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Right to be heard (747,-666)
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Keywords: Right to be heard
Total judgments found: 45
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Judgment 4900
138th Session, 2024
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges, in his first complaint, the partial rejection of his harassment complaint before investigation and, in his fourth complaint, the rejection of his harassment complaint after investigation.
Considerations 35, 43-44
Extract:
[T]he Investigating Subpanel did not disclose to the complainant in any manner the content of the testimony given by Ms F., the only person interviewed during the investigation apart from the complainant and Mr T.S., which prevented the complainant from commenting on that testimony if necessary.
In his complaint before the Tribunal, the complainant submits that this constitutes a breach of the adversarial principle contrary to the Tribunal’s case law, in particular to what the Tribunal recalled in Judgment 3065, considerations 7 and 8 [...]
As is evident from the above considerations, the Tribunal dismissed the reasoning followed in this case by both the Director-General in her decision and the JAAB in its opinion, according to which the adversarial principle did not apply at the investigation stage of a harassment procedure and that there was no need to disclose interview notes to the staff member concerned at that stage given that the rules applicable within the Organization did not so require.
It follows from the foregoing that, owing to that procedural flaw and as the Tribunal has already found, for example, in [...] Judgments 4781 and 4739 in similar situations to that of the present case, the Director-General’s impugned decision of 21 October 2021 as well as the previous decision of 16 November 2020 on which it is based must also be set aside [...].
Reference(s)
ILOAT Judgment(s): 3065, 4739, 4781
Keywords:
adversarial proceedings; harassment; inquiry; right to be heard;
Judgment 4895
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the date of his promotion with retroactive effect and seeks promotion from an earlier date.
Consideration 11
Extract:
[T]he Tribunal notes first of all that, in the absence of an express provision to the contrary, all that the right to a hearing requires is that the complainant should be free to put his case, either in writing or orally; the appeal body is not obliged to offer him both possibilities (see, in particular, Judgments 4743, consideration 13, 3447, consideration 8, and 3023, consideration 11). It is plain from the written submissions in this regard that the complainant had ample opportunity to present his allegations and arguments in writing and that he was informed, by letter of 19 November 2019, that the chairperson of the chamber to which the internal appeal had been referred had decided not to hold a hearing, since the matter could be properly addressed on the basis of the documentation already filed by the complainant with the Committee.
In this case, the right to be heard orally by the Appeals Committee was indeed applicable at the time when the complainant filed his internal appeal on 23 May 2014. However, following the amendments introduced to the Implementing Rule for Articles 106 to 113 of the Service Regulations by Administrative Council decision CA/D 7/17 of 29 June 2017, which entered into force on 1 July 2017, Article 8(1) of the Service Regulations replaced the right to be heard orally with an option for the chairperson or presiding member of the chamber dealing with the appeal to hold a hearing if she or he considers it useful. According to the Tribunal’s case law, any amendment to the procedural rules applicable before an internal appeals body applies directly to cases pending before that body, unless a transitional provision provides otherwise (see, in particular, Judgment 3895, consideration 4). This not being the case in this instance, the chairperson of the chamber concerned, when he ruled on this point on 19 November 2019, correctly applied Article 8 of the aforementioned Service Regulations, in their new version then in force.
Reference(s)
ILOAT Judgment(s): 3023, 3447, 3895, 4743
Keywords:
applicable law; internal appeal; internal appeals body; oral proceedings; right to be heard;
Judgment keywords
Keywords:
applicable law; competence of tribunal; complaint dismissed; discretion; internal appeal; internal appeals body; judicial review; oral proceedings; order; promotion; retroactivity; right to be heard; work appraisal;
Judgment 4837
138th Session, 2024
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who separated from service, contests the placement in his personnel file of a letter stating that he was found to have committed sexual harassment during his employment and that, had he not separated from service, he would have been imposed the disciplinary measure of a final letter of warning.
