Evidence (144, 145, 146, 147, 149, 150, 151, 152, 153, 154, 155, 156, 157,-666)
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Keywords: Evidence
Total judgments found: 236
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Judgment 4782
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants filed an application review of Judgment 4484.
Consideration 5
Extract:
On the material available to the Tribunal in [the] complaints, it was not established that the complainants worked on shifts outside working hours. They cannot now do so in their application for review, as it travels beyond the scope of review as discussed in consideration 3 […].
Keywords:
evidence;
Judgment 4764
137th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to dismiss her for misconduct.
Consideration 7
Extract:
[T]he Tribunal said, in relation to both the opinion of an internal appeals body and an investigative body established by the rules of the organization concerned, in Judgment 4237, consideration 12:
“According to the Tribunal’s case law (see, for example, Judgments 3757, under 6, 4024, under 6, 4026, under 5, and 4091, under 17), ‘where an internal appeal body has heard evidence and made findings of fact, the Tribunal will only interfere if there is manifest error (see Judgment 3439, consideration 7)’. Moreover, where there is an investigation by an investigative body in disciplinary proceedings, ‘it is not the Tribunal’s role to reweigh the evidence collected by an investigative body the members of which, having directly met and heard the persons concerned or implicated, were able immediately to assess the reliability of their testimony. For that reason, reserve must be exercised before calling into question the findings of such a body and reviewing its assessment of the evidence. The Tribunal will interfere only in the case of manifest error (see Judgments 3682, under 8, and 3593, under 12)’ (see Judgment 3757, under 6).”
It is true that the [Global Board of Appeal] did not hear the witnesses in the present case. It did, however, review a large amount of documentary material, including the records of interviews, and made findings of fact based on this material. The opinion of the [Global Board of Appeal] is, on some relevant matters, balanced and considered and has to be given the deference spoken of in the Tribunal’s case law.
Reference(s)
ILOAT Judgment(s): 3593, 3682, 3757, 4237
Keywords:
disciplinary procedure; evidence; internal appeal; investigation;
Consideration 13
Extract:
In relation to the question of whether conduct founding a disciplinary measure has been proved beyond reasonable doubt and what evidence the Tribunal considers, it has said its role is a limited one, as described in Judgment 4362, consideration 7:
“The role of the Tribunal in a case such as the present is not to assess the evidence itself and determine whether the charge of misconduct has been established beyond reasonable doubt but rather to assess whether there was evidence available to the relevant decision-maker to reach that conclusion [...]”
Plainly enough that role does not require, indeed contemplate, further evidence to be furnished in the proceedings before the Tribunal. The touchstone for error in this regard concerns the evaluation of the evidence by the relevant decision-maker, namely the evidence before him or her.
Reference(s)
ILOAT Judgment(s): 4362
Keywords:
competence of tribunal; disciplinary measure; evidence; standard of proof;
Judgment 4746
137th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to close her harassment complaint following a preliminary assessment and without conducting an investigation.
Consideration 12
Extract:
It is well settled in the Tribunal’s case law that “an allegation of harassment must be borne out by specific facts, the burden of proof being on the person who pleads it, and that an accumulation of events over time may be cited to support an allegation of harassment” (see, for example, Judgment 2100, consideration 13).
Reference(s)
ILOAT Judgment(s): 2100
Keywords:
accumulation; burden of proof; evidence; harassment;
Judgment 4690
136th Session, 2023
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to uphold his transfer to Budapest.
Considerations 12-13
Extract:
It may be accepted that the Tribunal has recognised, at least in relation to certain classes of cases, that evidence of earlier conduct which precedes the conduct actually the subject matter of the complaint, may be relied on to prove the true character of the later and impugned conduct. An obvious example is a case involving an allegation of harassment. The Tribunal has accepted that in such a case the evidence of earlier conduct is admissible (see Judgments 4601, consideration 8, 4288, consideration 3, 4286, consideration 17, 4253, consideration 5, and 4233, consideration 3). But the purpose of that evidence is to enable the correct characterization, if it is in issue, of the impugned conduct. The same can happen in cases where bias and prejudice are alleged (see Judgment 3669, consideration 2).
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.
Reference(s)
ILOAT Judgment(s): 3669, 4233, 4253, 4286, 4288, 4601
Keywords:
bias; evidence; harassment; prejudice;
Judgment 4674
136th Session, 2023
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her for misconduct.
