2013-Ģ��ƵAT-291

Ģ��ƵAT Held or Ģ��ƵDT Pronouncements

Ģ��ƵAT considered two appeals by Ms Perelli, against judgment Nos. Ģ��ƵDT/2012/034 and Ģ��ƵDT/2012/100. On the matter of due process, given Ms Perelli had the opportunity to rebut allegations and contents of the relevant report, Ģ��ƵAT held that these procedural steps were part of her due process entitlements and, to the extent that Ģ��ƵDT found the Administration to have respected these procedural steps, Ģ��ƵAT upheld the finding of Ģ��ƵDT. Ģ��ƵAT held that the Investigation Panel report satisfied neither the remit given to it nor the statutory requirements of ST/AI/371. Ģ��ƵAT held that Ms Perelli was entitled to a judicial review by Ģ��ƵDT of the Secretary-General��s decision to reject the findings of the Joint Disciplinary Committee (JDC) on due process, given the very serious admissions made by the Investigation Panel members to the JDC. Ģ��ƵAT held that Ģ��ƵDT should have exercised judicial review of the Secretary-General��s response before satisfying itself that the required standard of proof for dismissal for misconduct was met. Ģ��ƵAT held that, in view of the fundamentally flawed nature of the Investigation Panel investigation, it was satisfied that the Secretary-General��s rejection of the JDC��s findings on due process tainted his decision. Ģ��ƵAT held that Ģ��ƵDT failed manifestly to attach sufficient weight to the findings of the JDC on the limitations which attached to the Appellant��s constructive knowledge of her conduct being unwelcome. Ģ��ƵAT held that, in failing to take the factors outlined in the JDC��s report into account, Ģ��ƵDT legitimised the Secretary-General��s unlawful rejection of the JDC findings and thereby allowed the dismissal of the Appellant to be affirmed on foot of a charge of sexual harassment, which could not be sustained given the absence of the third requisite statutory element, namely, that the conduct complained of was unwelcome. Ģ��ƵAT held that there was no clear and convincing evidence as a matter of high probability that the Appellant had engaged in sexual harassment within the definition of ST/AI/379. Ģ��ƵAT allowed the appeal, reversed the Ģ��ƵDT judgment (that the dismissal was lawful) and ordered reinstatement or compensation in lieu of two years�� net base salary.

Decision Contested or Judgment/Order Appealed

The Applicant contested her summary dismissal for sexual harassment, professional harassment, and abuse of authority. In judgment Ģ��ƵDT/2012/034, Ģ��ƵDT found against the Applicant. In judgment Ģ��ƵDT/2012/100, Ģ��ƵDT dismissed the application as moot, not receivable and manifestly inadmissible.

Legal Principle(s)

When reviewing disciplinary cases, the three factors to be examined are: whether the facts on which the disciplinary measure was based have been established; whether the established facts legally amount to misconduct; and whether the disciplinary measure was proportionate to the offence.

Outcome

Appeal granted

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The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.

Applicants/Appellants

Perelli

Entity

Case Number(s)

Tribunal

Registry