Evidence (144, 145, 146, 147, 149, 150, 151, 152, 153, 154, 155, 156, 157,-666)
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Keywords: Evidence
Total judgments found: 243
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Judgment 3831
124th Session, 2017
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her allegations of harassment.
Consideration 28
Extract:
Where any internal appeal body has heard evidence and made findings of fact, the Tribunal will only interfere in the case of manifest error (see Judgment 3597, under 2, and the cases cited therein).
Reference(s)
ILOAT Judgment(s): 3597
Keywords:
evidence; internal appeals body; manifest error;
Judgment 3757
123rd Session, 2017
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him summarily.
Consideration 6
Extract:
The impugned decision rightly emphasises that adducing material evidence is especially difficult in cases of corruption or market manipulation where nothing is put in writing by either party and everything often takes place without the involvement of third persons who might be called as witnesses. A staff member who is accused of such dealings is certainly entitled to due process offering him every opportunity to defend his interests, and the burden of proof always falls upon the Administration. However, the latter’s investigation will not be required to culminate in the establishment of absolute proof. All that is needed is a set of precise and concurring presumptions removing any reasonable doubt that the acts in question actually took place (see Judgments 1384, under 10, 3137, under 6, and 3297, under 8).
Reference(s)
ILOAT Judgment(s): 1384, 3137, 3297
Keywords:
burden of proof; due process; evidence;
Consideration 6
Extract:
[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).
Reference(s)
ILOAT Judgment(s): 3593, 3682
Keywords:
disciplinary procedure; evidence; inquiry; investigation; manifest error;
Judgment 3755
123rd Session, 2017
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his continuing appointment owing to the abolition of his position.
Consideration 10
Extract:
The resultant flaw in the internal appeal procedure [non-disclosure of evidence] was not remedied in any way by the fact that the Organization produced the report in question with its reply before the Tribunal.
Keywords:
disclosure of evidence; evidence; reply;
Consideration 10
Extract:
The Tribunal has repeatedly held that a staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) a decision affecting a personal interest worthy of protection. Under normal circumstances, such evidence cannot be withheld on grounds of confidentiality unless there is some special case in which a higher interest stands in the way of the disclosure of certain documents. But such disclosure may not be refused merely in order to strengthen the position of the Administration or one of its officers (see Judgment 3688, under 29, and the case law cited therein).
The Tribunal has also found that the report of the body responsible for conducting a reassignment process […] is analogous not to the records of confidential discussions, but to the final report of a selection committee which may be disclosed to the staff member concerned, if necessary with redactions to ensure the confidentiality of third parties (see Judgment 3290, under 24).
Reference(s)
ILOAT Judgment(s): 3290, 3688
Keywords:
adversarial proceedings; confidential evidence; disclosure of evidence; duty to inform; evidence; right to be heard;
Judgment 3725
123rd Session, 2017
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the disciplinary measures imposed on him following an investigation into alleged misconduct.
Consideration 14
Extract:
IOS is a fact-finding investigative body. Its task is to collect, collate and analyse information objectively, impartially, fairly and with the highest degree of integrity and to determine thereupon whether there is sufficient information to substantiate a complaint on a balance of probabilities, examining both inculpatory and exculpatory information.
Keywords:
evidence; inquiry; investigation;
Consideration 17
Extract:
[P]ursuant to Administrative Circular 87, the task of the JDC is to determine whether the facts and conclusions of IOS provide sufficient bases of proof of misconduct beyond a reasonable doubt, and, in that way safeguards a staff member’s right to due process as it provides a forum in which the staff member may defend herself or himself and test the evidence provided by IOS against the standard of proof beyond a reasonable doubt.
Keywords:
disciplinary measure; due process; evidence;
Judgment 3692
122nd Session, 2016
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant who, at the material time, was working as a patent examiner, objects to three of his staff reports, submits that he was subjected to harassment and challenges the rejection of his request for an independent examination of several of his dissenting opinions on patent applications.