Consideration 5
Extract:
[I]t is desirable to refer to the role of reports or opinions of internal appeal bodies in the Tribunal’s consideration of issues raised in a complaint. It has been put in a variety of ways, and comparatively recently in Judgment 4644, consideration 5:
“[If the internal appeal body’s opinion] is balanced and considered, [...] its findings and conclusions must be given considerable deference (see, for example, Judgments 4488, consideration 7, 4407, consideration 3, and 3858, consideration 8).”
Indeed, also comparatively recently, the Tribunal said, in relation to both the opinion of an internal appeals body and an investigative body established by the rules of the organization concerned, in Judgment 4237, consideration 12:
“According to the Tribunal’s case law (see, for example, Judgments 3757, under 6, 4024, under 6, 4026, under 5, and 4091, under 17), ‘where an internal appeal body has heard evidence and made findings of fact, the Tribunal will only interfere if there is manifest error (see Judgment 3439, consideration 7)’. Moreover, where there is an investigation by an investigative body in disciplinary proceedings, ‘it is not the Tribunal’s role to reweigh the evidence collected by an investigative body the members of which, having directly met and heard the persons concerned or implicated, were able immediately to assess the reliability of their testimony. For that reason, reserve must be exercised before calling into question the findings of such a body and reviewing its assessment of the evidence. The Tribunal will interfere only in the case of manifest error (see Judgments 3682, under 8, and 3593, under 12)’ (see Judgment 3757, under 6).”
It is true that the Board of Appeal did not hear the witnesses in the present case. It did, however, review a large amount of documentary material, including the records of interviews, and made findings of fact based on this material. The opinion of the Board of Appeal is, on some relevant matters, balanced and considered and has to be given the deference spoken of in the Tribunal’s case law.
Reference(s)
ILOAT Judgment(s): 3439, 3593, 3757, 3858, 4024, 4026, 4091, 4237, 4407, 4488, 4644
Keywords:
evidence; report of the internal appeals body;
Judgment 4660
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the Secretary General’s decision to dismiss him summarily without indemnities on disciplinary grounds.
Consideration 8
Extract:
[T]he Joint Disciplinary Committee’s opinion [...] shows that, when establishing the existence of particular facts and assessing the seriousness of the misconduct with which the complainant was charged, the Committee relied to a large extent on video footage of the incident [...] taken by a closed-circuit camera installed at the security post. The Committee used that footage to assess the complainant’s behaviour for almost two minutes before the unfortunate shot was fired, during which, according to the Committee, he stood by while his colleague carelessly handled the weapon that he had just given him. In the first place, this contradicted the account that the complainant gave in memoranda addressed to the Organization’s senior management and during his hearing and, in the second place, showed that he had failed to appreciate the danger of the situation.
However, it is clear from the details contained in the Committee’s opinion that the video footage was watched by only two of the three members of the Committee, who did so [...] between the Committee’s meetings. The Tribunal has already ruled in a similar case that such a practice is irregular in its very principle. Making clear that each member of a collegiate body has an individual responsibility to be fully engaged in the fact-finding process in the case before it, which involves the assessment of the evidence of those facts in terms of its admissibility, reliability, accuracy, relevance and weight, the Tribunal held that the whole panel of such a body is required to consider that evidence and that this responsibility cannot be delegated to one or more of its members (see Judgment 3272, consideration 13). This holding, which was applied to a joint appeals body, must also apply to a collegiate body dealing with disciplinary matters such as Interpol’s Joint Disciplinary Committee. The Tribunal sees no reason here to depart from the case law in question, which seems to it to be salutary, since it is unacceptable for a member of an administrative committee to deliberate on a case without having examined for herself or himself a piece of evidence examined by the other members – which is thereby placed, by definition, in the file of that case – especially if, as in the present case, that committee actually uses the piece of evidence in question as a foundation for its opinion. The procedure followed was therefore flawed on that account.
Reference(s)
ILOAT Judgment(s): 3272
Keywords:
disciplinary body; due process; evidence;
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.
