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Due process in disciplinary procedure (901,-666)
You searched for:
Keywords: Due process in disciplinary procedure
Total judgments found: 10
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 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.
Consideration 11
Extract:
Established precedent of the Tribunal has it that before adopting a disciplinary measure, an international organisation must give the staff member concerned the opportunity to defend herself or himself in adversarial proceedings (see, for example, Judgment 3875, consideration 3). This is to ensure that the staff member is afforded the opportunity to fully express her or his point of view, with the aim of being properly heard. In Judgment 4408, consideration 4, the Tribunal reiterated the importance of these principles as follows:
“4. The Tribunal points out that 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 and, in particular, on all the organisation’s arguments (see Judgment 2598, consideration 6).”
Reference(s)
ILOAT Judgment(s): 2598, 3875, 4408
Keywords:
disciplinary procedure; due process in disciplinary procedure;
Judgment 4615
135th Session, 2023
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her appointment.
Consideration 8
Extract:
The failure by the Secretary-General to give the complainant the opportunity to be heard before the termination of her contract affects the Secretary-General’s decision of termination […] and is decisive regarding its annulment by the Tribunal.
Keywords:
due process in disciplinary procedure;
Consideration 7
Extract:
[I]n disciplinary proceedings the official concerned has a right to be informed of the charges made against her or him, as well as of the potential penalty, and has also the right to be heard or to comment thereon.
Keywords:
disciplinary charges; disciplinary procedure; due process in disciplinary procedure;
Consideration 22
Extract:
[T]he Tribunal observes that the right of defence of the complainant was not affected by the fact that the officials heard as witnesses were not named. It was sufficient for the complainant to know the content of the statements and it was not necessary for her to know the witnesses’ names. Furthermore, the Advisory Board redacted some names for reasons of confidentiality, since some officials feared retaliation by the complainant: this was a reasonable step to strike a balance between the right of defence of the accused person and the right of the witnesses to be protected against retaliation.
Keywords:
disclosure of evidence; due process in disciplinary procedure; witness;
Judgment 4311
130th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to apply the sanction of summary dismissal to him.
Consideration 4
Extract:
Since the IAO report resulted from a thorough investigation and provided all the necessary information, there was no need for the Committee on Accountability to conduct a fresh investigation. In assessing the facts set out in the IAO report and drawing the conclusions it considered warranted, the Committee complied with its mandate under the Rules of Procedure. As the Tribunal has previously held, when an organisation initiates proceedings in the light of a report on an internal investigation, it is not obliged to repeat all the investigative steps recorded in the report, but must simply ensure that the person concerned is given the opportunity to reply to the findings it contains so as to respect the rights of defence (see Judgments 2773, under 9, and 3640, under 16).
Reference(s)
ILOAT Judgment(s): 2773, 3640
Keywords:
due process in disciplinary procedure;
Judgment 4310
130th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to apply the sanction of summary dismissal to him.
Consideration 10
Extract:
[T]he ILO argues that the adversarial principle was duly observed, having regard to the procedure as a whole. It submits that the complainant must have been aware of the content of the investigation report of January 2015 and the allegations made against him, as one of the investigators had explained to him that a report would be compiled on the basis of the interview he had just held with him. During that interview, the complainant was given ample opportunity to respond to the allegations made against him. Furthermore, it submits that the complainant was given the opportunity to provide additional information when he was invited to submit his observations on the proposal for a sanction, which he did. The ILO hence concludes that the complainant exercised his right to be heard on several occasions during the procedure and, in any case, before the final decision to impose a sanction was taken.
However, the fact that the complainant was interviewed during an investigation into certain events and had the opportunity to answer questions relating to those events does not, as the Organization suggests, imply that he was aware of the content of the investigation report subsequently drawn up on the basis of that interview, or of the allegations ultimately upheld by the IAO and the reasons why they were upheld.
Keywords:
adversarial proceedings; due process in disciplinary procedure; procedural rights during investigation;
Consideration 11
Extract:
[I]t [cannot] be argued that the Committee on Accountability’s report [...] – communicated to the complainant [...] at the same time as the proposal to dismiss him summarily – constituted adequate information. That very brief report merely listed the headings of the allegations against him.
