Adversarial proceedings (183, 184,-666)
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Keywords: Adversarial proceedings
Total judgments found: 86
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Judgment 2771
106th Session, 2009
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 18
Extract:
"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 (for example, Judgments 999 and 2475), to object to evidence (for example, Judgment 2468) or to have a verbatim record of the evidence (for example, Judgment 1384). 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 to the Assistant Director-General and, later, the Director of the Human Resources Management Division, 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. Moreover, the complainant had and exercised a right of appeal to the Appeals Committee. There is no suggestion that he was in any way circumscribed in the way his appeal was conducted. Accordingly, the process, viewed in its entirety from the making of the subordinate's harassment complaint until the Committee reported to the Director-General, was one that satisfied the requirements of due process."
Reference(s)
ILOAT Judgment(s): 999, 1384, 2468, 2475
Keywords:
adversarial proceedings; disciplinary procedure; due process; evidence; inquiry; investigation; organisation's duties; right to reply; testimony;
Consideration 15
Extract:
"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."
Reference(s)
ILOAT Judgment(s): 2475
Keywords:
adversarial proceedings; appraisal of evidence; disciplinary procedure; due process; evidence; inquiry; investigation; organisation's duties; procedure before the tribunal; respect for dignity; right to reply;
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 2724
105th Session, 2008
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"The Reports Board, which is set up by the Director-General and establishes its own procedure, in accordance with the provisions of Article 10.3 of the Staff Regulations, cannot be regarded as either an internal appeals body or a judicial body. Where an official has had the opportunity to state his or her point of view before the Board and to comment on the relevant supervisors' assessments of his or her performance and conduct, the adversarial principle can reasonably be deemed to have been observed."
Reference(s)
Organization rules reference: Article 10.3 of the Staff Regulations of the ILO
Keywords:
adversarial proceedings; advisory body; conduct; internal appeals body; organisation's duties; procedure before the tribunal; right to reply; staff regulations and rules; supervisor; work appraisal;
Judgment 2601
102nd Session, 2007
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"The Tribunal does not consider that in this case the requirements of due process were disregarded. The complainant was informed of the statements taken immediately after the incident and those gathered subsequently, and indeed of the observations made by the Chief of the Conferences Department, and he had several opportunities to express his own views and to comment on the documents submitted to the Joint Advisory Committee. There was no written rule or principle which obliged the Administration to take down those statements in the presence of the complainant, given that they were not used without his knowledge, or to hold a face-to-face meeting or a reconstitution on the spot of this regrettable incident."
Reference(s)
ILOAT Judgment(s): 999, 1133
Keywords:
adversarial proceedings; advisory body; inquiry; investigation; right to reply; testimony;
Judgment 2598
102nd Session, 2007
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 6-7
Extract:
"Having studied the submissions the Tribunal notes that, in the internal appeal he filed on 30 September [...], the complainant expressly reserved the right to set out his position on the receivability of his appeal in the light of any explanations the Administration might supply in support of its reply; that in that reply the Organization dealt at length with the receivability of the internal appeal; that in his letter of 20 October [...] the complainant asked to be allowed to submit a rejoinder to the Organization's reply and to have the said reply, which was in English, translated into French to enable him to 'actually find out what it said'; and that the Appeal Board wrote its report four days after this request on which it had not acted.
In view of the [...] circumstances the Tribunal considers that, as the receivability of the appeal was disputed in the Organization's reply, respect for the principle of due process and the right to be heard required that the complainant be afforded an opportunity to present his point of view.
The Tribunal holds that, although the Appeal Board was not obliged to accede to the complainant's request concerning translation of the Organization's reply, it ought to have informed the complainant so that he could, by his own means, 'actually find out' what the reply said and, if necessary, submit a rejoinder within a reasonable period of time, as he wished to do.
The Tribunal considers that, as a result, the failure to observe the principle of due process deprived the complainant of his right to be heard on the essential issue of the receivability of his appeal."
Keywords:
adversarial proceedings; decision quashed; duty to inform; good faith; internal appeal; internal appeals body; language of rule; organisation's duties; receivability of the complaint; rejoinder; reply; report; right to be heard;
Judgment 2515
100th Session, 2006
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 18
Extract:
"The decision to advertise the complainant's post [...] was in substance a decision to dismiss him from that post. No reason was ever provided for that decision [...] In the circumstances, it must be concluded that the decision resulted from the management review [conducted by the Chief of the Personnel and Social Protection Department]. In this regard, it is necessary only to observe that that review involved a denial of due process in that the complainant was not told precisely who had criticised his performance or conduct, nor was he told exactly what they had said. Moreover, he was not given an opportunity to question them or to rebut what was put against him. The decision to dismiss him from his post thus involved a serious breach of the requirements of due process."