Considerations 20 and 23
Extract:
The case law relied upon by the organisation (see Judgment 2771, consideration 18, cited below), correctly interpreted, does not allow exceptions to the necessity of a written record being made available to the concerned official, but only approves of a written record as an alternative to cross-examination or to a verbatim record. Indeed, the Tribunal held in that judgment:
“The complainant points to cases in which the Tribunal observed that the complainant had not been present when statements were taken and not given the opportunity to cross-examine witnesses [...], to object to evidence [...] or to have a verbatim record of the evidence [...] These are matters that, in the cases concerned, would have ensured that the requirements of due process were satisfied. However, they are not the only means by which due process can be ensured. In the present case, the complainant was informed of the precise allegations made against him [...], and provided with the summaries of the witnesses’ testimonies relied upon by the Investigation Panel, even if not verbatim records. He was able to and did point out [...] inconsistencies in the evidence, its apparent weaknesses and other matters that bore upon its relevance and probative value, before the finding of unsatisfactory conduct was made [...] In this way, the complainant was able to confront and test the evidence against him, even though he was not present when statements were made and not able to cross-examine the witnesses who made them.”
In the precedent quoted above, the complainant was informed of the content of the witnesses’ testimonies by written records before the decision; in the present case, the complainant acknowledged the content of the witnesses’ testimonies by means of the Advisory Board’s report, not during the proceedings but only when that report was provided to her attached to the termination decision, that is to say at a stage when she could no longer usefully comment on them.
It can be inferred from the quoted case law that two principles must be respected in an adversarial procedure: (i) not only must the oral evidence gathered be recorded in writing, even though not necessarily by a verbatim record; (ii) but also any evidence gathered must be submitted to the person concerned, for her or his comment, before the decision is adopted.
In the present case, the organisation failed to comply with both principles, as there was no written record of Mr B.’s statement and this statement was not disclosed to the complainant before she was notified of the decision endorsing the Advisory Board’s report.
[…]
In light of consideration 20 […], the Advisory Board’s recommendation is flawed with regard to the assessment of offensive act no. 1 for lack of written record. However, this flaw is not decisive in order to declare that the Advisory Board’s recommendation was unlawful in its entirety. As noted in considerations 21 and 22 [...], the Advisory Board’s finding that the complainant’s conduct amounted to harassment was based on multiple episodes and related evidence sufficient for the purpose of the adoption of measures aimed at the protection of the victim of harassment. Therefore, the Board’s report deserves considerable deference (see Judgments 4488, consideration 7, and 4180, consideration 7).
Reference(s)
ILOAT Judgment(s): 2771, 4180, 4488
Keywords:
disciplinary procedure; evidence; report of the internal appeals body; witness;
Judgment 4579
135th Session, 2023
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to discharge him.
Consideration 3
Extract:
[A]ccording to the Tribunal’s case law, the verbatim record of the oral evidence gathered during disciplinary proceedings is not deemed strictly necessary. It is sufficient that the person charged in disciplinary proceedings be informed of the precise allegations made against her or him, provided with the summaries of the witnesses’ testimonies relied upon by the body in charge of the investigation, and enabled to comment on them (see Judgment 2771, consideration 18).
Reference(s)
ILOAT Judgment(s): 2771
Keywords:
due process; evidence; investigation; witness;
Judgment 4529
134th Session, 2022
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests WHO’s decision to select Ms V. for the post of Proofreader (Spanish), at grade G-4, in WHO’s Headquarters’ Word Processing Centre.
Consideration 15
Extract:
The Tribunal’s firm case law has it that the complainant bears the burden of proving allegations of bias and prejudice. Moreover, the evidence adduced to prove the allegations must be of sufficient quality and weight to persuade the Tribunal (see, for example, Judgments 4382, consideration 11, and 2472, consideration 9).
Reference(s)
ILOAT Judgment(s): 2472, 4382
Keywords:
bias; burden of proof; evidence; prejudice;
Judgment 4511
134th Session, 2022
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the new final decision made pursuant to the Tribunal’s order in Judgment 3905 concerning the decision to terminate his fixed-term contract.
Consideration 2
Extract:
[T]he Tribunal’s case law states that documents from informal settlement processes are not admissible in the Tribunal as they should not be disclosed in the more formal process (see Judgment 3586, under 5, recently confirmed in Judgment 4457, under 2).
Reference(s)
ILOAT Judgment(s): 3586, 4457
Keywords:
agreed termination; confidentiality; evidence;
Judgment 4491
133rd Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her with immediate effect for serious misconduct.
