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Standard of proof (725,-666)
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Keywords: Standard of proof
Total judgments found: 28
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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 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 4749
137th Session, 2024
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the termination of his appointment with compensation in lieu of notice.
Consideration 5
Extract:
In disciplinary matters, the Tribunal has consistently found that the burden of proof rests on an organisation to prove the allegations of misconduct beyond reasonable doubt before a disciplinary sanction can be imposed. In respect of the standard of proof, the Tribunal relevantly stated the following in Judgment 4362, considerations 7, 8 and 10:
“7. [...] The relevant legal standard is beyond reasonable doubt. 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 (see, for example, Judgment 3863, consideration 11). Part of the Tribunal’s role is to assess whether the decision-maker properly applied the standard when evaluating the evidence (see Judgment 3863, consideration 8).
8. The standard of proof of beyond reasonable doubt does not exist to create an insuperable barrier for organisations to successfully prosecute disciplinary proceedings against staff members. Indeed, it should not have that effect. What is required is discussed in many judgments of the Tribunal. Rather the standard involves the recognition that often disciplinary proceedings can have severe consequences for the affected staff member, including dismissal and potentially serious adverse consequences on the reputation of the staff member and her or his career as an international civil servant, and in these circumstances it is appropriate to require a high level of satisfaction on the part of the organisation that the disciplinary measure is justified because the misconduct has been proved. The likelihood of misconduct having occurred is insufficient and does not afford appropriate protection to international civil servants. It is fundamentally unproductive to say, critically, this standard is the ‘criminal’ standard in some domestic legal systems and a more appropriate standard is the ‘civil’ standard in the same systems involving the assessment of evidence and proof on the balance of probabilities. The standard of beyond reasonable doubt derived from the Tribunal’s case law as it has evolved over the decades, serves a purpose peculiar to the law of the international civil service.
[...]
10. [...] The standard of beyond reasonable doubt concerns both the finding of specific facts and the overall level of satisfaction that the case against the staff member has been made out. In relation to the proof of any essential relevant fact, the person or body charged with the task of assessing the evidence and making a decision in the context of determining disciplinary proceedings must be satisfied beyond reasonable doubt that a particular fact exists.”
Reference(s)
ILOAT Judgment(s): 3863, 4362
Keywords:
beyond reasonable doubt; disciplinary measure; disciplinary procedure; standard of proof;
Judgment 4709
136th Session, 2023
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the refusal to recognise her illness as attributable to official duty.
Consideration 9
Extract:
Under the Tribunal’s case law, the standard of proof applicable in recognising that an illness is service-incurred is indeed that of the balance of probabilities (see, for example, Judgments 3111, consideration 6, 1971, consideration 15, 1373, consideration 16, and 528, considerations 4 and 5). As that case law sometimes frames it in another manner, it is enough for there to be “a causal link in the legal sense, that is to say, some fairly definite connection” between the diagnosed condition and the alleged occupational origin for a condition to be accepted as service-incurred (see Judgments 3111, consideration 6, and 641, consideration 8).
Reference(s)
ILOAT Judgment(s): 528, 641, 1373, 1971, 3111
Keywords:
illness; service-incurred; standard of proof;
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 12
Extract:
The Tribunal’s case law [...] establishes that, in disciplinary matters, the official’s right to due process means that an organisation 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 official concerned (see, for example, Judgments 4478, consideration 10, 4362, considerations 7, 8 and 10, and 4360, consideration 10).
Reference(s)
ILOAT Judgment(s): 4360, 4362, 4478
Keywords:
beyond reasonable doubt; disciplinary procedure; standard of proof;
Consideration 23
Extract:
In light of these factors, the Tribunal considers that it was not possible for the Director General to depart from the unanimous opinions of the Disciplinary Board and the Joint Committee for Disputes in the way he did. The grounds he gave in the contested decisions do not meet the standard of a clear and cogent demonstration of the Organisation’s ability to conclude beyond reasonable doubt that the complainant was guilty.
Keywords:
beyond reasonable doubt; motivation; standard of proof;
Consideration 21
Extract:
[A]ccording to the settled case law of the Tribunal, the level of proof to which the Organisation is subject in disciplinary matters is proof beyond reasonable doubt (see, for example, Judgments 4478, consideration 10, and 4247, considerations 11 and 12) [...].
