Judgment No. 3882
The complaint is dismissed.
The complainant challenges the decision to dismiss him with immediate effect for misconduct.
termination of employment; misconduct; disciplinary procedure; complaint dismissed
As far as the admissibility of the documents is concerned, the Tribunal’s case law states that its practice is to consider any items that are material to a case, but that it will not use a confidential document to the complainant’s detriment unless she or he had the opportunity to see it beforehand (see Judgment 2062, under 5). It has further stated that an item which is material to a case will be admissible unless it was obtained by deceit, or its authenticity is in dispute (see Judgment 1637, under 6). The complainant does not challenge the authenticity of the documents and there is no evidence that they were obtained by deceit.
Jugement(s) TAOIT: 1637, 2062
It is settled principle that the organization must prove its case against a complainant in a disciplinary matter such as this beyond a reasonable doubt. The complainant argues that the FAO did not meet that standard of proof in the present case. The Tribunal’s approach when this issue is raised was stated, for example, in consideration 14 of Judgment 3649, as follows:
“At this juncture, it is useful to reiterate the well settled case law that the burden of proof rests on an organization to prove the allegations of misconduct beyond a reasonable doubt before a disciplinary sanction is imposed. It is equally well settled that the ‘Tribunal will not engage in a determination as to whether the burden of proof has been met, instead, the Tribunal will review the evidence to determine whether a finding of guilt beyond a reasonable doubt could properly have been made’ (see Judgment 2699, consideration 9).”
Jugement(s) TAOIT: 2699, 3649
evidence; burden of proof; disciplinary procedure
The complainant alleges that inter-personal issues between him and his supervisor escalated into a campaign of defamation against him. However, he has not substantiated this allegation. Neither has he substantiated his further allegation that he was harassed and mobbed. He did not follow the internal procedures for lodging a formal complaint. Neither has he substantiated his allegation that serious procedural flaws in the course of the disciplinary proceedings amounted to harassment. Accordingly, these grounds of the complaint are unfounded.
[T]he Tribunal recalls its consistent case law as to the scope of its review powers in a disciplinary case as stated, for example, in consideration 6 of Judgment 3757:
“[I]t is not the Tribunal’s role to reweigh the evidence collected by an investigative body the members of which, having directly met and heard the persons concerned or implicated, were able immediately to assess the reliability of their testimony. For that reason, reserve must be exercised before calling into question the findings of such a body and reviewing its assessment of the evidence. The Tribunal will interfere only in the case of manifest error (see Judgments 3682, under 8, and 3593, under 12).”
Jugement(s) TAOIT: 3593, 3682, 3757
disciplinary procedure; judicial review