Considerations 18-21
Extract:
[T]he complainant submits, in substance, that the Appeals Commission prevented him from attending the hearing of the witnesses it called to permit him to test the evidence, and, in any event, that he was not even provided with the statements of such witnesses […] The Federation relies on Judgment 4408, where the Tribunal concluded, in consideration 4, that an interview conducted as an “investigative measure” to enable an appeal body to obtain general information not relating specifically to the situation of the complainant was not a hearing where the complainant was required to be present or where the content of the discussion had to be disclosed to him or her […] It is obvious from the content of the Appeals Commission report that the information sought by the Commission was not of a general nature and that it was relating specifically to the investigation and disciplinary procedure at issue. In these circumstances, the Tribunal considers that the complainant had a right, at least to have been apprised of the content of the interviews and to provide his comments if he so wished. Since this was not done, the complainant’s right to be heard was violated […] For this, which is an infringement of due process, he will be awarded 15,000 Swiss francs.
Reference(s)
ILOAT Judgment(s): 4408
Keywords:
due process; internal appeal; internal appeals body; internal procedure; moral damages; oral proceedings; right to be heard; witness;
Judgment 4836
138th Session, 2024
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his non-selection for several positions.
Considerations 13-17
Extract:
[T]he complainant submits, in substance, that the Appeals Commission prevented him from attending the hearing of the witnesses it called to permit him to test the evidence, and, in any event, that he was not even provided with the statements of such witnesses […] The Federation relies on Judgment 4408, where the Tribunal concluded, in consideration 4, that an interview conducted as an “investigative measure” to enable an appeal body to obtain general information not relating specifically to the situation of the complainant was not a hearing where the complainant was required to be present or where the content of the discussion had to be disclosed to him or her […] It is obvious from the content of the Appeals Commission report that the information sought by the Commission was not of a general nature and that it was relating specifically to the selection procedures at issue. In these circumstances, the Tribunal considers that the complainant had a right, at least to have been apprised of the content of the interviews and to provide his comments if he so wished. Since this was not done, the complainant’s right to be heard was violated […] For this, which is an infringement of due process, he will be awarded 15,000 Swiss francs.
Reference(s)
ILOAT Judgment(s): 4408
Keywords:
due process; internal appeal; internal appeals body; internal procedure; moral damages; oral proceedings; right to be heard; witness;
Judgment 4835
138th Session, 2024
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to rescind an offer of employment that had been extended to him, on the basis that he had been disciplined for sexual misconduct.
Considerations 4-6
Extract:
[T]he complainant submits, in substance, that the Appeals Commission prevented him from attending the hearing of the witnesses it called to permit him to test the evidence, and, in any event, that he was not even provided with the statements of such witnesses […] The Federation relies on Judgment 4408, where the Tribunal concluded, in consideration 4, that an interview conducted as an “investigative measure” to enable an appeal body to obtain general information not relating specifically to the situation of the complainant was not a hearing where the complainant was required to be present or where the content of the discussion had to be disclosed to him or her […] It is obvious […] that the Commission interviewed these Federation staff on various issues which touched and concerned “the circumstances in which the offer was rescinded”. This tends to demonstrate that the information sought by the Commission was not of a general nature, and that it was relating specifically to the rescission of the offer of employment at issue. In these circumstances, the Tribunal considers that the complainant had a right, at least to have been apprised of the content of the interviews and to provide his comments if he so wished. Since this was not done, the complainant’s right to be heard was violated […] For this, which is an infringement of due process, he will be awarded 15,000 Swiss francs.
Reference(s)
ILOAT Judgment(s): 4408
Keywords:
due process; internal appeal; internal appeals body; internal procedure; moral damages; oral proceedings; right to be heard; witness;
Judgment 4834
138th Session, 2024
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the non-extension of his fixed-term appointment.
Considerations 12-15
Extract:
[T]he complainant submits, in substance, that the Appeals Commission prevented him from attending the hearing of the witnesses it called to permit him to test the evidence, and, in any event, that he was not even provided with the statements of such witnesses […] The Federation relies on Judgment 4408, where the Tribunal concluded, in consideration 4, that an interview conducted as an “investigative measure” to enable an appeal body to obtain general information not relating specifically to the situation of the complainant was not a hearing where the complainant was required to be present or where the content of the discussion had to be disclosed to him or her […] While the Appeals Commission’s report is almost silent about the content of those interviews, its statement that “[…]” tends to demonstrate that the interviews were not about the Federation’s budgetary framework but about the specific situation of the complainant and the decision not to extend his contract. In these circumstances, the Tribunal considers that the complainant had a right, at least to have been apprised of the content of the interviews and to provide his comments if he so wished. Since this was not done, the complainant’s right to be heard was violated […] For this, which is an infringement of due process, he will be awarded 15,000 Swiss francs.