Reference(s)
ILOAT Judgment(s): 4247, 4478
Keywords:
beyond reasonable doubt; standard of proof;
Judgment 4633
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose on him the sanction of demotion.
Judgment keywords
Keywords:
case sent back to organisation; complaint allowed; disciplinary measure; staff assessment; standard of proof;
Considerations 9-11
Extract:
It can be seen (and this is conceded by the EPO) that at no point does the Committee refer to the standard of proof applicable in proceedings alleging misconduct, namely beyond a reasonable doubt. It may be doubted that the all-encompassing expression in the “CONCLUSION” of “more than sufficiently probative” should be taken to replace earlier clear intimations that the evidence was simply “sufficient”. In the result, the assessment of the Committee was either that evidence was “sufficient”, “sufficiently detailed and probative”, an event was “overwhelmingly likely” to have occurred or evidence was “more than sufficient”.
There are several judgments of the Tribunal deprecating reliance simply on the sufficiency of evidence as establishing misconduct in disciplinary proceedings. One illustration is found in Judgment 3880, consideration 9, in which the Tribunal said:
“Whether there is sufficient evidence to support a finding of misconduct is a far less onerous evidentiary burden than the requisite ‘beyond a reasonable doubt’ standard of proof. The application of the incorrect standard of proof is a fundamental error of law and requires, on this ground alone, that the impugned decision be set aside.”
Similarly in Judgment 4360, consideration 12, the Tribunal said: “[t]here is a material difference between being satisfied there was sufficient evidence establishing a fact and being satisfied beyond reasonable doubt that the fact existed”.
The language used by the Committee casts real doubt on whether it turned its mind to the appropriate standard of proof. An illustration is found in the Committee’s consideration of the letter sent to the Swedish politician referred to in consideration 6 above. The Committee prefaced its conclusion as to whether the letter was sent by saying “we cannot be sure that this was the letter that was attached” to the email to the Swedish politician but that “it was overwhelmingly likely that it was”. The first part of this formulation manifests doubt. While it is true that the second part manifests a high degree of confidence, it is difficult to say with any certainty that applying the standard of beyond reasonable doubt, the Committee would have come to the conclusion it did.
Reference(s)
ILOAT Judgment(s): 4360
Keywords:
disciplinary measure; standard of proof;
Judgment 4598
135th Session, 2023
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose on her the disciplinary measure of loss of three steps in grade for her failure to observe the standards of conduct expected of staff members.
Consideration 12
Extract:
[A] mere declaration […] that [the Director-General] was satisfied of misconduct beyond reasonable doubt without explaining why, involves a failure to motivate a conclusion at odds with the conclusion of the internal appeals body. This failure, alone, would justify the setting aside of the impugned decision (see Judgments 4400, consideration 10, 4062, consideration 3, and 3969, considerations 10 and 16). What, at a minimum, the Director-General needed to have done was explain why the analysis of the GBA […] was flawed, or did not sustain the ultimate conclusion of the GBA, or both. He did neither.
Keywords:
impugned decision; motivation of final decision; standard of proof;
Consideration 13
Extract:
[T]he Director-General endorsed the conclusions of IOS […] notwithstanding it simply said, “there is sufficient evidence”. There is an obvious tension, if not inconsistency, between endorsing a conclusion based on findings of fact about misconduct on the basis of sufficient evidence and a declaration that the misconduct was proved beyond reasonable doubt. There are several judgments of the Tribunal deprecating reliance simply on the sufficiency of evidence as establishing misconduct in disciplinary proceedings. One illustration is found in Judgment 3880, consideration 9 […]
[I]t can be inferred, in this case, that the mere declaration of the Director-General that the misconduct was proved beyond reasonable doubt did not reflect a genuine and considered evaluation of the evidence, and an assessment of it by reference to the applicable standard of proof.
