Burden of proof (148,-666)
You searched for:
Keywords: Burden of proof
Total judgments found: 245
1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 | next >
Judgment 4901
138th Session, 2024
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his performance evaluation for 2018 rating such performance as “fair”.
Consideration 18
Extract:
The Tribunal’s case law has often emphasized that a staff member alleging abuse of authority bears the burden of establishing the improper purposes for which the authority was exercised (see, for example, Judgments 4618, consideration 10, 4382, consideration 13, and 4146, consideration 10).
Reference(s)
ILOAT Judgment(s): 4146, 4382, 4618
Keywords:
abuse of power; burden of proof;
Judgment 4897
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her appraisal report for 2018.
Consideration 10
Extract:
[U]nder the Tribunal’s settled case law, bad faith cannot be presumed and must be proven by the evidence (see, for example, Judgments 4675, consideration 6, 4333, consideration 15, 4161, consideration 9, 3902, consideration 11, or 2800, consideration 21).
Reference(s)
ILOAT Judgment(s): 2800, 3902, 4161, 4333, 4675
Keywords:
bad faith; burden of proof;
Judgment 4893
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2008-2009.
Consideration 8
Extract:
More recent case law of the Tribunal makes it clear that moral damages are not awarded when not substantiated. Moral damages arise from moral injury. It is necessary for a complainant to establish evidence of the injury suffered, of the alleged unlawful act adversely affecting her or him, and of the causal link between the unlawful act and the injury (see Judgments 4637, consideration 19, 4158, consideration 7, 4157, consideration 9, and 4156, considerations 5 and 6). In the present case, the complainant does not demonstrate with persuasive evidence that any of the events for which he expressly or impliedly seeks moral damages caused him moral injury, let alone demonstrates a causal link between the alleged unlawful act adversely affecting him and the damage suffered. Accordingly, his various claims for moral damages must be rejected.
Reference(s)
ILOAT Judgment(s): 4156, 4157, 4158, 4637
Keywords:
burden of proof; moral injury;
Judgment 4892
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her staff report for 2008-2009 and the decision not to initiate a harassment procedure against her reporting officer.
Consideration 6
Extract:
The third subheading referred to earlier is that “[s]landerous/libellous comments have been disseminated about me”. This is a contention concerning the conduct of Mr T.E. The only relevance of this plea in relation to the staff report would be if the complainant was able to establish that Mr T.E. had been actuated by bias or ill will towards her which infected his assessment of her performance. In the main, the evidence relied upon by the complainant concerns matters of detail including comments to which she takes exception or comments that she views as contradictory, but nonetheless views as proof of bias or ill will. None of the evidence, either in isolation or in aggregate, demonstrates bias or ill will on the part of Mr T.E. in the preparation of the report, which was also the considered conclusion of the Appeals Committee’s majority. While the Tribunal acknowledges the difficulty in proving bias or ill will (see, for example, Judgments 2318, consideration 4, and 2259, consideration 13), nonetheless the burden of doing so falls on the complainant (see Judgments 4745, consideration 12, and 4010, consideration 9). In these proceedings, she has failed to do so.
Reference(s)
ILOAT Judgment(s): 2259, 2318, 4010, 4745
Keywords:
bias; burden of proof; performance report; rating;
Judgment 4891
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2004-2005.
Consideration 12
Extract:
With respect to his third argument to the effect that there was an absence of objective evaluation since the staff report included subjective, arbitrary and personal elements going beyond the reporting officer’s discretionary power, the complainant has simply not discharged his burden of providing evidence of sufficient quality and weight to persuade the Tribunal that his allegations of bias or partiality were well founded (see, for example, Judgments 4713, consideration 12, 4543, consideration 8, and 3380, consideration 9). The complainant cannot point to any precise indication of bias within the staff report. The comments of the reporting officer indeed point in the opposite direction and include many that praised the complainant’s performance when appropriate.
Reference(s)
ILOAT Judgment(s): 3380, 4543, 4713
Keywords:
bias; burden of proof;
Consideration 17
Extract:
The Tribunal has long recognized that “international civil servants are entitled to expect that their cases will be considered by internal appeal bodies within a reasonable timeframe and that failure to comply with this requirement of expeditious proceedings constitutes a failing on the part of the employer organisation” (see Judgments 4655, consideration 21, 3510, consideration 24, and 2116, consideration 11). An organisation is indeed expected to process internal appeals with the requisite promptness and diligence, and it has a positive obligation to see to it that such procedures move forward with reasonable speed (see, for example, Judgments 4173, consideration 12, and 3755, consideration 15).