Consideration 19
Extract:
The complainant has not provided any substantive, cogent evidence proving that his line manager’s actions or statements belittled or humiliated him and that he therefore suffered harassment. The investigation conducted by the mediator did reveal the existence of considerable tension between the complainant and his line manager, which had impaired their professional relations and had ultimately created a strained working atmosphere. However, the facts established by the mediator, viewed in isolation or as a whole, do not lead the Tribunal to arrive at a different conclusion than that reached by him, as summarised in consideration 17 [...].
Keywords:
evidence; harassment; performance evaluation;
Judgment 3688
122nd Session, 2016
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to abolish her post and to separate her from service.
Consideration 18
Extract:
Whether the post was abolished for financial reasons is a question of fact. Those facts were within the knowledge of WHO and it must show that when it advanced financial reasons as a ground for the abolition of the complainant’s post this was genuine. It has not done so. In the absence of that evidence, it is determined that the complainant’s post was unlawfully abolished and the claim on this ground is well founded.
Keywords:
abolition of post; burden of proof; evidence;
Consideration 3
Extract:
The evidence which the complainant presents, particularly relating to the strained relationships in the Unit, may raise speculation as to whether the reorganization was merely a device to be rid of the complainant. However, there is not sufficient or sufficiently cogent evidence, as against speculation or surmise, to link the abolition of the complainant’s post and her separation from office to the alleged acts of prejudice and bias, retaliation, malice or bad faith perpetrated against her.
Keywords:
evidence;
Judgment 3669
122nd Session, 2016
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to select him for a post of Director.
Consideration 2
Extract:
The only decision impugned in the internal appeal was that appointment [...]. Thus the complainant’s complaint to this Tribunal concerns that decision. That is not to say evidence of events in his career cannot, in an evidentiary sense, be relied on in support of allegations of bias or prejudice in relation to the consideration of his candidacy for the position [...]. If the evidence is of substance, it can be relied upon.
Keywords:
evidence; selection procedure;
Judgment 3649
122nd Session, 2016
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision of the Director General of the IAEA to summarily dismiss him for serious misconduct.
Consideration 14
Extract:
[I]t 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).
Reference(s)
ILOAT Judgment(s): 2699
Keywords:
burden of proof; disciplinary measure; evidence; misconduct; standard of proof; standard of proof in disciplinary procedure;
Judgment 3640
122nd Session, 2016
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the disciplinary measure of his summary dismissal in the wake of a sexual harassment complaint filed against him by one of his colleagues.
Consideration 14
Extract:
[T]he complainant submits that the facts considered in these proceedings should have been confined to those directly concerning Ms M. and that it was therefore wrong also to take account of allegations related to his behaviour towards other persons. However, contrary to what the Appeals Board seems to believe, in the context of an inquiry into a sexual harassment complaint, it is by no means abnormal that the investigations conducted with a view to ascertaining the truth of the statements contained in the complaint should be widened to encompass other similar behaviour on the part of the alleged harasser. In fact, that is often the best means of corroborating the allegations of the complainant in an area where [...] it may be impossible to produce material evidence. More generally, it should be recalled that the question of whether or not harassment has occurred must be determined in the light of a careful examination of all the objective circumstances surrounding the events complained of by the alleged victim (see Judgments 2553, under 6, in fine, 3166, under 16, in fine, or 3233, under 6).
Reference(s)
ILOAT Judgment(s): 2553, 3166, 3233
Keywords:
evidence; harassment; inquiry; investigation; sexual harassment;
Consideration 15
Extract:
In addition, although the other acts taken into consideration had not led to the lodging of harassment complaints – in many cases this may be explained by the inherent risks of making an accusation against a supervisor – this did not pose a legal obstacle to their being taken into account. All that mattered here was that these acts had actually occurred, irrespective of the action which might have been taken on them at an earlier stage. The fact that they did not lead to the lodging of a complaint does not make them any less relevant as evidence corroborating the allegations of Ms M. (see, in respect of this latter point, Judgment 2521, under 10, in fine). The reprehensible conduct of an international civil servant may well give rise to a disciplinary measure taken by the employing organisation on its own initiative, regardless of whether one of his or her colleagues files a complaint. Item 11.3 of the Human Resources Manual, on disciplinary procedure, expressly provides for such a step, and in this connection the defendant organisation rightly points out that item 18.2, paragraph 5(d), of the Manual makes the management of UNESCO responsible for “resolving all instances of harassment as soon as it becomes aware of them, even if there are no formal complaints”. Since, in the instant case, acts of harassment concerning persons other than Ms M. had been expressly mentioned in the memorandum of the Director of the Bureau of Human Resources Management of 3 November 2011 notifying the complainant of the charges against him, in this respect the procedure followed bears no criticism.
