Judgment No. 4934
Decision
1. The impugned decision of 21 April 2022 is set aside.
2. The matter is remitted to IOM to be dealt with in accordance with consideration 10.
3. IOM shall pay the complainant 10,000 euros costs.
Summary
The complainant contests the decision to summarily dismiss him for serious misconduct.
Judgment keywords
Keywords
complaint allowed; settlement out of court; serious misconduct; summary dismissal; beyond reasonable doubt
Consideration 7
Extract:
It may be accepted that the expression “[existing] set of precise and concurring presumptions” can be viewed as a circumstance, in appropriate contexts, which leads to establishing proof beyond reasonable doubt. This is illustrated, for example, in Judgment 3875, consideration 8, in which the Tribunal said:
“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 may 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.”
It was said in Judgment 3757, consideration 6, that:
“[...] a set of precise and concurring presumptions removing any reasonable doubt that the acts in question actually took place”.
Reference(s)
ILOAT Judgment(s): 3757, 3875
Keywords
burden of proof; serious misconduct; disciplinary procedure; beyond reasonable doubt
Consideration 8
Extract:
There are judgments in which the failure of a decision maker to expressly identify the standard of proof has led the Tribunal to consider the decision regarding misconduct unlawful (see, for example, Judgments 4633, considerations 9 to 11, and 4360, consideration 12). Whether the contention, in this case, that the standard of beyond reasonable doubt was not identified and applied, was correct is an entirely different matter. The JARB could probably have dealt with this issue in a relatively short compass, but it did not at all. In the result, there was, as the complainant contends, a violation of his right to an effective internal appeal.
Reference(s)
ILOAT Judgment(s): 4360, 4633
Keywords
serious misconduct; disciplinary measure; standard of proof; beyond reasonable doubt
Consideration 10
Extract:
The appropriate course is to remit the matter to IOM to have the internal appeal considered again by a differently constituted JARB and for a further decision to be made by the Director General having regard to the report of JARB unless, of course, the matter settles in the meantime.
Keywords
settlement out of court; serious misconduct
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