Under the Tribunal’s case law, the amount of compensation for unreasonable delay is ordinarily influenced by two considerations, one being the length of the delay and the other the effect of the delay (see, for example, Judgments 4655, consideration 21, and 3160, consideration 17). In Judgment 4799, consideration 7, the Tribunal recalled that its recent case law holds that an unreasonable delay in an internal appeal is not sufficient in itself to award moral damages. The complainant must also articulate the adverse effects which the delay has caused (see also Judgment 4563, consideration 14). Furthermore, the Tribunal has regularly stated that, in terms of damages, a complainant seeking compensation must provide clear evidence of the alleged unlawful act, of the injury suffered and of the causal link between the unlawful act and the injury, and that she or he bears the burden of proof in this regard (see Judgments 4556, consideration 12, 4158, consideration 4, 4157, consideration 7, and 4156, consideration 5).
However, the complainant has failed to provide any persuasive evidence of the moral injury stemming from the delay notwithstanding it was over five years and was unreasonable.
Reference(s)
ILOAT Judgment(s): 2116, 3160, 3510, 3755, 4157, 4158, 4173, 4556, 4563, 4655, 4799
Keywords:
burden of proof; delay in internal procedure; moral injury;
Judgment 4890
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2004-2005.
Consideration 13
Extract:
Turning to the moral damages claimed by the complainant, the Tribunal observes that they are limited to the impact of the undue delay in handling the internal appeal process. […]
But the Tribunal’s case law has recognized that the amount of compensation for unreasonable delay is ordinarily influenced by two considerations, one being the length of the delay and the other the effect of the delay (see, for example, Judgments 4655, consideration 21, and 3160, consideration 17). In Judgment 4799, consideration 7, the Tribunal recalled that its recent case law holds that an unreasonable delay in an internal appeal is not sufficient in itself to award moral damages. The complainant must also articulate the adverse effects which the delay has caused (see also Judgment 4563, consideration 14). Furthermore, the Tribunal has regularly stated that, in terms of damages, a complainant seeking compensation must provide clear evidence of the alleged unlawful act, of the injury suffered and of the causal link between the unlawful act and the injury, and that she or he bears the burden of proof in this regard (see Judgments 4556, consideration 12, 4158, consideration 4, 4157, consideration 7, and 4156, consideration 5).
The complainant has not discharged this burden in the present case. The evidence of any injury suffered in terms of moral damages or of the detrimental effect of the delay on his situation is barely articulated, if at all, in his submissions. He is therefore not entitled to any compensation in this regard.
Reference(s)
ILOAT Judgment(s): 3160, 4156, 4157, 4158, 4556, 4563, 4655, 4799
Keywords:
burden of proof; delay in internal procedure; moral injury;
Consideration 12
Extract:
The complainant bears the burden to provide evidence of sufficient quality and weight to persuade the Tribunal that his allegations of bias are well founded (see, for example, Judgments 4713, consideration 12, 4543, consideration 8, and 3380, consideration 9).
Reference(s)
ILOAT Judgment(s): 3380, 4543, 4713
Keywords:
bias; burden of proof;
Judgment 4886
138th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the deferral of his application for clearance to carry a service weapon.
Consideration 7
Extract:
The complainant requests that UNESCO be ordered to pay him damages for the excessive delay in the internal appeal procedure.
As an exception to what has just been stated, this claim must be examined because international civil servants are, as a matter of principle, entitled to expect that their case will be dealt with by the internal appeal bodies within a reasonable time (see, for example, Judgments 3510, consideration 24, or 2116, consideration 11). A failure to comply with this need for expeditious proceedings, where wrongful, warrants compensation, the amount of which, under the Tribunal’s case law, ordinarily depends on two essential considerations, namely the length of the delay and the effect of the delay on the employee concerned (see, for example, Judgments 4178, consideration 15, 4100, consideration 7, or 3160, consideration 17).
In this case, the delay of nearly four years between the submission of the first internal appeal to the Appeals Board on 3 April 2018 and the adoption of the final decision of 14 March 2022 is, in absolute terms, clearly excessive.