Reference(s)
ILOAT Judgment(s): 2521
Keywords:
evidence; inquiry; investigation; sexual harassment;
Considerations 17-21
Extract:
[T]he complainant contends with greater cogency that he was never provided with the full content of the witness statements forming the basis of the accusations against him, nor was he informed of the witnesses’ names. It is true that the witness statements were not appended to the report drawn up at the end of the investigation and, as mentioned in a footnote in that document, the identity of the witnesses was deliberately not disclosed. [...]
[T]his strict observance of confidentiality by UNESCO might be seen as departing from the Tribunal’s established case law according to which “a staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him” and, “under normal circumstances, such evidence cannot be withheld [by this authority] on the grounds of confidentiality” (see Judgment 2229, under 3(b)), to which Judgment 3295, under 13, refers). [...]
[W]here disciplinary proceedings are brought against an official who has been accused of harassment, testimonies and other materials which are deemed to be confidential pursuant to provisions aimed at protecting third parties need not be forwarded to the accused official, but she or he must nevertheless be informed of the content of these documents in order to have all the information which she or he needs to defend herself or himself fully in these proceedings. As the Tribunal has already had occasion to state, in order to respect the rights of defence, it is sufficient for the official to have been informed precisely of the allegations made against her or him and of the content of testimony taken in the course of the investigation, in order that she or he may effectively challenge the probative value thereof (see Judgment 2771, under 18).
In the instant case, the investigation report contained an extremely detailed description of all the instances of unwelcome behaviour by the complainant towards the 21 women identified as victims of his conduct, and their names were given in almost all cases. The complainant was therefore plainly apprised of the content of all the testimony taken during the investigation and of the e-mails which he had not been allowed to see. Furthermore, although, as stated above, the identity of the witnesses was not revealed to him, it is obvious that most of the information recorded in the report could only have come from the 21 persons concerned themselves. The complainant was therefore given a real opportunity to dispute the various items of evidence gathered in the course of proceedings against him. Moreover, it is clear from the above-mentioned comments which he submitted to the Organization on 18 November 2011 to rebut the charges of which he had been notified, that he had in fact been able to prepare them without any particular difficulty. Indeed, he himself described these comments as “clarifications and objections to the accusations of sexual harassment against [him], based on the whole file, and in particular on the IOS investigation report”.
Reference(s)
ILOAT Judgment(s): 2229, 2771, 3295
Keywords:
adversarial proceedings; confidential evidence; disciplinary procedure; due process; evidence; harassment; inquiry; investigation; right to be heard; sexual harassment; witness;
Consideration 27
Extract:
[T]he Tribunal considers that the acts of which the complainant was accused are established by sufficiently strong evidence that, in accordance with the requirements of the case law on the subject, it has been proved “beyond reasonable doubt” that they actually took place (see Judgment 2786, under 9, and the reference to this requirement made in Judgment 969, under 16).
Reference(s)
ILOAT Judgment(s): 969, 2786
Keywords:
evidence;
Judgment 3439
119th Session, 2015
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully challenges the decision to terminate his appointment after the abolition of his post, as the Tribunal found that, due to the Organisation's failings, he had lost a valuable opportunity to be reassigned to another post.
Consideration 7
Extract:
"[I]t is desirable to refer to the approach taken by the Tribunal to findings of fact made by internal appeal bodies such as the HBA. As is evident from the Tribunal’s discussion in Judgment 2295, under 10, it is not the role of the Tribunal to reweigh the evidence before an internal appeal body. Moreover the findings of such an internal appeal body warrant deference. In addition, where any internal appeal body has heard evidence and made findings of fact, the Tribunal will only interfere in the case of manifest error."
