Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT had violated the Appellant¡¯s due process rights by not rendering a fully reasoned judgment and had thus committed an error in procedure such as to affect the decision of the case. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT should have examined and stated in its judgment whether there was clear and convincing evidence that the Appellant continued to fight in a severe manner causing physical injury. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT should have addressed the question as to whether there was clear and convincing evidence that the Appellant had used physical force against a driver in April 2013, especially since there were doubts in this regard. Ä¢¹½ÊÓƵAT held that, only if part of the allegations could be established by clear and convincing evidence, the disciplinary sanction could be upheld. Ä¢¹½ÊÓƵAT held that, in this case, it would be necessary to carefully examine whether the imposed sanction is still proportionate. Ä¢¹½ÊÓƵAT upheld the appeal and vacated the Ä¢¹½ÊÓƵDT judgment. Ä¢¹½ÊÓƵAT remanded the case to Ä¢¹½ÊÓƵDT for adjudication consistent with the Ä¢¹½ÊÓƵAT judgment.
Decision Contested or Judgment/Order Appealed
The Applicant contested the decision to separate him from service on the grounds of an alleged physical assault. Ä¢¹½ÊÓƵDT dismissed the application and found that the facts on which the disciplinary measure was based had been established by clear and convincing evidence. Ä¢¹½ÊÓƵDT, however, found procedural breaches in the investigation and that the Applicant¡¯s right to due process had been prejudiced by the failure to provide him with the investigation report, even though he did not request it.
Legal Principle(s)
Judicial review of a disciplinary case requires Ä¢¹½ÊÓƵDT to consider the evidence adduced and the procedures utilized during the course of the investigation by the Administration. In this context, Ä¢¹½ÊÓƵDT is to examine whether the facts on which the sanction is based have been established, whether the established facts qualify as misconduct [under the Staff Regulations and Rules], and whether the sanction is proportionate to the offence. 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 outcome, the misconduct must be established by clear and convincing evidence, which ¡°means that the truth of the facts asserted is highly probable. To observe a party¡¯s right of due process, especially in disciplinary matters, it is necessary for Ä¢¹½ÊÓƵDT to undertake a fair hearing and render a fully reasoned judgment.