Consideration 20
Extract:
[T]here has been a clear reluctance, or indeed refusal, to accept what the complainant said was true. Obviously, a person who is guilty of fraud may well often lie and contrive false facts to avoid the consequences of their fraudulent conduct. Equally obviously, an organisation must be alive to this possibility when investigating and dealing with conduct of a member of staff believed or suspected of being fraudulent. But in the present case, proof of the hypothesis that the complainant’s narrative and explanation were false and she acted fraudulently involved an unfair and distorted analysis of the facts. The Tribunal is satisfied a finding of guilt beyond reasonable doubt of the charge alleged could not properly have been made.
Keywords:
beyond reasonable doubt; disciplinary procedure; evidence; fraud;
Judgment 4474
133rd Session, 2022
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant filed an application to review Judgment 4360.
Judgment keywords
Keywords:
application for review; complaint dismissed; due process; evidence;
Consideration 3
Extract:
The essence of the argument is that the admission of the evidence was not authorised. However, the relevant question is whether it was prohibited. A legal aphorism deployed in some domestic legal systems is that rules of procedure should be a servant and not a master. It is apt to apply to this Tribunal. Ordinarily a judicial tribunal ought to be able to adopt procedures in a given case to meet the overriding objective of determining a fair, lawful and just outcome. Unless a particular procedure is prohibited expressly or by necessary implication by a normative legal document binding the judicial tribunal or by entrenched case law, the tribunal can on proper grounds adopt, as a matter of discretionary assessment, procedures to achieve that overriding objective. This Tribunal did so in the present case.
Keywords:
evidence;
Consideration 4
Extract:
The fresh evidence adduced in the surrejoinder was [...] deployed by the Tribunal to assess and decide what relief was appropriate. Necessarily that decision must be made by reference to facts and circumstances known at the time of the assessment, which may include facts and circumstances that were not known when the decision to dismiss was made. Very commonly this would entail an assessment, in a case of unlawful dismissal, whether an order of reinstatement was appropriate. That, in turn, often raises for consideration the passage of time between the dismissal and when a remedy is being considered, including the possible prejudice to the organisation if reinstatement were ordered. While this case was extremely unusual if not extraordinary, it simply cannot be suggested that the fresh evidence in this case was not relevant to remedy. It was and that was the use made of it by the Tribunal.
Keywords:
effective date; evidence; reinstatement; surrejoinder;
Judgment 4453
133rd Session, 2022
World Tourism Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to summarily dismiss him.
Consideration 6
Extract:
These remarks do not come to grips with what Mr R. said nor provide a sound basis for rejecting his evidence. To say someone is “evidently personally offended by what he considers to be an attack to his mandate” is firstly equivocal and secondly and more importantly does not provide, of itself, a firm foundation for saying that Mr R.’s account of past events cannot, or even should not, be accepted as true. It is not at all obvious that if a person is personally offended in the circumstances just discussed, that would “[prevent] [her or] him from being a reliable and objective witness” let alone someone who is giving a false account of past events.
Keywords:
evidence; witness;
Judgment 4428
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the refusal of her request to combine a half day of absence for strike participation with a half day of leave.
Consideration 7
Extract:
With regard to the question of unequal treatment, the Tribunal notes that the Organisation has not provided any convincing evidence to justify the different treatment of the complainant’s colleague.
Keywords:
evidence; unequal treatment;
Judgment 4427
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to maintain his transfer to a patent examiner post.
Consideration 12
Extract:
[T]he complainant’s contention that the transfer decision was tainted by misuse of authority is unfounded. In consideration 10 of Judgment 4146, for example, the Tribunal recalled that the principle of good faith and the concomitant duty of care require international organisations to treat their staff with due consideration in order to avoid causing them undue injury. It also observed that in order for there to be misuse of authority, it must be established that the decision rested on considerations extraneous to the organisation’s interests and that the staff member alleging abuse of authority bears the burden of establishing the improper purpose for which the authority was exercised. Misuse of authority cannot be presumed. The complainant has not provided evidence, against conjecture, that shows that his transfer was based on improper purpose.
Reference(s)
ILOAT Judgment(s): 4146
Keywords:
abuse of power; burden of proof; duty of care; evidence; misuse of authority; organisation's duties;
Judgment 4412
132nd Session, 2021
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions not to renew her short-term appointment beyond 31 March 2016 and not to select her for a G-3 position advertised through a vacancy announcement.