Reference(s)
ILOAT Judgment(s): 2295
Keywords:
evidence; internal appeals body; manifest error; mistake of fact;
Judgment 3407
119th Session, 2015
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully challenges the implied decision to reject his claim against the new calculation of his pension rights.
Consideration 17
Extract:
If the Organisation wished to dispute the authenticity of the document produced by the complainant, [...] it should have investigated the matter more thoroughly, or obtained an expert opinion, which as the file shows, it failed to do.
Keywords:
admissibility of evidence; evidence;
Judgment 3347
118th Session, 2014
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision dismissing her harassment complaint and challenges the lawfulness of the internal appeals and investigation procedures.
Considerations 19 to 21
Extract:
"It is well settled that a staff member must have access to all evidence upon which a decision concerning that staff member is based. As the Tribunal observed in Judgment 3264, under 15:
“It is well established in the Tribunal’s case law that a ‘staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him’. Additionally ‘[u]nder normal circumstances, such evidence cannot be withheld on grounds of confidentiality’ (see Judgment 2700, under 6). It also follows that a decision cannot be based on a material document that has been withheld from the concerned staff member (see, for example, Judgment 2899, under 23).”
It is equally well settled that a statement in a staff regulation or other internal document that a report is confidential will not “shield a report […] from disclosure to the concerned official”. Moreover, “[i]n the absence of any reason in law for non-disclosure of the report, such non-disclosure constitutes a serious breach of the complainant’s right to procedural fairness” (Judgment 3264, under 16).
The fact that the complainant did not request a copy of the report of the IAOD, which investigated her claim of harassment, is irrelevant. She was entitled to receive a copy of it. Equally, it is not an answer to say that the complainant was given a summary of the report. In addition to the fact that she was entitled to the entire report, the summary did not contain any of the evidence upon which the conclusion was based. It simply stated that “[t]he IAOD investigation has not found facts that support the complainant’s allegations or that show she was entitled to have matters requested by her approved or that she was subjected to harassment, whether through a single incident or as an on-going pattern”. The complainant was effectively precluded from challenging the factual assertions and credibility of the witnesses interviewed and was left not knowing what evidence if any should be marshalled to counter the investigator’s conclusions.
As stated in the case law, a decision cannot be based on a material document that has been withheld from the staff member. In the present case, the failure to provide the complainant with a copy of the investigation report prior to the Director General taking his 25 June decision renders that decision fundamentally flawed. However, as that decision was overtaken by subsequent events, the only remedy today is an award of moral damages."
Reference(s)
ILOAT Judgment(s): 2700, 2899, 3264
Keywords:
due process; evidence; inquiry; investigation;
Judgment 3337
118th Session, 2014
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Considering that his harassment complaint has not been treated within a reasonable time, the complainant asks the Tribunal to sanction the Organisation for breach of its duty of care.
Considerations 11-12
Extract:
"The Tribunal has consistently stressed the serious nature of allegations of harassment in the workplace and the need for international organisations to investigate such allegations promptly and thoroughly. This is a function of the organisation’s duty of care to its staff members to uphold their dignity. [...] It is in relation to this obligation that the Tribunal, in Judgment 3069, under 12, for example, stated that international organisations have to ensure that an internal body that is charged with investigating and reporting on claims of harassment is properly functioning."
Reference(s)
ILOAT Judgment(s): 3069
Keywords:
disciplinary procedure; evidence; harassment; inquiry; investigation; organisation's duties;
Judgment 3297
116th Session, 2014
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant was dismissed for misconduct following a disciplinary investigation, which found that he had forged and falsified documents.
Judgment keywords
Keywords:
complaint dismissed; disciplinary measure; evidence; termination of employment;
Judgment 3295
116th Session, 2014
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaint concerning a disciplinary measure was dismissed by the Tribunal on the grounds that he had not demonstrated the existence of an error warranting the cancellation of the sanction.
