Judgment No. 3875
The complaint is dismissed.
The complainant challenges the decision to dismiss him on disciplinary grounds.
termination of employment; disciplinary procedure; complaint dismissed
Established precedent has it that before adopting a disciplinary measure, an organization must first inform the staff member concerned that disciplinary proceedings have been initiated and she or he must be given the opportunity to defend herself or himself in adversarial proceedings. The staff member must be able to express her or his point of view and participate in the processing of any evidence which might be considered relevant to discovering the truth.
The case law has also made clear that a disciplinary investigation must be conducted in such a way as to clarify all the relevant facts without compromising the good name of the employee, and that the employee must be given an opportunity to test the evidence against her or him and to answer the charges made (see, in particular, Judgments 2254, under 6(a), 2475, under 7, 2771, under 14 and 15, 3315, under 6, and 3682, under 13).
ILOAT Judgment(s): 2254, 2475, 2771, 3315, 3682
inquiry; disciplinary procedure; right to be heard; investigation
An investigation aimed at identifying the perpetrator of an undisputed incident of computer hacking has no chance of success unless rigorous protective measures are taken immediately, as a first step, in order to put an end to the damage caused by this unlawful action. The evidence in the file shows, firstly, that the conduct of the investigators towards an employee whom they could objectively regard as the prime suspect did not go beyond what was necessary in the circumstances. Had they not seized all the data in his possession, and had he not been removed temporarily from his workplace, it would have been easy for him, if he was the guilty party, to erase any data which might have proved that he was implicated in the hacking which formed the subject of the investigation.
inquiry; hacking; procedural rights during investigation; investigation; evidence during investigation
In disciplinary matters, the burden of proof lies with the employer, which must demonstrate that the employee did indeed engage in the conduct of which she or he is accused. If the facts are disputed and there is no persuasive material evidence, the facts of the dispute must be appraised on the basis of conclusive circumstantial evidence. Thus, the facts may be held to be established when a set of precise presumptions and concurring circumstantial evidence enable the decision-making authority to conclude beyond reasonable doubt that the person concerned is guilty (see, in particular, Judgments 2786, under 9, 2849, under 16, and 3297, under 8).
When a complaint is filed seeking the setting aside of a disciplinary measure or a dismissal ordered at the end of disciplinary proceedings, it is not the Tribunal’s role to reweigh the evidence collected by an investigative body, the members of which have already appraised this evidence, or in particular the reliability of the testimony of persons whom they have directly heard (see, in particular, Judgment 3757, under 6). This is all the more true when the evidence to be appraised comprises extremely complex technical elements such as those inherent to a process of computer hacking of the kind observed in this case. What is essential is that any person under investigation has ample opportunity to adduce and refute evidence, which has manifestly been the case here.
ILOAT Judgment(s): 2786, 2849, 3297, 3757
burden of proof; disciplinary procedure; hacking