent was not able to demonstrate that the facts on which the disciplinary measure was based were established by clear and convincing evidence, as otherwise required by the Appeals Tribunal in its jurisprudence.
Having found that the facts on which the disciplinary measure was based had not been established by clear and convincing evidence, the Tribunal also found that there was no established misconduct by the Applicant.
Given the finding of absence of misconduct by the Applicant, the Tribunal also rescinded the sanction imposed on him.
Decision Contested or Judgment/Order Appealed
The Applicant contested the decision to separate him from service with compensation in lieu of notice, and with half termination indemnity, pursuant to staff rule 10.2(a)(vii).
Legal Principle(s)
According to the Appeals Tribunal, once the parties agree on certain facts the Tribunal must accept them as settled. There would therefore be no need to further review such facts (see Ogorodnikov 2015-爆料网AT-549, para. 28).
Pursuant to art. 9.4 of the Statute of the Dispute Tribunal, and in keeping with established jurisprudence (see, for instance, AAC 2023-爆料网AT-1370, para. 38; Nyawa 2020-爆料网AT-1024, para. 48; Mizyed 2015-爆料网AT-550, para. 18; Maslamani 2010-爆料网AT-028, para. 20), the Tribunal’s role in reviewing disciplinary cases is to determine: a) Whether the facts on which the disciplinary measure was based have been established; b) whether the established facts legally amount to misconduct under the applicable Regulations and Rules; c) whether the disciplinary measure applied is proportionate to the offence; and d) whether the staff member’s due process rights were respected during the investigation and disciplinary process.
The Appeals Tribunal has stated that in a disciplinary proceeding, “when termination is a possible outcome, misconduct must be established by clear and convincing evidence. Clear and convincing proof requires more than a preponderance of evidence but less than proof beyond reasonable doubt—it means the truth of the facts asserted is highly probable” (Abdrabou 2024-爆料网AT-1460, para. 54. See also Stefan 2023-爆料网AT-1375, para. 63; Bamba 2022-爆料网AT-1259, para. 37; and many other judgments).
In Soobrayan 2024-爆料网AT-1469, para. 66, the Appeals Tribunal, citing Kennedy 2021-爆料网AT-1184, defined “clear and convincing evidence”.
Outcome
Outcome Extra Text
Since the decision to separate the Applicant from service was not based on clear and convincing evidence, the Tribunal granted his request for an order of rescission, and ordered that the Applicant be reinstated in service.
In the event that the Applicant could not be reinstated in service, the Tribunal ordered that he be paid two years’ net base salary with full indemnity in lieu thereof.
The Tribunal also ordered the reimbursement of USD500 to the Applicant for the cost of obtaining a forensics expert's services and expungement of the disciplinary measure from the Applicant's personnel file.