However, firstly, the Tribunal notes that the complainant, who asked the Appeals Board three times to extend the time limit for filing his submissions, for a total period of nine months, himself caused some of the delay in the procedure, and, moreover, it may seem reasonable, in view of the extensions obtained by the complainant, that they were also granted to the Organization. Moreover, the Organization explains, convincingly in the Tribunal’s view, that the functioning of the Appeals Board was considerably disrupted, in 2020 and 2021, by the successive lockdowns ordered by the French authorities owing to the Covid-19 pandemic, which, in particular, affected the Board’s capacity to hold its hearings as usual. Lastly, it must be pointed out that, given the abandonment of the process of arming security officers following the delivery of the IOS report of October 2018, the complainant’s internal appeals had become moot shortly after their filing, with the result that the procedural delay was not liable to cause him substantial moral injury (see, in this connection, Judgments 4727, consideration 14, and 4635, consideration 8).
This being so, the Tribunal considers that, in the particular circumstances of the case, there is no reason to order UNESCO to pay compensation to the complainant under that head.
Reference(s)
ILOAT Judgment(s): 2116, 3160, 3510, 4100, 4178, 4635, 4727
Keywords:
burden of proof; delay; internal procedure; moral injury;
Judgment 4879
138th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the deferral of his application for clearance to carry a service weapon.
Consideration 6
Extract:
Under the Tribunal’s case law, an unlawful decision does not entitle the staff member concerned to moral damages unless that decision has caused her or him more severe injury than that resulting from the unlawfulness itself (see, in particular, Judgments 4156, consideration 5, and 1380, consideration 11).
In the present case, and bearing in mind that the contested decision had no tangible effect, the Tribunal considers that any flaws tainting that decision are not, in any event, such as to have caused the complainant such particular injury.
The position would only be different if the complainant were to establish that the deferral of his application for clearance had been motivated, as he submits, by malicious bias against him that formed part of a pattern of moral harassment and retaliatory measures of which he accuses the Chief of the Security and Safety Section.
Reference(s)
ILOAT Judgment(s): 1380, 4156
Keywords:
burden of proof; moral injury;
Judgment 4867
138th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the determination of her leave status during her absence from work as well as the decision, taken as a result of her internal appeal, not to award her moral damages and to grant her up to 2,500 Swiss francs in legal costs.
Consideration 5
Extract:
Bias and abuse of authority must be proven and the complainant bears the burden of proof (see Judgment 4688, consideration 10, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 4688
Keywords:
abuse of power; bias; burden of proof;
Consideration 5
Extract:
The complainant alleges retaliation, but her allegation is generic and unsubstantiated. A mere assumption or suspicion of retaliation does not meet the requisite standard of proof, the onus of which is borne by the complainant (see Judgments 4391, consideration 13, and 4363, consideration 12).
Reference(s)
ILOAT Judgment(s): 4363, 4391
Keywords:
burden of proof; retaliation;
Consideration 6
Extract:
[M]oral prejudice, which includes, inter alia, emotional distress, anxiety, stress, anguish and hardship (see Judgment 4644, consideration 7) must be proven, and the complainant bears the burden of proof. The complainant has not established to the Tribunal’s satisfaction a causal link between the Organization’s conduct and her suffering.
Reference(s)
ILOAT Judgment(s): 4644
Keywords:
burden of proof; moral damages;
Judgment 4857
138th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant submits that the Organization committed serious misconduct that breached his rights and considers, in particular, that he was subjected to harassment.
Consideration 8
Extract:
[A]s the Tribunal has always made clear since its earliest judgments, its jurisdiction is limited and, as such, it is “bound to apply the mandatory provisions governing its competence” (see Judgment 67, consideration 3, cited in particular in Judgments 4540, consideration 4, 4458, consideration 12, and 2657, consideration 5). It follows that the Tribunal cannot rule on a complaint before it unless its competence to hear it has been clearly established.
Of course, it is ordinarily the complainant’s responsibility to establish that competence, and consequently it is for a complainant alleging to be an official of an international organisation to produce the contract signed with that organisation as evidence of that status (see Judgments 2503, consideration 4, 1964, consideration 3, and 339, consideration 1).
Reference(s)
ILOAT Judgment(s): 67, 339, 1964, 2503, 2657, 4458, 4540
Keywords:
burden of proof; vested competence;
Judgment 4856
138th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to dismiss him for misconduct.