Consideration 7
Extract:
"It is true that an organisation should investigate allegations of misconduct in a timely manner both in the interests of the person being investigated and the organisation. These interests include, among other things, safeguarding the reputations of both parties and ensuring that evidence is not lost."
Keywords:
consequence; delay; duty of care; evidence; inquiry; investigation; misconduct; organisation's duties;
Judgment 3253
116th Session, 2014
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns an unfavourable evaluation report. Her internal appeal having wrongly been rejected as irreceivable, the case is referred back to the internal appeal body.
Consideration 7
Extract:
"It is well settled that the burden of proof is on the sender to establish the date on which a communication was received. If that cannot be done (perhaps because the document was sent by a system of transmission that does not permit actual proof), the Tribunal will ordinarily accept what is said by the addressee about the date of receipt (see, generally, Judgments 447, consideration 2; 456, consideration 7; 723, consideration 4; 890, consideration 4; 930, consideration 8; 2473, consideration 4; and 2494, consideration 4)."
Reference(s)
ILOAT Judgment(s): 447, 456, 723, 890, 930, 2473, 2494
Keywords:
burden of proof; date of notification; evidence; internal appeal; lack of evidence; late appeal; time bar; time limit;
Judgment 3215
115th Session, 2013
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: As the complainant did not exhaust internal remedies concerning her claim of harassment and failed to prove negligence on the part of IAEA, the Tribunal dismissed her complaint.
Consideration 12
Extract:
"As discussed in Judgment 2804, negligence is the failure to take reasonable steps to prevent a foreseeable risk of injury. Liability in negligence is occasioned when the failure to take such steps causes an injury that was foreseeable. A person seeking damages for negligence bears the burden of establishing the factual foundation on which the claim is based."
Reference(s)
ILOAT Judgment(s): 2804
Keywords:
burden of proof; evidence; general principle; injury; liability; material damages; negligence; organisation's duties; professional accident; service-incurred; working conditions;
Judgment 3198
115th Session, 2013
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks the withdrawal from his personal file of the warnings concerning his productivity.
Consideration 25
Extract:
"According to the case law of the Tribunal, no damages will be ordered where a decision does not hamper a career and the matter which was complained of has been withdrawn (see Judgment 1380, under 11)."
Reference(s)
ILOAT Judgment(s): 1380
Keywords:
decision; evidence; lack of evidence; lack of injury; material damages; moral injury; no cause of action; professional injury; withdrawal of decision;
Judgment 3172
114th Session, 2013
Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the abolition of her post and the decision not to extend her appointment as procedurally flawed.
Consideration 16
Extract:
"A decision taken for an improper purpose is an abuse of authority. It follows that when a complainant challenges a discretionary decision, he or she by necessary implication also challenges the validity of the reasons underpinning that decision. In this respect, the Tribunal may examine the circumstances surrounding the abolition of the post to determine whether the impugned decision was tainted by abuse of authority."
Keywords:
abolition of post; abuse of power; breach; competence of tribunal; decision; discretion; evidence; misuse of authority;
Consideration 24
Extract:
"The Staff Regulations and Rules do not require the Joint Appeals Panel to explain why it considers a given document to be relevant. However, in this case, the Panel did explain both in its memorandum to the Administration and in its formal recommendation to the Executive Secretary that the requested documents were relevant to the disputed question of whether the decisions to abolish the complainant’s post and not to extend her appointment were tainted by bias or some other legally vitiating factor. By refusing to proffer the documents, even though this did not prevent the Panel from continuing the appeal and issuing its recommendation, the Commission breached the principles of due process, entitling the complainant to moral damages."
Keywords:
breach; disclosure of evidence; due process; evidence; general principle; moral injury; organisation's duties; procedural flaw;
Judgment 3138
113th Session, 2012
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
It is certainly regrettable that the complainant’s professional mailbox was consulted in her absence. However, the evidence in the file shows that she was informed that such a technical check was imminent and – naturally – it had to be carried out urgently.
Keywords:
due process; email; evidence;
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