Ä¢¹½ÊÓƵ

Receivability

The Respondent challenged the receivability of the application. However, the Tribunal found it receivable as it considered that the Applicant challenged the decision not to initiate an investigation into her complaint of potential prohibited conduct, and not the outcome of the management evaluation as argued by the Respondent.

Merits

The Tribunal recalled that it is not mandated to conduct a fresh investigation in the matter, nor to draw its own conclusions of the evidence. Instead, it is tasked with identifying whether the preliminary assessment was conducted properly based on the...

The Ä¢¹½ÊÓƵAT held that the Inspector General¡¯s Office (IGO) and the Administration failed to properly consider relevant factors brought to their attention during the investigation into the staff member's misconduct. Specifically, they did not considerate the medical context in which the established misconduct occurred, which could have been exculpatory for the staff member. The Ä¢¹½ÊÓƵAT found that they failed to investigate and appreciate the potential effects of the staff member's brain tumour and/or treatment on certain aspects of his interpersonal relations with other staff members.

The Ä¢¹½ÊÓƵAT...

There is no evidence that the facts that were taken into consideration to substantiate the investigator¡¯s finding of ¡°prior conduct¡± were properly investigated up to the threshold of clear and convincing evidence. Therefore, the credibility assessment made by the Administration via the use of prior conduct evidence cannot stand, and the alleged prior conduct evidence was not considered by this Tribunal in its judicial review of the facts.
With respect to the allegation that the Applicant sexually harassed V01, based on the 8 and 21 November 2017 emails, which confirm the Applicant¡¯s persistency...

The Ä¢¹½ÊÓƵAT held that there was a clear disjunct in the Ä¢¹½ÊÓƵDT¡¯s decision to grant Mr. Nair¡¯s application only in relation to the disciplinary measures (but not the administrative measures), and at the same time, rescinding the actual disciplinary decision. The Ä¢¹½ÊÓƵAT noted the confusion presented by Ä¢¹½ÊÓƵDT¡¯s finding that ¡°no misconduct occurred at all¡±, while at the same time accepting that Mr. Nair had ¡°repeatedly reacted and used hostile language¡± which justified, in the Ä¢¹½ÊÓƵDT¡¯s view, the imposition of administrative measures. The Ä¢¹½ÊÓƵAT held that the administrative measures under Staff Rule 10.2(b)...

Mr. Nastase appealed the Ä¢¹½ÊÓƵDT Judgment.

The Ä¢¹½ÊÓƵAT affirmed the Ä¢¹½ÊÓƵDT's finding that it had not been established by evidence that the administrative decision to close his complaint was actuated by bias against him and was therefore unlawful.

The Ä¢¹½ÊÓƵAT dismissed Mr. Nastase's contention that the Ä¢¹½ÊÓƵDT erred in finding that the fact that in 2019, Mr. Nastase had filed a complaint against the CIOS alleging misconduct was unrelated to his performance issues. The Ä¢¹½ÊÓƵAT found that because these events were not part of his complaint of harassment and abuse of authority in relation to his performance...

The Ä¢¹½ÊÓƵAT held that the Ä¢¹½ÊÓƵDT judgment was problematic because the Ä¢¹½ÊÓƵDT's findings seemed to be based entirely on hearsay evidence, i.e., the findings in the OIOS investigation report. The Ä¢¹½ÊÓƵAT observed that the Ä¢¹½ÊÓƵDT judgment failed to explain the evidentiary basis of its conclusion that sexual harassment was highly probable, and made no explicit or precise findings in relation to the evidence given under oath at the hearing. The failure of the Ä¢¹½ÊÓƵDT to make findings about the testimony it heard made the appeal well-nigh impossible. The Ä¢¹½ÊÓƵAT noted that there was no transcript of the hearing, and...

The Ä¢¹½ÊÓƵAT dismissed the appeal. The Ä¢¹½ÊÓƵAT held that the Ä¢¹½ÊÓƵDT did not err in finding that Mr. Reiterer had committed the alleged misconduct. The Ä¢¹½ÊÓƵAT agreed with the finding of the Ä¢¹½ÊÓƵDT that the established facts amounted to misconduct on the part of Mr. Reiterer, namely that he violated ST/SGB/2008/5 concerning count one and ST/AI/2013/4 concerning count two. The Ä¢¹½ÊÓƵAT further found that given the nature and the specific facts surrounding Mr. Reiterer¡¯s misconduct, the sanction of demotion by one grade with deferment, for one year, of eligibility for consideration for promotion, was not...

The Ä¢¹½ÊÓƵAT held that the Ä¢¹½ÊÓƵDT had not erred in holding that there had been clear and convincing evidence that the staff member harassed other staff members over a substantial period of time, and that this behaviour constituted serious misconduct. The Ä¢¹½ÊÓƵAT affirmed that there was clear and convincing evidence to support the seven allegations that Ms. Iram used abusive language, made insulting remarks, shouted and bullied individuals, engaged in inappropriate touching, and made unwelcome contacts with individuals at their homes after working hours. The Ä¢¹½ÊÓƵAT found that the staff member¡¯s due...

The Ä¢¹½ÊÓƵAT upheld the Ä¢¹½ÊÓƵDT¡¯s conclusions that (1) four of the six incidents underlying the hostile work environment charge against the appellant were not established, but that two incidents were; and (2) appellant had unlawfully interfered with a recruitment exercise which also created a hostile work environment. The Ä¢¹½ÊÓƵAT rejected appellant¡¯s contention that because the Ä¢¹½ÊÓƵDT considered that certain actions were not harassment, that they could not constitute misconduct. Whereas certain comments by the appellant about the gender composition of the senior management team, or a failure by appellant...

Procedural issue: anonymity In the present case, the sensitive information regarding the Applicant¡¯s medical history and his mental health status constitutes exceptional circumstances that warrant granting anonymity. Therefore, the Applicant¡¯s name is anonymized in the present judgment. Scope of judicial review It is within the Tribunal¡¯s competence to hold a hearing or look at facts that were allegedly not before the decision-maker to determine whether relevant factors have been ignored. This is fundamentally different from a de novo investigation into the facts underlying the disciplinary...