Consideration 14
Extract:
The Tribunal relevantly restated in Judgment 3586, consideration 16, that a staff member must, as a general rule, have access to all evidence on which an authority bases or intends to base its decision against her or him, and that, under normal circumstances, such evidence cannot be withheld on grounds of confidentiality, unless there is some special case in which a higher interest stands in the way of the disclosure of certain documents. Such disclosure may not be refused merely in order to strengthen the position of the Administration or one of its officers. Additionally, the Tribunal reiterated, in consideration 17 of that judgment, its consistent case law that the principle of equality of arms must be observed by ensuring that all parties in a case are provided with all the materials an adjudicating body uses in an internal appeal and that the failure to do so constitutes a breach of due process.
Reference(s)
ILOAT Judgment(s): 3586
Keywords:
confidentiality; due process; evidence; motivation; motivation of final decision;
Judgment 4411
132nd Session, 2021
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her appointment as a result of the abolition of her post.
Consideration 15
Extract:
In its pleadings before the Tribunal, the FAO again provided no information regarding the restructuring of LOG. In particular, the FAO did not adduce any evidence as to whether LOG was, in fact, restructured and, if so, when the decision to restructure LOG was taken, in particular, if the restructuring had occurred prior to the decision to abolish the complainant’s post. These were facts within the knowledge of the FAO that the FAO opted not to provide. In this regard, the FAO submits that it was “not legally obliged” to provide the complainant with “documentation on the proposed restructuring”, referring to Judgment 3920, consideration 11, and it emphasises that she has not “adduced any evidence to discharge her burden of proving that extraneous factors motivated the decision to abolish her post”. However, as the Tribunal observed in Judgment 3415, consideration 9, “[w]hile international organisations are entitled to defend proceedings before the Tribunal, and even do so robustly, it is singularly unhelpful and inappropriate for an organisation to refuse to provide documents sought by a complainant that are patently relevant to his case and then argue that the complainant has not furnished relevant evidence in support of that case”.
Reference(s)
ILOAT Judgment(s): 3415, 3920
Keywords:
abolition of post; burden of proof; evidence; organisation's duties; reorganisation;
Judgment 4408
132nd Session, 2021
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant disputes the lawfulness and outcome of a competition procedure in which she participated.
Consideration 13
Extract:
The fact that the table [of preselected candidates] was produced before the Tribunal in a version that did not show candidates’ names does not alter the fact that it exists.
Keywords:
confidentiality; evidence; selection procedure;
Judgment 4406
132nd Session, 2021
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to impose upon him the disciplinary measure of reduction in grade.
Consideration 8
Extract:
The Tribunal notes that, as the complainant was provided with unredacted copies of the three requested documents before lodging his appeal with the GBA against the imposition of the disciplinary measure, he was able to rely on this material during the appeal proceedings. Accordingly, the Tribunal is satisfied that his right to be heard and his right to due process were not violated.
Keywords:
due process; evidence; investigation;
Judgment 4400
131st Session, 2021
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former official of the International Labour Office, impugns the decisions of the Director-General to issue a reprimand against him, to revoke his appointment as a Director, to appoint another person to that post and, finally, to discharge him with notice.
Consideration 20
Extract:
[A]n international organisation cannot be criticised for discounting the probative value of a person’s testimony contradicting the accusations made by that same person before the national courts.
Keywords:
evidence; testimony;
Consideration 19
Extract:
Paragraph 44 of the Standards of Conduct for the International Civil Service, which concerns officials’ “[p]ersonal conduct” and provides that “acts that are generally recognized as offences by national criminal laws will normally also be considered violations of the standards of conduct for the international civil service”, previously states that “[a] conviction by a national court will usually, although not always, be persuasive evidence of the act for which an international civil servant was prosecuted”.
The complainant argues that the principle set out in the second phrase concerning the probative value of convictions by national courts applies, in the words of that phrase, only “generally” and “not always”, and submits that, in the present case, the ILO was in a situation where it should have invoked that exception rather than accepting the offences of which he was accused as proven. However, it is well known that this restriction, placed on the principle in question when the Rules were adopted, was solely intended by the drafters to reserve the case of convictions in States where the courts do not offer the requisite safeguards of independence and procedural fairness. Since there is no doubt that the French legal system fulfils that requirement, the Organization – whose role plainly is not to assess whether a conviction by a national court is justified and which does not have the means to investigate conduct such as that in question in the present case by itself – rightly relied on the judgment of the Tribunal correctionnel and considered that the offences of which he had been accused had been proven.
Keywords:
conduct; criminal sanction; disciplinary procedure; domestic law; evidence;
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