Keywords:
due process in disciplinary procedure;
Consideration 11
Extract:
It is not disputed that the complainant had never seen the IAO’s investigation report prior to filing his complaint with the Tribunal on 19 June 2017. Having regard to the Organization’s explanations, it seems that the report was not provided to him until 6 September 2017.
The Joint Advisory Appeals Board rightly considered that, in those circumstances, the adversarial principle and, more particularly, the complainant’s rights of defence had been breached.
As the Tribunal has repeatedly held, 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 her or him personally. 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 disclosure (see Judgments 3732, under 6, and 3755, under 10), which was not the case here.
The fact that the complainant was ultimately able to obtain the IAO investigation report during the proceedings before the Tribunal does not, in this case, remedy the flaw in the procedure. While the case law recognises that, in some cases, the non-disclosure of evidence can be corrected when this flaw is subsequently remedied, including in proceedings before the Tribunal (see, for example, Judgment 3117, under 11), that is not the case where the document in question is of vital importance having regard to the subject matter of the dispute, as it is here (see Judgments 2315, under 27, 3490, under 33, 3831, under 16, 17 and 29, and 3995, under 5).
Reference(s)
ILOAT Judgment(s): 2315, 3117, 3490, 3732, 3755, 3831, 3995
Keywords:
confidentiality; due process in disciplinary procedure; investigation report;
Judgment 3364
118th Session, 2014
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully impugns on the grounds of a procedural flaw the decision to maintain his dismissal for misconduct.
Consideration 26
Extract:
"Contrary to the argument put forward by WHO, the fact that the complainant admitted the truth of the facts imputed to him did not dispense it from the obligation to draw up the report provided for in the relevant provisions. A “transcript of the interview” cannot take the place of such a report."
Keywords:
due process in disciplinary procedure; investigation report;
Judgment 3200
115th Session, 2013
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose on her the disciplinary measure of demotion.
Judgment keywords
Keywords:
complaint allowed; decision quashed; disciplinary measure; downgrading; due process in disciplinary procedure;
Judgment 2741
105th Session, 2008
International Olive Oil Council
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4(a)
Extract:
A disciplinary penalty can be imposed only at the close of an adversarial procedure that fully guarantees the presumption of innocence and the staff member’s right to be heard. The facts complained of must be clearly stated and notified in good time so that the staff member can participate actively and fully in the taking of evidence both before the body responsible for conducting the investigation and before the advisory disciplinary body and the decision-making authority. These bodies must scrupulously avoid taking evidence from one party without the other’s knowledge, whether or not the evidence is prejudicial to the staff member (see Judgments 1133, 1212, 2254, under 6, and 2475, under 20).
Reference(s)
ILOAT Judgment(s): 1133, 1212, 2254, 2475
Keywords:
adversarial proceedings; due process in disciplinary procedure; procedural rights during investigation;
Judgment 2261
95th Session, 2003
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
There is no substance to the allegation of failure of due process. In particular, the mission report which gave the Organization information on which to base the decision to charge him, was a preliminary investigative tool and the complainant had no right to review its contents prior to the decision being made that the disciplinary procedure should be started. Once that procedure was under way, the complainant was given ample communication of the case against him and was afforded full opportunity to answer and make his defence. It was no breach of the principle of good faith for the Organization to ask the complainant for a statement of his activities and subsequently to use such statement, which was entirely exculpatory, as evidence of his deliberate attempt to mislead the investigation, which it manifestly was.
Keywords:
adversarial proceedings; disciplinary charges; due process in disciplinary procedure; inquiry; investigation; investigation report;
Judgment 2014
90th Session, 2001
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 17(D)
Extract:
The complainant argues that his dismissal was based on unsubstantiated accusations and evidence that was not made available to him. "It is true that confidential information given to the auditors was not made known to him, the Joint Disciplinary Committee or the Joint Appeals Board. This puts that evidence in the realm of unsubstantiated hearsay which should not have been relied on. It is contrary to due process to require an accused staff member to answer unsubstantiated allegations made by unknown persons. The staff member is entitled to confront his or her accusers. In the present case, if the organization was not willing to disclose the identity of the complainant's accusers, and had no other independent evidence to rely on, the charges should not have been brought."
Keywords:
admissibility of evidence; adversarial proceedings; communication to third party; confidential evidence; disciplinary procedure; disclosure of evidence; due process; due process in disciplinary procedure; duty to inform; evidence; witness;
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