2017-Ģ��ƵAT-776

Ģ��ƵAT Held or Ģ��ƵDT Pronouncements

Ģ��ƵAT considered an appeal by the Secretary-General and a cross-appeal by Mr Ibrahim. Ģ��ƵAT held, agreeing with Ģ��ƵDT, that there was nothing illegal or warranting compensation in the investigation process and the investigation was not vitiated by procedural error or improper motive. Accordingly, Ģ��ƵAT dismissed the cross-appeal. Ģ��ƵAT held that the bottle of wine disappeared immediately after Mr Ibrahim had handled it for the second time in front of the camera and then with his back obstructing the camera. Ģ��ƵAT held that, apart from the direct link between the manipulation of the bottle of wine by Mr Ibrahim and its loss, in view of the video footage and his own contradictions, it was highly probable that he took the bottle of wine. Ģ��ƵAT noted that, if he had not taken the wine, he should have provided some other explanation as to what the video footage showed. Ģ��ƵAT held that Ģ��ƵDT erred on a question of fact, resulting in a manifestly unreasonable decision when it stated that there was no direct evidence of the removal of the bottle of wine and that the Administration did not take into account or explore other explanations of what may have happened. Ģ��ƵAT held that it appeared that the truth of the facts asserted was highly probable which was enough for a disciplinary measure, whose proportionality was not challenged in the cross-appeal. Ģ��ƵAT held that Ģ��ƵDT did not exceed its competence or err in law when conducting the proceedings and allowing the production of the evidence. Ģ��ƵAT granted the appeal in part, vacated the Ģ��ƵDT judgment, except with respect to the finding that the case was not ��marred by significant procedural irregularities or improper influence such as to constitute a lack of due process resulting in illegality or warranting compensation��.

Decision Contested or Judgment/Order Appealed

Mr Ibrahim contested the decision to dismiss him for taking a bottle of wine belonging to a third party. Ģ��ƵDT held that the alleged misconduct had not been established by clear and convincing evidence and therefore could not be classified as misconduct. Ģ��ƵDT ordered rescission of the dismissal decision with retroactive reinstatement from the date of dismissal, or the alternative of in-lieu compensation in the amount of two years�� net base salary and awarded USD 30,000 as compensation for emotional distress.

Legal Principle(s)

It is only once the investigative process is over and the disciplinary process has begun that the staff member has a right to receive written notification of the formal allegations and to respond to them. 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.

Outcome

Appeal granted in part

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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

Ibrahim

Entity

Case Number(s)

Tribunal

Registry

Date of Judgement