Reference(s)
ILOAT Judgment(s): 4408
Keywords:
due process; internal appeal; internal appeals body; internal procedure; moral damages; oral proceedings; right to be heard; witness;
Judgment 4832
138th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose on her the disciplinary sanction of demotion by two grades.
Considerations 27-29 and 36
Extract:
Firm and constant precedent of the Tribunal has it that, before adopting a disciplinary measure, an international organization must give the staff member concerned the opportunity to defend herself or himself in adversarial proceedings (see, for example, Judgment 3875, consideration 3).
This principle is particularly important during the investigative stage of disciplinary proceedings as the Tribunal recalled it in the following terms in Judgment 4011, consideration 9:
“The basic applicable principles regarding the right to due process at the investigative stage of disciplinary proceedings were stated by the Tribunal as follows in Judgment 2771, consideration 15:
‘The general requirement with respect to due process in relation to an investigation – that being the function performed by the Investigation Panel in this case – is as set out in Judgment 2475, namely, that the ‘investigation be conducted in a manner designed to ascertain all relevant facts without compromising the good name of the employee and that the employee be given an opportunity to test the evidence put against him or her and to answer the charge made’. At least that is so where no procedure is prescribed. Where, as here, there is a prescribed procedure, that procedure must be observed. Additionally, it is necessary that there be a fair investigation, in the sense described in Judgment 2475 and that there be an opportunity to answer the evidence and the charges.’”
Of course, due process must also be observed at all other stages of disciplinary proceedings. Accordingly, the following was stated in Judgment 2786, consideration 13:
“Due process requires that a staff member accused of misconduct be given an opportunity to test the evidence relied upon and, if he or she so wishes, to produce evidence to the contrary. The right to make a defence is necessarily a right to defend oneself before an adverse decision is made, whether by a disciplinary body or the deciding authority (see Judgment 2496, under 7).”
(See also Judgment 4343, consideration 13.)
The addition of another layer of investigation in the disciplinary process, not contemplated by the internal rules of the organization, which may have, as it did, set aside the findings of the advisory body provided for in these rules, coupled with the absence of sharing with the complainant of the new evidence gathered during this process before a final decision on the disciplinary measure imposed was reached, amounted to gross procedural irregularities that violated the complainant’s right of defence and entitlement to due process.
[…]
Established precedent in the Tribunal’s case law has it that a staff member’s right to due process entails that the organization has an obligation to prove the misconduct complained of beyond reasonable doubt. This serves a purpose peculiar to the law of the international civil service and involves the recognition that often disciplinary proceedings can have severe consequences for the staff member concerned. In this regard, a staff member is to be given the benefit of the doubt (see, for example, Judgments 4697, consideration 12, and 4491, consideration 19). In this respect, in Judgment 4047, consideration 6, the Tribunal recalled that it is equally well settled that it will not engage in a determination as to whether the burden of proof has been met, instead, it will review the evidence to determine whether a finding of guilt beyond a reasonable doubt could properly have been made by the primary trier of fact (see also Judgments 4764, consideration 13, 4697, consideration 22, and 4364, consideration 10).
Reference(s)
ILOAT Judgment(s): 2475, 2496, 2771, 2786, 3875, 4011, 4047, 4343, 4364, 4491, 4697, 4764
Keywords:
adversarial proceedings; disciplinary procedure; due process in disciplinary procedure; right to be heard;
Judgment 4820
138th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to dismiss his moral harassment complaints, and claims compensation for the injury which he considers he has suffered.
Considerations 15-17
Extract:
The Tribunal notes, however, that the complainant also submits that the review of the merits of his complaint is tainted by various legal flaws at the first stage of the procedure followed in that regard.
Among the various flaws alleged by the complainant, there is one which also appears substantial in the Tribunal’s view.
