Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
Ä¢¹½ÊÓƵAT held that the facts upon which Ä¢¹½ÊÓƵRWA based its decision were established, in full respect of his due process rights. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵRWA DT did not err as there was clear and convincing evidence that the Appellant committed sexual exploitation and abuse against a beneficiary of Ä¢¹½ÊÓƵRWA; neither did it err in concluding that the disciplinary sanction was proportionate and lawful. Ä¢¹½ÊÓƵAT held that the Appellant, by having the complainant remove her pants and underwear and engaging in a such a sensitive and specific medical examination, which he did not have the required competencies and entitlements to do, violated his obligations, and his conduct amounted to sexual abuse and exploitation against a beneficiary in a vulnerable situation. Ä¢¹½ÊÓƵAT held that the sanction was not unreasonable, absurd or disproportionate. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵRWA correctly held that he had violated the relationship of trust between him and Ä¢¹½ÊÓƵRWA and that his conduct was particularly grave in light of the position he held as a Practical Nurse, which involved daily interactions with physically and emotionally vulnerable beneficiaries. Ä¢¹½ÊÓƵAT noted the fact that, as a woman, the complainant fell within a ¡°most vulnerable¡± status and by exploiting this status, the Appellant placed the complainant in a potentially harmful position where she could suffer retaliation by her community because of such an incident and for having made a complaint about it. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵRWA DT did not err in finding the sanction proportionate to the disciplinary offence in the case. On the specific issue of being able to confront and cross-examine his accusers, Ä¢¹½ÊÓƵAT held the due process rights of a staff member are complied with as long as she or he has a meaningful opportunity to mount a defence and to question the veracity of the statements against him or her. Ä¢¹½ÊÓƵAT held that the key elements of the Appellant¡¯s right to due process were met and the interests of justice were served. Ä¢¹½ÊÓƵAT found no error in Ä¢¹½ÊÓƵDT¡¯s finding that there were no breaches of the Appellant¡¯s due process rights during the investigation and disciplinary process. Ä¢¹½ÊÓƵAT dismissed the appeal and affirmed the Ä¢¹½ÊÓƵRWA DT Judgment.
Decision Contested or Judgment/Order Appealed
The Appellant contested his separation from service without termination indemnity for sexual exploitation and abuse committed against a beneficiary. Ä¢¹½ÊÓƵRWA DT dismissed the application, finding that Ä¢¹½ÊÓƵRWA had made the case of misconduct against him by clear and convincing evidence.
Legal Principle(s)
Judicial review of a disciplinary case requires Ä¢¹½ÊÓƵRWA DT to consider the evidence adduced and the procedures utilised during the course of the investigation by the Administration. 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, misconduct must be established by clear and convincing evidence. The presumption of innocence must be respected. The matter of the degree of the sanction is usually reserved for the Administration, which has discretion to impose the measure that it considers adequate in the circumstances of the case and for the actions and conduct of the staff member involved. The Tribunals will only interfere and rescind or modify a sanction imposed by the Administration where the sanction impose is blatantly illegal, arbitrary, adopted beyond the limits stated by the respective norms, excessive, abusive, discriminatory or absurd in its severity. The appeals procedure is of a corrective nature and not an opportunity for a dissatisfied part to reargue his or her case. A party cannot merely repeat on appeal arguments that did not succeed before the lower court. An Appellant has the burden of satisfying Ä¢¹½ÊÓƵAT that the judgment he or she seeks to challenge is defective. Due process does not always require that a staff member defending a disciplinary action of separation has the right to confront and cross-examine his accusers. Due process rights of a staff member are complied with as long as she or he has a meaningful opportunity to mount a defence and to question the veracity of the statements against him or her.
Outcome
Outcome Extra Text
N/A