Keywords:
adversarial proceedings; breach; competition; contract; decision; due process; duty to inform; duty to substantiate decision; non-renewal of contract; organisation's duties; post; post held by the complainant; right to reply; unsatisfactory service; vacancy notice;
Judgment 2513
100th Session, 2006
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"The Tribunal notes [...] that in the absence of special circumstances such as a compelling need to preserve confidentiality, internal appellate bodies such as the [Joint Appeals Board] must strictly observe the rules of due process and natural justice and that those rules normally require a full opportunity for interested parties to be present at the hearing of witnesses and to make full answer in defence."
Keywords:
adversarial proceedings; applicable law; confidential evidence; due process; exception; general principle; internal appeals body; organisation's duties; procedure before the tribunal; right to reply; testimony;
Judgment 2496
100th Session, 2006
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"A decision as serious as one imposing a disciplinary measure will be lawful only provided that the rights of the staff members concerned to a fully adversarial procedure have been scrupulously respected. Charges must be precisely worded and notified sufficiently early to enable the staff member concerned to defend his case, particularly by establishing evidence and gathering testimonies which he believes are likely to refute the charges in the eyes of the disciplinary body and of the deciding authority, according to the nature of the charges against him."
Keywords:
adversarial proceedings; advisory body; condition; date of notification; decision; disciplinary measure; disciplinary procedure; disclosure of evidence; executive head; official; organisation's duties; right; right to reply; testimony; time limit;
Judgment 2475
99th Session, 2005
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 20
Extract:
"It has been consistently held by the Tribunal that an employee of an international organisation has a right to be heard in disciplinary proceedings and, as said in Judgment 203, that 'right includes inter alia the opportunity to participate in the examination of the evidence'. As that judgment makes clear, that is so even 'in the absence of any explicit text'."
Reference(s)
ILOAT Judgment(s): 203
Keywords:
adversarial proceedings; case law; disciplinary procedure; disclosure of evidence; no provision; official; organisation; right; right to reply;
Consideration 22
Extract:
The complainant was dismissed on the grounds of misconduct following an investigation. "The procedure adopted in this case was clearly flawed in that the complainant was denied the opportunity to question any of the persons whose statements were used against him, evidence of little probative value was relied upon and, at least to some extent, he was required to prove his innocence instead of having the matters alleged proven against him. [...] It follows that the [...] decision [...] to dismiss the complainant must be set aside. The complainant shall be reinstated [...] and shall receive all arrears of salaries and other benefits; he must account for any earnings from other employment."
Keywords:
adversarial proceedings; breach; burden of proof; consequence; disciplinary measure; evidence; inquiry; investigation; lack of evidence; procedural flaw; reinstatement; serious misconduct; staff member's duties; termination of employment; testimony;
Judgment 2468
99th Session, 2005
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 17
Extract:
"The procedures used to assess the performance of international civil servants must be both transparent and adversarial."
Keywords:
adversarial proceedings; official; organisation's duties; work appraisal;
Judgment 2416
98th Session, 2005
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 8 and 11
Extract:
"The EPO's position is that because the claim for damages was made as an oral submission during the [Appeals] Committee hearings [...], rather than being included in the complainant's original written submissions, it was not actually part of the internal appeal and therefore cannot now be claimed before the Tribunal. [...]
The objection to receivability is misconceived. The Appeals Committee accepted that the complainant could make a claim for damages and heard both parties on the question. The reason that the Tribunal insists that any claim made before it must first have been asserted in the internal appeal process is that Article VII(1) of its Statute demands that the complainant first exhaust any available internal means of redress. The EPO has not shown that there is any equivalent provision relating to internal appeals, and it is desirable that such appeals should be as unencumbered as possible by procedural obstacles provided that elementary fairness is observed."
Reference(s)
ILOAT reference: Article VII(1) of the Statute
Keywords:
adversarial proceedings; claim; equity; general principle; iloat statute; internal appeal; internal appeals body; internal remedies exhausted; moral injury; new claim; oral proceedings; receivability of the complaint;
Judgment 2355
97th Session, 2004
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"Along with the obligation for an international organisation to give reasons when the executive head decides not to follow the recommendation of its internal appeal body (see Judgments 2092 and 2261), it has the duty in its pleadings before the Tribunal not to rely on new and different reasons which it failed to invoke in the impugned decision."