As is clear from the above, it is established, as he claims in his written submissions, that the complainant, although he addressed a specific request to the investigators on 28 October 2019, even before the alleged harasser and the witnesses were heard and before the investigators drew up their report, did not have knowledge of the statement made to them by Mr P.H., nor indeed of the witness statements gathered by them, or at least of their content, even in anonymized form, to be able to challenge these before the investigators drew up their report and the Director General made his original decision. This is clearly contrary to the Tribunal’s case law whereby, by virtue of the adversarial principle, the complainant in a harassment complaint must be informed, even before the end of the investigation, of the content of statements made by the persons accused and any testimony gathered as part of the investigation, in order to challenge them if necessary (see, in this respect, Judgment 4781, consideration 9, and the case law cited therein).
It follows that the review of the merits of the first complaint filed by the complainant is itself tainted by at least one substantial flaw which also renders unlawful the decision taken by the Director General on 27 March 2020.
Reference(s)
ILOAT Judgment(s): 4781
Keywords:
adversarial proceedings; harassment; inquiry; right to be heard;
Judgment 4819
138th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to place him on “administrative leave” as a consequence of the structural reorganization of the Eurocontrol Agency, the Organisation’s secretariat, which led to the abolition of his functions and the launch of a reassignment procedure, as well as the decision to reject his allegations of moral harassment.
Consideration 7
Extract:
With regard to the various decisions of 5 July 2019 to abolish the complainant’s functions at the time it was decided to reorganize the Agency, to launch a reassignment procedure in his regard and to place him on “administrative leave” with immediate effect, the complainant alleges, firstly, a violation of his right to be heard, which Eurocontrol disputes.
However, the Tribunal finds that the written submissions of the parties show that the purpose of the discussion that took place on 5 July 2019 – the day on which the Director of the DNM announced the reorganization of the Agency’s structure to staff – was clearly not to hear the complainant about the proposed course of action to be taken in his regard, but simply to notify him of the decisions already taken concerning him. Similarly, it appears that the requests for explanations made by the complainant in the following days also went unanswered.
In this respect, Eurocontrol submits that the purpose of the exercise in this case was to reorganize its services and that the right to be heard individually could not, in any event, be considered in the context of such a general decision.
However, the Tribunal notes that, beyond the reorganization of services exercise decided upon for managerial reasons, the decisions taken on 5 July 2019 had a fundamental impact on the complainant’s situation, since they had, in particular, led to the abolition of his functions, which he strongly contests. These decisions had thus an adverse impact on the complainant, for which reason he should have had the opportunity to state his views before they were taken (see, for example, Judgments 4622, consideration 10, 3124, consideration 3, 1817, consideration 7, and 1484, consideration 8).
The plea that the right to be heard was violated is therefore well-founded as far as the decision to abolish the complainant’s functions is concerned.
Reference(s)
ILOAT Judgment(s): 1484, 1817, 3124, 4622
Keywords:
abolition of post; reorganisation; right to be heard;
Judgment 4794
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2016.
Consideration 9
Extract:
As for the complainant’s contention that the objection procedure before the Appraisals Committee set out in Circular No. 366 does not offer the same safeguards as the internal appeal procedure before the Appeals Committee, the complainant has not put forward any arguments showing the objection procedure to be flawed. The Tribunal recalls that respect for the adversarial principle and the right to be heard requires that the official concerned be afforded the opportunity to comment on all relevant issues relating to the contested decision (see, for example, [...] Judgment 4637, consideration 12, and Judgments 4408, consideration 4, and 2598, consideration 6).
Reference(s)
ILOAT Judgment(s): 2598, 4408, 4637
Keywords:
adversarial proceedings; rating; right to be heard;
Judgment 4781
137th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject her complaint of harassment and abuse of authority.
Consideration 3
Extract:
According to the Tribunal’s case law, respect for the adversarial principle and the right to be heard in the internal appeal procedure requires that the official concerned be afforded the opportunity to comment on all relevant issues relating to the contested decision (see, for example, Judgments 4697, consideration 11, 4662, consideration 11, 4408, consideration 4, and 2598, consideration 6). Accordingly, that official must have the opportunity, insofar as is compatible with the rules of receivability and procedure to which she or he is subject, to freely develop the arguments in support of her or his appeal.
