Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
Ä¢¹½ÊÓƵAT considered the appeal by the Secretary-General. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT correctly concluded that the Administration properly exercised its discretion to place the Applicant on administrative leave, considering an enduring reputational risk in light of the allegations relating to sexual abuse and exploitation of an under-age girl, which were reasonably supported by the evidence. Ä¢¹½ÊÓƵAT held that the new Staff Rule 10. 4(c), which had not yet been enacted at the relevant time, was not applicable to the Applicant¡¯s misconduct. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT¡¯s factual findings were open to criticism in that Ä¢¹½ÊÓƵDT failed to take into account or give weight to several facts. Ä¢¹½ÊÓƵAT held that the totality of the evidence formed an adequate objective basis to conclude that there was probable cause that the Applicant had engaged in the alleged misconduct. Ä¢¹½ÊÓƵAT emphasised that the Secretary-General¡¯s classification of the objectively established circumstances as exceptional was a matter for his discretion. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT erred in law by holding that a reasonable exercise of the discretion required a stricter standard of clear and convincing evidence and that the existence of objective grounds sustaining a reasonable belief of misconduct will normally be sufficient justification for the decision. Ä¢¹½ÊÓƵAT held that the decision of the Secretary-General to regard the egregious sexual misconduct as an ¡°exceptional circumstance¡± was within the bounds of reasonableness. Ä¢¹½ÊÓƵAT held that the decision to impose ALWOP in sexual misconduct cases was not disproportionate. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT erred in law and in fact. Ä¢¹½ÊÓƵAT upheld the appeal and vacated the Ä¢¹½ÊÓƵDT judgment.
Decision Contested or Judgment/Order Appealed
The Applicant contested the decision to place him on ALWOP. Ä¢¹½ÊÓƵDT found that the Administration, given the sensitive nature of the allegations and the reputational risk involved, correctly exercised its discretion when it placed the Applicant on administrative leave. However, Ä¢¹½ÊÓƵDT held that the evidence available at the time of the contested decision was insufficient to support the Administration¡¯s conclusion that ¡°exceptional circumstances¡±, justified placing the Applicant on ALWOP and therefore concluded that the decision was unlawful. Ä¢¹½ÊÓƵDT ordered the rescission of that decision, declared the subsequent extension of ALWOP void ab initio, and rejected the Applicant¡¯s claims for moral damages.
Legal Principle(s)
The probable cause standard is a practical, non-technical standard asking whether the proven circumstances permit a reasonable inference. The existence of reasonable cause, and of the belief founded upon it, is still ultimately a question of fact to be tried on evidence. There must be an objective factual basis for the reasonable belief of sexual misconduct. A decision to impose administrative leave without pay (ALWOP) in sexual misconduct cases is not disproportionate.