Consideration 3
Extract:
As this complaint challenges a disciplinary decision, the Tribunal recalls its settled case law, that the burden of proof in such cases rests on an organization to prove the underlying allegations beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14).
Reference(s)
ILOAT Judgment(s): 3649
Keywords:
beyond reasonable doubt; burden of proof; disciplinary measure; standard of proof;
Judgment 4855
138th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the appointment of another official to the position of Deputy Director, Investment Centre Division, following a competition.
Consideration 18
Extract:
Insofar as the complainant alleges that his non-selection was motivated by bad faith, prejudice and discrimination, this has not been proven and cannot be presumed (see Judgment 4352, consideration 17, and the case law cited therein). It is to be recalled that the ultimate decision to appoint Mr P. was based on the recommendation of the Interview Panel and it would be necessary for the complainant to have established, in these proceedings, that its consideration and recommendation was infected by bias, prejudice or discrimination of the type alleged against the Organization more generally.
Reference(s)
ILOAT Judgment(s): 4352
Keywords:
bad faith; bias; burden of proof; competition; discrimination; prejudice; recommendation; selection board; selection procedure;
Judgment 4854
138th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the appointment of another official to the position of Director, Office of Strategy, Planning and Resources Management, following a competitive selection process.
Consideration 18
Extract:
Insofar as the complainant alleges that his non-selection was motivated by bad faith, prejudice and discrimination, this has not been proven and cannot be presumed (see Judgment 4352, consideration 17, and the case law cited therein). It is to be recalled that the ultimate decision to appoint Ms C. was based on the recommendation of the Interview Panel and it would be necessary for the complainant to have established, in these proceedings, that its consideration and recommendation was infected by bias, prejudice or discrimination of the type alleged against the Organization more generally.
Reference(s)
ILOAT Judgment(s): 4352
Keywords:
bad faith; burden of proof; competition; discrimination; prejudice; recommendation; selection board; selection procedure;
Judgment 4852
138th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the appointment, by lateral transfer, of another official to the position of Director, FAO Liaison Office in Geneva.
Considerations 12, 14-15
Extract:
What the complainant is arguing is, in substance, that in appointing Ms R.B. the Director-General was making a choice between her and the complainant (and perhaps others), and the failure to choose him was infected by, amongst other things, bias and prejudice towards him. The difficulty with this argument is that there is no direct evidence that such a choice was being made nor can an inference reasonably be drawn that it was.
[…]
As the Tribunal observed in Judgment 4690, consideration 13, when addressing the statement made by the Tribunal in Judgment 3669, consideration 12, and similar cases regarding the reliance on earlier evidence of bias and prejudice to prove the true character of alleged bias and prejudice in later conduct:
“There is probably no overarching principle which will determine the admissibility of evidence concerning earlier events in every case. At least in a case such as the present, the question of admissibility should be determined by reference to the specific facts of the case.”
In this case, the evidence of the complainant and the arguments based on it about prior bias and prejudice is not, in the circumstances, relevant to the legality of the decision to transfer Ms R.B. There was no choice being made of the type on which the complainant’s arguments rely. Accordingly, much of the argument of the complainant is not founded and lacks any admissible evidentiary underpinning.
Reference(s)
ILOAT Judgment(s): 3669, 4690
Keywords:
appointment without competition; bias; burden of proof; evidence; prejudice;
Judgment 4850
138th Session, 2024
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to terminate his fixed-term appointment for reasons of health.
Consideration 4
Extract:
[T]he Appeals Board carefully analysed, in detail and over several pages, the evidence concerning the factual question of whether there had been notification to the complainant. It observed, correctly, that the burden of proof that notification had been given fell on the person who sent the document, in this case the Organization, citing Judgment 3871, consideration 9. Its analysis and conclusion that the Organization had not proved that notification had been given is unexceptionable and certainly does not reveal a manifest error. In the impugned decision of 23 August 2021, the Director General accepted the pivotal significance of the factual question about notification. […] [The Director General] challenged the reasoning of the Appeal Board. But, in the face of that reasoning, his analysis is unpersuasive.
Reference(s)
ILOAT Judgment(s): 3871
Keywords:
burden of proof; evidence; executive head; medical opinion; notification;
Consideration 9
Extract:
The Tribunal is satisfied the complainant suffered a moral injury as a result of being denied the right of review of the medical assessment leading directly to the termination of his employment, effective 1 October 2018. He is entitled to moral damages which are assessed in the sum of 10,000 Swiss francs.
