Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT was correct not to conclude that the Appellant had initiated the physical fight. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT was entitled to conclude the evidence of a witness was not clear and convincing, given inconsistencies. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT determined correctly that a prior altercation could not provide propensity evidence to corroborate witnesses¡¯ accounts of the physical fight because the prior altercation was not investigated properly. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT committed an error in concluding that the Appellant had been unduly influenced into signing the settlement agreement, but that Ä¢¹½ÊÓƵDT was correct to conclude that the settlement agreement did not amount to clear and convincing evidence of guilt. With one exception that was not decisive of the appeal, Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT did not err in fact or law. Ä¢¹½ÊÓƵAT dismissed the appeal and affirmed the Ä¢¹½ÊÓƵDT judgment.
Decision Contested or Judgment/Order Appealed
The Applicant contested the decision to separate him from service (on notice) for his involvement in a physical fight with a contractor on the Organisation¡¯s premises. Ä¢¹½ÊÓƵDT rescinded the decision to separate the Applicant from service and awarded in-lieu compensation.
Legal Principle(s)
The standard to which the allegations of serious misconduct must be established before Ä¢¹½ÊÓƵDT is that of clear and convincing evidence. Clear and convincing evidence of misconduct, including serious misconduct, imports two high evidential standards: the first (¡°clear¡±) is that the evidence of misconduct must be unequivocal and manifest; the second (¡°convincing¡±) requires that this clear evidence must be persuasive to a high standard appropriate to the gravity of the allegation against the staff member and in light of the severity of the consequence of its acceptance.