[...]
A provision that gives an appeal body the ability to waive the time limits that normally apply confers on that body discretionary power to be used according to the circumstances of each case. However, in the event of a dispute on the matter, it is for the Tribunal to ensure that the appeal body has not exercised that power improperly (see, for example, Judgment 3267, considerations 3 and 4).
In the present case, the Tribunal considers that, given the very particular situation in which the complainant found herself at the material time, the Appeal Board was indeed presented with exceptional circumstances within the meaning of the aforementioned subparagraph (d), which warranted permission being given to the complainant to finalise her appeal outside the time limit, and that the Board was therefore acting improperly in refusing to give her that opportunity, attempting to justify this position by a reference to “normal practice and procedures”, from which it should therefore have departed.
Reference(s)
ILOAT Judgment(s): 2598, 3267, 4408, 4662, 4697
Keywords:
adversarial proceedings; exception; internal appeal; right to be heard; time limit;
Consideration 9
Extract:
According to the Tribunal’s case law, an accusation of harassment made by an official requires an international organisation to investigate the matter ensuring that due process is observed, for the protection of both the person(s) accused and the accuser (see, for example, Judgments 3617, consideration 11, 3065, consideration 10, 2973, consideration 16, and 2552, consideration 3).
As a result, in the event of an accusation of harassment, the adversarial principle requires, in particular, that the accuser be kept informed of the content of statements made by the person(s) accused and any testimony gathered as part of the investigation, in order to challenge them if necessary (see Judgments 4110, consideration 4, 3617, consideration 12, and 3065, considerations 7 and 8).
In the present case, it is not apparent from the file that the complainant was informed during the course of the investigation, as is required by this case law, of the content of the observations made by the supervisors who were the subject of her complaint or the statements of the witnesses heard by the investigator. On the contrary, all the evidence appears to confirm the complainant’s assertion, which is not expressly disputed by the organisation in its submissions, that the information in question was not provided to her. In that regard, the Tribunal notes in particular that the sections of the report of 17 September 2019 that deal with the methodology of the investigation and the detailed examination of the complainant’s various allegations indicate that she was indeed heard at the start of the investigation but was not subsequently invited to comment on the reactions of her supervisors when they were questioned by the investigator, nor on the statements from the various witnesses heard by the investigator.
It follows from these findings that the investigation in question was not conducted in compliance with the adversarial principle.
Reference(s)
ILOAT Judgment(s): 2552, 2973, 3065, 3617, 4110
Keywords:
adversarial proceedings; harassment; inquiry; right to be heard;
Judgment 4768
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns what he refers to as decisions concerning Eurocontrol Agency’s reorganisation and his transfer following that reorganisation.
Consideration 13
Extract:
In Judgment 4609, consideration 8, the Tribunal recalled that its case law “requires that a staff member who is to be transferred be informed in advance of the nature of the post proposed for her or him and, in particular, of the duties involved, so that she or he is able to comment on those new duties [...] (see, for example, Judgments 4451, consideration 11, 3662, consideration 5, 1556, considerations 10 and 12, and 810, consideration 7)”. Similarly, in Judgment 4399, consideration 9, the Tribunal noted that “a proper consultation with the complainant prior to the decision being taken” was necessary. While it is true that this case law concerned individual transfers and not a collective transfer as in the present case, the Tribunal considers that the Organisation is wrong to submit that this requirement does not apply here because there is nothing in its Staff Regulations and Rules of Application imposing such an obligation in the context of a collective transfer carried out in the interests of the service.
Firstly, the absence of a binding provision to this effect in the applicable rules cannot permit an organisation to disregard the principles established by the Tribunal’s case law. Secondly, the fact that the transfer was collective rather than individual does not exempt the Organisation from this fundamental requirement. Although the Tribunal’s case law has it that the general principle protecting a staff member’s right to be heard cannot be applied to a general, impersonal decision which is collective in scope (see, for example, Judgments 4593, consideration 7, and 4283, consideration 6), in the present case, even if the impugned decision was collective in scope, it was obviously not impersonal. The Tribunal considers that a decision which, as in this case, notifies specifically identified staff members of their new individual postings with effect from 4 July 2019 cannot be considered an impersonal decision.