Reference(s)
ILOAT Judgment(s): 3880
Keywords:
disciplinary measure; motivation of final decision; standard of proof;
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 19
Extract:
The case law of the Tribunal in a situation such as the present is clear. A staff member accused of wrongdoing is presumed to be innocent and is to be given the benefit of the doubt (see, for example, Judgment 2913, consideration 9). The burden of proof of allegations of misconduct falls on the organisation and it must be proved beyond reasonable doubt (see, for example, Judgment 4364, consideration 10). In reviewing a decision to sanction a staff member for misconduct, the Tribunal will not ordinarily engage in the determination of whether the burden of proof has been met but rather will assess whether a finding of guilt beyond reasonable doubt could properly have been made (see, for example, Judgment 4362, considerations 7 to 10).
Reference(s)
ILOAT Judgment(s): 2913, 4362, 4364
Keywords:
benefit of doubt; beyond reasonable doubt; disciplinary measure; presumption of innocence; role of the tribunal; standard of proof;
Judgment 4478
133rd Session, 2022
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to impose on him the disciplinary measure of delayed advancement to the next salary step for a period of 20 months, pursuant to Staff Rule 10.1.1.
Consideration 10
Extract:
As to the issue of the standard of proof, the complainant submits, in his fifth plea, that WIPO erred in applying the “clear and convincing” standard of proof. He adds that due to its failure to meet its prima facie obligation to prove the complainant’s misconduct beyond reasonable doubt, WIPO violated the complainant’s rights to due process and equal treatment. It is true that the Tribunal clearly stated that the applicable standard of proof is beyond reasonable doubt (see, for example, Judgment 3649, under 14, and Judgment 4247, under 11-12). But the standard of beyond reasonable doubt derived from the Tribunal’s case law as it has evolved over the decades, serves a purpose peculiar to the law of the international civil service, as stated in Judgment 4360, consideration 10, and Judgment 4362, considerations 7, 8 and 10:
“Rather the standard involves the recognition that often disciplinary proceedings can have severe consequences for the affected staff member, including dismissal and potentially serious adverse consequences on the reputation of the staff member and her or his career as an international civil servant, and in these circumstances it is appropriate to require a high level of satisfaction on the part of the organisation that the disciplinary measure is justified because the misconduct has been proved. The likelihood of misconduct having occurred is insufficient and does not afford appropriate protection to international civil servants. It is fundamentally unproductive to say, critically, this standard is the ‘criminal’ standard in some domestic legal systems and a more appropriate standard is the ‘civil’ standard in the same systems involving the assessment of evidence and proof on the balance of probabilities.”
The Tribunal notes that Staff Rule 10.1.2(d) of WIPO provides that the applicable standard of proof in disciplinary proceedings is “clear and convincing evidence”. In the present case, it is clear that the facts underlying charge of misconduct are uncontroverted. The reference by the Director General to the “clear and convincing evidence” standard does not detract from the fact that, in substance, the standard of beyond reasonable doubt was met.
Reference(s)
ILOAT Judgment(s): 3649, 4247, 4362
Keywords:
beyond reasonable doubt; disciplinary measure; disciplinary procedure; standard of proof;
Judgment 4461
133rd Session, 2022
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the Director General’s decision to summarily dismiss him.
Consideration 5
Extract:
According to the consistent case law of the Tribunal, the burden of proof rests on an organisation to prove the allegations of misconduct beyond reasonable doubt before a disciplinary sanction can be 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 reasonable doubt could properly have been made by the primary trier of fact (see, for example, Judgments 2699, consideration 9, 3882, consideration 14, 3649, consideration 14, and 4227, consideration 6). Also, a staff member accused of misconduct is presumed to be innocent (see Judgment 2879, consideration 11) and is to be given the benefit of the doubt (see Judgment 2849, consideration 16).
Reference(s)
ILOAT Judgment(s): 2699, 2849, 2879, 3649, 3882, 4227
Keywords:
disciplinary measure; presumption of innocence; role of the tribunal; standard of proof;
Judgment 4364
131st Session, 2021
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 misconduct.
Consideration 10
Extract:
It has been clearly established in the Tribunal’s case law that misconduct must be proven “beyond a reasonable doubt” (see, for example, Judgments 4247, consideration 12, 4227, consideration 6, and 4106, consideration 11, as well as the case law cited therein).
Reference(s)
ILOAT Judgment(s): 4106, 4227, 4247
Keywords:
beyond reasonable doubt; misconduct; standard of proof;
Judgment 4362
131st Session, 2021
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her summary dismissal for serious misconduct.