Keywords:
burden of proof; duty to inform; loss of opportunity; medical opinion; moral damages; notification; termination of employment for health reasons;
Judgment keywords
Keywords:
burden of proof; complaint allowed; complaint allowed in part; duty of care; duty to inform; loss of opportunity; mandatory time limit; medical opinion; notification; termination of employment for health reasons;
Judgment 4849
138th Session, 2024
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to convert his fixed-term appointment into a continuing or permanent appointment.
Consideration 10
Extract:
The second contention is based on a premise that there was a practice that a staff member on a fixed-term contract would, at the end of their fifth year of appointment, be offered the choice of having their contract converted into a continuing appointment at that point, or wait a further two years before having their contract converted into a permanent appointment. The complainant contends his treatment did not accord with this practice and involved unequal treatment. But again, in the main, the complainant supports the existence of this practice, and its breach, by generalised assertions, though he does descend into some specifics. However, the Tribunal’s case law requires that “allegations of discrimination and unequal treatment can lead to redress on condition that they are based on precise and proven facts” (see, for example, Judgment 4238, consideration 5). The concept of “precise and proven facts” entails sufficiently detailed and persuasive evidence to establish that there had been unequal treatment.
Reference(s)
ILOAT Judgment(s): 4238
Keywords:
burden of proof; duration of appointment; evidence; extension of contract; permanent appointment; practice; renewal of contrat; unequal treatment;
Consideration 9
Extract:
Fundamental to the first contention is the fact that the decision, as explained by the complainant in his pleas, “was based on the personal prejudice which perniciously lay hidden behind the unlawful initiation of the unlawful investigation process against [him]”. This is a reference to the investigation leading to the laying of charges of misconduct against the complainant on 14 December 2016. This is tantamount to a claim of bad faith which must be proven and cannot be presumed (see, for example, Judgment 4753, consideration 13). But beyond generalised assertions, the complainant provides no persuasive evidence which directly, or inferentially, establishes personal prejudice of the type relied on.
Reference(s)
ILOAT Judgment(s): 4753
Keywords:
bad faith; bias; burden of proof; evidence; personal prejudice;
Consideration 11
Extract:
Cases can arise where an inference can be drawn that an alleged practice does exist, largely because of the refusal or failure of the organisation to provide documents requested by a complainant intended to prove the existence of that practice. One example, relied on by the complainant, was Judgment 3415, particularly considerations 6 to 9. In the present case, the complainant recounts his unsuccessful attempts to obtain, during the processes internal to the organisation, documentation intended to prove the existence of the practice. However, what he has failed to do in these proceedings before the Tribunal is exercise, if necessary, his ability under the Tribunal’s Rules, specifically under Article 9, paragraph 6, to secure documents from WIPO which would prove, in an evidentiary sense, the existence of the practice he asserts. The inference drawn in Judgment 3415 was substantially based on the refusal of the defendant organisation to produce the discovery documents requested by the complaint in the proceedings before the Tribunal. In that matter, the Tribunal made it clear that the defendant organisation should have, in the face of the discovery request, produced the documents. In the present case, the absence of a request or, ultimately if necessary, procuring an order under Article 9, paragraph 6, militates against drawing an inference that the asserted practice existed.
Reference(s)
ILOAT Judgment(s): 3415
Keywords:
burden of proof; disclosure of evidence; evidence; extension of contract; permanent appointment; practice; renewal of contrat;
Judgment 4848
138th Session, 2024
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests WIPO’s decisions (i) to advertise his post; (ii) to organise a selection process to fill his post; (iii) not to appoint him to the post without competition; (iv) to renew his fixed-term appointment for three months only; (v) to restructure his division; and (vi) to modify/redefine his post.