Reference(s)
ILOAT Judgment(s): 2092, 2261
Keywords:
adversarial proceedings; decision; difference; duty to substantiate decision; executive head; general principle; grounds; iloat; internal appeals body; motivation; motivation of final decision; organisation; organisation's duties; recommendation; refusal; report;
Judgment 2288
96th Session, 2004
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"[T]he fact that the complainant had only a few hours [...] to defend his case [...] constitutes [in itself] a breach of due process".
Keywords:
adversarial proceedings; disciplinary procedure; general principle; misconduct; organisation's duties; right; time limit;
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 2254
95th Session, 2003
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"According to firm precedent, before deciding a disciplinary sanction, an organisation should inform the person concerned that disciplinary proceedings have been initiated and should allow him ample opportunity to take part in adversarial proceedings, in the course of which he is given the opportunity to express his point of view, put forward evidence and participate in the processing of the evidence submitted in support of the charges against him. ... Failing a valid waiver on the part of the complainant of the adversarial proceedings provided for in the staff rules, the Director-General incorrectly based his decision on information that was not gathered in the context of adversarial proceedings guaranteeing the complainant's right to be heard. Since the complainant was not given the opportunity to put forward a proper defence, this fundamental flaw must cause the impugned decision to be set aside."
Keywords:
adversarial proceedings; appraisal of evidence; case law; disciplinary measure; disciplinary procedure; disclosure of evidence; due process; evidence; organisation's duties; procedural flaw; right to reply; staff regulations and rules;
Judgment 2232
95th Session, 2003
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 16
Extract:
The complainant, who had been the Organisation's Director-General, impugns the decision to terminate his appointment. "In accordance with the established case law of all international administrative tribunals, the Tribunal reaffirms that the independence of international civil servants is an essential guarantee, not only for the civil servants themselves, but also for the proper functioning of international organisations. In the case of heads of organisations, that independence is protected, inter alia, by the fact that they are appointed for a limited term of office. To concede that the authority in which the power of appointment is vested - in this case the Conference of the States parties of the Organisation - may terminate that appointment in its unfettered discretion, would constitute an unacceptable violation of the principles on which international organisations' activities are founded [...], by rendering officials vulnerable to pressures and to political change. The possibility that a measure of the kind taken against the complainant may, exceptionally, be justified in cases of grave misconduct cannot be excluded, but such a measure, being punitive in nature, could only be taken in full compliance with the principle of due process, following a procedure enabling the individual concerned to defend his or her case effectively before an independent and impartial body."
Keywords:
adversarial proceedings; appointment; breach; case law; condition; discretion; exception; executive body; executive head; fixed-term; general principle; hidden disciplinary measure; iloat; independence; internal appeals body; limits; member state; official; organisation; right to reply; safeguard; serious misconduct; termination of employment; tribunal;
Judgment 2090
92nd Session, 2002
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The organisation asserts that "Article 1010.1 allows it to terminate an appointment by giving one month's notice per year of service [...] The Tribunal observes that [...] 1010.1 may not be interpreted as authorising [the organisation] to terminate [fixed- term] contracts arbitrarily. Decisions of this kind must be based on unsatisfactory performance, or the interests of the service. Furthermore, there must be no breach of adversarial procedure nor any error of fact or of law, nor abuse of authority, nor obvious misappraisal of the facts."
Reference(s)
Organization rules reference: ARTICLE 1010.1 OF THE IFRC STAFF REGULATIONS
Keywords:
abuse of power; adversarial proceedings; bias; contract; due process; duty to substantiate decision; fixed-term; grounds; mistake of fact; mistaken conclusion; misuse of authority; notice; organisation's duties; organisation's interest; provision; staff regulations and rules; termination of employment; unsatisfactory service;
Judgment 2088
92nd Session, 2002
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 27
Extract:
The complainant seeks "a termination indemnity under Rule 109.5 which does not deal with indemnities. These are in fact dealt with under 109.7 [...] the question of a termination indemnity was not argued before the Tribunal probably because the complainant did not cite the number of the Staff Rule correctly. The Tribunal considers that the question of a claim under 109.7 (mistakenly referred to as 109.5) should be returned to the parties for argument on this single issue".
Reference(s)
Organization rules reference: UNESCO STAFF RULE 109.5 UNESCO STAFF RULE 109.7
Keywords:
adversarial proceedings; complainant; enforcement; iloat; provision; remand; request by a party; staff regulations and rules; terminal entitlements;
Judgment 2062
91st Session, 2001
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"The Tribunal will not use [the confidential documents submitted by the organisation] to the complainant's detriment unless he has had the opportunity to see them beforehand".
Keywords:
adversarial proceedings; complainant; confidential evidence; disclosure of evidence; evidence; right to reply; submissions; tribunal;
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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