Standard of proof in disciplinary procedure (909,-666)

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Keywords: Standard of proof in disciplinary procedure
Total judgments found: 6

• Judgment 4227

  
  129th Session, 2020
  Food and Agriculture Organization of the United Nations
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to dismiss him for misconduct.

  Consideration 6

  Extract:

  The role of the Tribunal in a case such as the present, in relation to the question of whether the alleged conduct took place, was summarised in Judgment 3862, consideration 20. According to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14). 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 by the primary trier of fact” (see Judgment 2699, consideration 9).

  Reference(s)

  ILOAT Judgment(s): 2699, 3649, 3862
  

  Keywords:

  burden of proof; disciplinary measure; misconduct; standard of proof; standard of proof in disciplinary procedure;
  

  
  
  

• Judgment 4106

  
  127th Session, 2019
  International Labour Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the decision to apply to him the sanction of discharge.

  Consideration 11

  Extract:

  The complainant claims that the ILO failed to prove the misconduct beyond a reasonable doubt, because it did not verify the exact amount of money received by him nor did it establish how his actions “undermined the ILO’s strategy”. This claim is unfounded. As the Tribunal said in Judgment 3649, under 14, “it 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’.”
  The allegations against the complainant were set out in the Investigation Report as follows:
  (a) “It is alleged that [the complainant] was [the business development advisor of an EU Grant Scheme project for a Bangladeshi agro-processors’ association] and a member of three other committees of [said association], and that he received a very high fee for developing a project proposal to obtain [for the association] an EU grant.
  (b) [the complainant] is also alleged to have submitted two project proposals to [said association] whereby he would be paid for acting as a master trainer.
  (c) It is further alleged that [the complainant] was involved in forging the signature of the Director of CO-Dhaka [...].”
  The IAO investigation found that the first two allegations (as listed above) were substantiated by the evidence compiled as well as by the complainant’s free admission of guilt. The third allegation was not substantiated and was not raised again in any further proceedings. The Tribunal finds no flaw in the evaluation of the evidence by the Director-General in reaching the conclusion that the burden of proof was met. The complainant’s assertion that the exact amount of money paid was unverified does not negate the fact that he did receive payments for outside activities without authorization from the ILO. The complainant claims the assessment of his unauthorized outside activities being contrary to the ILO’s strategy was false and based solely on a statement made by the Chief Technical Adviser who “was new and had limited knowledge of the TVET project”. The Tribunal notes that the Director-General agreed with the Chief Technical Adviser’s assessment noting that the proposals prepared by the complainant and submitted to the EU on behalf of the agro-processors’ association contradicted ILO policy in the particular field. The Tribunal also notes the Director-General’s conclusion that the complainant’s unauthorized outside activities were in a direct conflict of interest with his position as an ILO National Programme Officer, and that he is the proper authority for deciding what could potentially be considered harmful to the ILO’s interests and/or reputation.

  Keywords:

  burden of proof; standard of proof; standard of proof in disciplinary procedure;
  

  
  
  

• Judgment 4047

  
  126th Session, 2018
  European Patent Organisation
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to impose on her with immediate effect the disciplinary measure of dismissal for serious misconduct.

  Considerations 6, 9 and 13

  Extract:

  Overall, the case law of the Tribunal is clear and consistent. It was recently referred to in Judgment 3863, consideration 8 (see, also, Judgment 3882, consideration 14, as another recent example), in which the Tribunal said:
  “[A]ccording to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14). 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 by the primary trier of fact’ (see Judgment 2699, consideration 9).”
  It is legally irrelevant, for the purposes of the Tribunal’s judicial determination of the complaint, that, as the EPO points out in the reply, the same formulation is used in the English common law to establish the standard of proof in criminal proceedings.
  [...]
  The test [in question] is to be applied by the decision-maker who has to decide whether there has been misconduct and the appropriate sanction. Usually that is the executive head of an organisation or her or his delegate. However it is also a test to be applied by bodies such as a disciplinary committee, though whether it does in any given case will ultimately depend on the role such a body has under the organisation’s rules. Under Article 102 of the Service Regulations for permanent employees of the Office, the Disciplinary Committee is obliged to deliver a reasoned opinion on thedisciplinary measure appropriate to the facts complained of and transmit the opinion to, in this case, the President. This could only be done if the Disciplinary Committee concluded that the staff member had, on the facts, engaged in misconduct warranting a disciplinary measure. Plainly enough, the Disciplinary Committee must be satisfied that the evidence establishes beyond reasonable doubt that the misconduct occurred. There would be no utility in the Disciplinary Committee applying some other standard before reporting to the President.[...]
  In some circumstances, it may be that if one of a number of sets of charges was assessed applying the appropriate standard of proof and a conclusion of guilt reached, the imposition of a particular disciplinary sanction might be justified by reference to the proof of that set of charges beyond a reasonable doubt notwithstanding the failure to apply the appropriate standard in relation to the other sets of charges. [...]

  Reference(s)

  ILOAT Judgment(s): 2699, 3649, 3863, 3882
  

  Keywords:

  burden of proof; disciplinary procedure; standard of proof; standard of proof in disciplinary procedure;
  

  
  
  

• Judgment 3969

  
  125th Session, 2018
  European Patent Organisation
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the EPO’s decision to impose upon her the disciplinary measure of downgrading.

  Consideration 10

  Extract:

  The overarching legal principles in a case such as the present have recently been discussed by the Tribunal in Judgment 3862, consideration 20. The Tribunal observed:
  “[A]ccording to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14). 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 by the primary trier of fact’ (see Judgment 2699, consideration 9).”

  Reference(s)

  ILOAT Judgment(s): 2699, 3649, 3862
  

  Keywords:

  burden of proof; disciplinary procedure; standard of proof; standard of proof in disciplinary procedure;
  

  
  
  

• Judgment 3964

  
  125th Session, 2018
  European Patent Organisation
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the decision to impose on him the disciplinary measure of dismissal for serious misconduct.

  Consideration 9

  Extract:

  The overarching legal principles in a case such as the present have recently been discussed by the Tribunal in Judgment 3862, consideration 20. The Tribunal observed: “the executive head of an international organisation is not bound to follow the recommendation of any internal appeal body nor bound to adopt the reasoning of that body. However an executive head who departs from a recommendation of such a body must state the reasons for disregarding it and must motivate the decision actually reached. In addition, according to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14).

  Reference(s)

  ILOAT Judgment(s): 3649, 3862
  

  Keywords:

  burden of proof; disciplinary measure; duty to substantiate decision; final decision; misconduct; standard of proof; standard of proof in disciplinary 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;