2013-Ģ��ƵAT-364

Ģ��ƵAT Held or Ģ��ƵDT Pronouncements

Ģ��ƵAT considered an appeal by the Secretary-General. Ģ��ƵAT held that the facts upon which the sanction was based had not been established by clear and convincing evidence, albeit for different reasons than given by Ģ��ƵDT. Ģ��ƵAT held that Ģ��ƵDT��s determination that the evidence from two witnesses had little probative value was correct because although written witness statements taken under oath can be sufficient to establish by clear and convincing evidence the facts to support the dismissal of a staff member when a statement is not made under oath or affirmation, there must be some other indicia of reliability or truthfulness for the statement to have probative value. Ģ��ƵAT held that since there was no transcript of the evidence taken before the Joint Disciplinary Committee (JDC), Ģ��ƵAT could not determine whether the testimony was reliable or truthful. Ģ��ƵAT held that, without the transcript, it only had the JDC report which summarised the witnesses�� testimony and such summarisation was merely hearsay, which may properly be found to have little probative value when it does not corroborate competent evidence. Ģ��ƵAT held that it was the responsibility of the Administration to assure that a transcript of the proceedings before the JDC can be provided to Ģ��ƵAT if requested and noted that the Administration was unable to do this. Ģ��ƵAT held that the balance of probabilities standard used by the JDC was considerably less than the clear and convincing evidence standard required for the dismissal of a staff member. Ģ��ƵAT held that Ģ��ƵDT correctly concluded that the Administration did not establish the facts upon which the dismissal was based by clear and convincing evidence. Ģ��ƵAT dismissed the appeal and affirmed the Ģ��ƵDT judgment.

Decision Contested or Judgment/Order Appealed

Ģ��ƵDT Judgment: The Applicant contested the decision to summarily dismiss her for misconduct in the form of soliciting and receiving payments from three Casual Daily Workers in exchange for recruitment and continued appointment. Ģ��ƵDT found for the Applicant

Legal Principle(s)

The Administration bears the burden of establishing that the alleged misconduct, for which a disciplinary measure has been taken against a staff member, occurred. When termination is a possible sanction, the misconduct must be established by clear and convincing evidence, which means that the truth of the facts asserted is highly probable. Written witness statements taken under oath can be sufficient to establish, by clear and convincing evidence, the facts underlying the charges of misconduct to support the dismissal of a staff member. When a statement is not made under oath or affirmation, however, there must be some other indicia of reliability or truthfulness for the statement to have probative value.

Outcome

Appeal dismissed on merits

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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

Nyambuza

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Case Number(s)

Tribunal

Registry

Date of Judgement