The Tribunal is not persuaded by Eurocontrol’s argument that it would not be “conceivable or even possible” for an organisation to consult individually each staff member before a collective transfer on the scale of that at issue in the present case, which affected over 600 staff members. The Organisation cannot refer to the scale of the collective transfer in support of its argument that it was not required to allow every staff member to comment before transferring her or him, even if this was done in a manner that was adapted and appropriate to the particular situation of this major reorganisation.
Reference(s)
ILOAT Judgment(s): 810, 1556, 3662, 4283, 4399, 4451, 4593, 4609
Keywords:
consultation; general decision; right to be heard; transfer;
Consideration 15
Extract:
The Tribunal considers that, owing to the circumstances in which the complainant’s transfer took place, without him being afforded any opportunity to express his views or to be heard before it was put into effect, that transfer was bound to hurt and shock him and thereby cause him substantial and serious moral injury. The Tribunal considers that this moral injury will be fairly redressed by awarding the complainant compensation in the amount of 10,000 euros.
Keywords:
consultation; moral injury; right to be heard; transfer;
Judgment 4743
137th Session, 2024
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to close a complaint of harassment he had filed and two related matters.
Consideration 13
Extract:
According to the Tribunal’s case law, the general principles applicable to an appeal body do not require that a complainant be given an opportunity to present oral submissions in person or through a representative. All that the right to a hearing requires is that the complainant should be free to put his case, either in writing or orally; the appeal body is not obliged to offer him both possibilities (see, for example, Judgment 3447, consideration 8).
Reference(s)
ILOAT Judgment(s): 3447
Keywords:
internal appeals body; oral proceedings; right to be heard;
Judgment 4697
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the Director General’s decision to impose on him the disciplinary sanction of downgrading.
Considerations 14-15
Extract:
The Tribunal considers that it is clear from these provisions, which are peculiar to Eurocontrol’s Staff Regulations, that officials of the Organisation are entitled to a due process which affords them the opportunity to be fully heard in connection with the misconduct of which they are accused and to a genuine opportunity to express themselves on the “penalty envisaged” in terms both of its content and of its proportionality to the facts complained of.
In the present case, bearing in mind that the Director General had the ability to apply a large range of disciplinary measures which had to be commensurate with the facts complained of and which had potentially significant consequences for the complainant depending on the severity of the penalty decided upon, the Tribunal considers that the provisions required the complainant to be given the opportunity to make observations on the penalty envisaged by the Director General before that penalty was imposed.
[...]
The Tribunal considers that the Organisation therefore breached its own disciplinary rules and substantially undermined the complainant’s right to be heard under the Staff Regulations in order to put forward his comments on the penalty envisaged against him. This breach of the rules was all the more serious that the penalty in question was significant and had severe consequences for the complainant, as downgrading by two grades brought with it an immediate and permanent reduction by almost 20 per cent of the amount of his pension.
Keywords:
disciplinary procedure; patere legem; right to be heard;
Judgment 4662
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the Secretary General’s decision to reject her application for voluntary departure and her claim for compensation for “legitimate resignation”.
Consideration 11
Extract:
[W]hile it is true that the complainant received belatedly the opinion of the Workforce Mobility Committee which had given its view on her application, the submissions and documents in the file show that the Committee was mindful of the complainant’s grievances on this point and forwarded the opinion to her so it could receive her comments, which the complainant was able to submit to the Committee before it delivered its recommendation. The complainant was therefore able to comment on the relevant issues relating to the decisions that were the subject of her internal appeal and, in particular, on the Organization’s arguments (see Judgment 4408, consideration 4). The complainant’s allegations of failure to observe the adversarial principle have not been proven.
Reference(s)
ILOAT Judgment(s): 4408
Keywords:
adversarial proceedings; disclosure of evidence; right to be heard;
Judgment 4637
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2014.