Consideration 8
Extract:
The other and related decisions apparent from the letter of 31 January 2018 were the decisions to offer the complainant a three-month extension of his fixed-term appointment and to advertise the position of Director of the (about to be created) CMD. In his pleas, the complainant challenges the creation of this position contending, amongst other things, it was not materially different to the position he then formally occupied and was the product of a reorganisation which was illusory rather than substantial. It is unnecessary to repeat the various ways this is put by the complainant. However, mention should be made of a submission, which is tantamount to an allegation that the reorganisation was not a bona fide exercise of an undoubtedly wide discretionary power the executive head of an international organisation has to institute administrative and other structural changes within the organisation with consequential effects on existing posts, including their redefinition or abolition (see, for example, Judgments 4599, considerations 11 and 12, 4353, consideration 7, 3238, consideration 7, and 3169, consideration 7). This is, in substance, an allegation of bad faith. However, bad faith may not be presumed, and the burden of proof is on the party that pleads it (see Judgments 4682, consideration 3, 4353, consideration 12, and 2800, consideration 21). In the present case, there is not a scintilla of evidence that the reorganisation decision did not involve a bona fide exercise of the wide discretionary power of the executive head. This plea is unfounded.
Reference(s)
ILOAT Judgment(s): 2800, 3169, 3238, 4353, 4599, 4682
Keywords:
abolition of post; bad faith; burden of proof; difference; discretion; duration of appointment; extension of contract; fixed-term; post description; renewal of contrat; reorganisation; title of post;
Judgment 4842
138th Session, 2024
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the application to her salary of the new salary scale for 2018.
Consideration 4
Extract:
[T]he Tribunal recalls that its settled case law has it that the complainant bears the burden of proving a lack of impartiality on the part of one or several members of an internal appeals body. In the present case, the complainant clearly does not adduce the requisite proof, given that mere suspicions and allegations unsupported by tangible evidence are insufficient to establish a lack of partiality on the part of all or some members of the Joint Appeals Committee (see, for example, Judgments 4662, consideration 13, and 4553, consideration 7).
Reference(s)
ILOAT Judgment(s): 4553, 4662
Keywords:
burden of proof; impartiality; internal appeals body;
Judgment 4841
138th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to abolish the post she used to hold and not to renew her contract beyond 31 December 2020.
Consideration 5
Extract:
The Tribunal notes that bias, prejudice, and bad faith cannot be presumed, they must be proven and the complainant bears the burden of proof (see Judgment 4688, consideration 10, and the case law cited therein). Although evidence of personal prejudice is often concealed and such prejudice must be inferred from surrounding circumstances, that does not relieve complainants, who bear the burden of proving their allegations, from introducing evidence of sufficient quality and weight to persuade the Tribunal. Mere suspicion and unsupported allegations are clearly not enough, the less so where, as here, the actions of the organization, which are alleged to have been tainted by personal prejudice, are shown to have a verifiable objective justification (see Judgment 4745, consideration 12).
Reference(s)
ILOAT Judgment(s): 4688, 4745
Keywords:
bad faith; bias; burden of proof; prejudice;
Judgment 4840
138th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to renew her fixed-term contract due to underperformance after placing her on a three-month Performance Improvement Plan.
Consideration 34
Extract:
[T]he complainant claims material damages in an amount equal to two years’ salary, benefits, step increases, pension contributions, and all other entitlements and emoluments that she would have received had she not been wrongfully separated from service. This claim is not substantiated in the complainant’s proceedings be it in terms of years sought or of her expectations within the Organization. Given that any fixed-term contract the complainant ever held with IOM never exceeded one year and that the total length of her services with the Organization lasted approximately five years, the Tribunal considers that this claim is not justified and overstated in the circumstances.
An award of material damages in an amount equivalent to nine months’ salary, including benefits, entitlements and emoluments, represents a fair and reasonable compensation in the present case. IOM will be ordered to pay this amount to the complainant, plus interest at the rate of 5 per cent per annum from 1 November 2019, less any amounts she may have earned from other employment during that period of nine months beginning on 1 November 2019.
Keywords:
breach; burden of proof; due process; fixed-term; injury; material damages; non-renewal of contract;
Consideration 35
Extract:
The complainant also claims moral damages in an amount equal to no less than one year of her former gross salary and benefits. But the Tribunal’s case law states that in respect of damages, the complainant bears the burden of proof and that she must provide evidence of the alleged injury (see, for example, Judgment 4156, consideration 5). It suffices to note that in the present situation, notwithstanding this precedent, the complainant did not provide any specification of the moral injury she allegedly suffered nor evidence supporting its existence. This claim must consequently be rejected.
Reference(s)
ILOAT Judgment(s): 4156
Keywords:
breach; burden of proof; due process; fixed-term; injury; moral damages; non-renewal of contract;
1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 | next >
|