Consideration 12
Extract:
The complainant [...] submits that the objection procedure before the Appraisals Committee set out in Circular No. 366 does not include the same safeguards as the internal appeal procedure before the Appeals Committee. However, the complainant does not put forward any arguments showing the objection procedure to be flawed. That the procedure before the Appraisals Committee is a written procedure, unless otherwise decided, does not breach his right to be heard. The Tribunal points out that respect for the adversarial principle and the right to be heard requires that the official concerned be afforded the opportunity to comment on all relevant issues relating to the contested decision (see Judgments 4408, consideration 4, and 2598, consideration 6), but there is no general principle requiring her or him to be given an opportunity to present oral submissions (see Judgment 4398, consideration 4). Furthermore, the complainant had the opportunity to submit his observations at several points during the conciliation procedure and in the objections he submitted to the Appraisals Committee.
Reference(s)
ILOAT Judgment(s): 2598, 4398, 4408
Keywords:
adversarial proceedings; rating; right to be heard;
Judgment 4622
135th Session, 2023
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her appointment for reasons of health.
Considerations 10 and 13
Extract:
Under the Tribunal’s settled case law, which is based on a general principle of international civil service law, the administrative status of a staff member cannot be unilaterally altered to her or his detriment by the employing organisation without that staff member having been given the opportunity to comment on the proposed measure beforehand (see, for example, Judgments 3124, consideration 3, 1817, consideration 7, or 1484, consideration 8). Clearly, this case law must be applied with the utmost stringency where a decision with such far-reaching consequences as the termination of an appointment is involved.
[...]
The Tribunal points out that, far from being a mere procedural flaw, the breach of the right to be heard identified above had a tangible bearing on the outcome of the present case. If the complainant had been given the opportunity to submit comments during the attempt to identify a position accommodating her functional impairments, she could, for example, have provided the multidisciplinary team with useful information for determining jobs at her level of responsibility that she herself considered could be adapted to her needs, which might have allowed the team to conduct its search more effectively. Similarly, if the complainant had been allowed to comment on the team’s report before the decision on her situation was taken, she could have pointed out several shortcomings in it that were correctly identified by the JAAB in its opinion, such as the lack of an exact list of positions examined during the search and the failure to give sufficient consideration to her options for vocational retraining. Thus, although the Tribunal considers that the material in the file does not permit a formal finding that, as the JAAB concluded, the Office did not genuinely use all available means to identify a position that could be allocated to the complainant, it is in any event clear that it was essential to the quality of the decision-making process that any comments made by the complainant on the efforts undertaken to that end be taken into account.
Reference(s)
ILOAT Judgment(s): 1484, 1817, 3124
Keywords:
right to be heard; termination of employment;
Judgment 4593
135th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the withdrawal of his right to supplementary days of annual leave for “travelling time”.
Consideration 7
Extract:
As regards the complainant’s [...] plea alleging that he was not heard before the impugned decision was taken to his detriment, the Tribunal has already held that the general principle protecting an official’s right to be heard cannot be applied to a general, impersonal decision which is collective in scope (see Judgment 4283, consideration 6). That same case law applies to the situation where, as in the present case, the contested decision is purely and simply the consequence of a general decision of that kind.
Reference(s)
ILOAT Judgment(s): 4283
Keywords:
general decision; right to be heard;
Judgment 4586
135th Session, 2023
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to convert his suspension with pay into a suspension without pay pending an investigation for misconduct against him, as well as the overall length of his suspension.
Consideration 10
Extract:
Rule 10.3 does not make any explicit provision for an official concerned to be heard before the decision to suspend her or him is announced. Indeed, suspension is an interim precautionary measure which, in principle, must be adopted urgently, and this will often make it impossible to invite the person concerned to express her or his opinion beforehand. Nevertheless, a person’s right to be heard must be exercised before the substantive decision is taken to impose a disciplinary sanction (see Judgments 3138, consideration 10(a), and 2365, consideration 4(a)).
Reference(s)
ILOAT Judgment(s): 2365, 3138
Keywords:
due process; right to be heard; suspension;
Judgment 4399
131st Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to transfer him from a manager position to a non-managerial post.
Consideration 9
Extract:
The complainant was not notified of this transfer until the meeting of 12 November 2009 at which he was informed orally that the decision had been taken. Despite the Organisation’s arguments to the contrary, that notification cannot be considered as a proper consultation with the complainant prior to the decision being taken.
Keywords:
administrative decision; right to be heard;
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