Considerations 7-8 and 10
Extract:
The relevant legal standard is beyond reasonable doubt. 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 (see, for example, Judgment 3863, consideration 11). Part of the Tribunal’s role is to assess whether the decision-maker properly applied the standard when evaluating the evidence (see Judgment 3863, consideration 8).
The standard of proof of beyond reasonable doubt does not exist to create an insuperable barrier for organisations to successfully prosecute disciplinary proceedings against staff members. Indeed it should not have that effect. What is required is discussed in many judgments of the Tribunal. Rather the standard involves the recognition that often disciplinary proceedings can have severe consequences for the affected staff member, including dismissal and potentially serious adverse consequences on the reputation of the staff member and her or his career as an international civil servant, and in these circumstances it is appropriate to require a high level of satisfaction on the part of the organisation that the disciplinary measure is justified because the misconduct has been proved. The likelihood of misconduct having occurred is insufficient and does not afford appropriate protection to international civil servants. It is fundamentally unproductive to say, critically, this standard is the “criminal” standard in some domestic legal systems and a more appropriate standard is the “civil” standard in the same systems involving the assessment of evidence and proof on the balance of probabilities. The standard of beyond reasonable doubt derived from the Tribunal’s case law as it has evolved over the decades, serves a purpose peculiar to the law of the international civil service.
[...]
The standard of beyond reasonable doubt concerns both the finding of specific facts and the overall level of satisfaction that the case against the staff member has been made out. In relation to the proof of any essential relevant fact, the person or body charged with the task of assessing the evidence and making a decision in the context of determining disciplinary proceedings must be satisfied beyond reasonable doubt that a particular fact exists.
Reference(s)
ILOAT Judgment(s): 3863
Keywords:
beyond reasonable doubt; disciplinary measure; misconduct; standard of proof;
Judgment 4360
131st Session, 2021
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her summary dismissal for serious misconduct.
Considerations 10-11
Extract:
The standard of proof of beyond reasonable doubt does not exist to create an insuperable barrier for organisations to successfully prosecute disciplinary proceedings against staff members. Indeed it should not have that effect. What is required is discussed in many judgments of the Tribunal. Rather the standard involves the recognition that often disciplinary proceedings can have severe consequences for the affected staff member, including dismissal and potentially serious adverse consequences on the reputation of the staff member and her or his career as an international civil servant, and in these circumstances it is appropriate to require a high level of satisfaction on the part of the organisation that the disciplinary measure is justified because the misconduct has been proved. The likelihood of misconduct having occurred is insufficient and does not afford appropriate protection to international civil servants. It is fundamentally unproductive to say, critically, this standard is the “criminal” standard in some domestic legal systems and a more appropriate standard is the “civil” standard in the same systems involving the assessment of evidence and proof on the balance of probabilities. The standard of beyond reasonable doubt derived from the Tribunal’s case law as it has evolved over the decades, serves a purpose peculiar to the law of the international civil service.
[...]
The standard of beyond reasonable doubt concerns both the finding of specific facts and the overall level of satisfaction that the case against the staff member has been made out. In relation to the proof of any essential relevant fact the person or body charged with the task of assessing the evidence and making a decision in the context of determining disciplinary proceedings must be satisfied beyond reasonable doubt that a particular fact exists.
Keywords:
beyond reasonable doubt; disciplinary measure; misconduct; standard of proof;
Judgment 4289
130th Session, 2020
International Centre for Genetic Engineering and Biotechnology
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to renew her appointment for unsatisfactory performance and the decision to reject her harassment complaint.
Consideration 10
Extract:
[T]he approach of the Advisory Panel was fundamentally flawed. In its report [...], the Advisory Panel set out and answered or addressed a series of propositions. The first proposition was: “whether the allegations contained in the [complaint] are sufficiently grounded in fact beyond reasonable doubt and are made in good faith”. The Advisory Panel answered this proposition in the negative. A staff member alleging harassment, and a fortiori in an investigation on a preliminary basis of the type being undertaken, does not need to establish, nor does the person or body evaluating the claim, that the facts establish beyond reasonable doubt that harassment occurred. While an allegation of harassment may found disciplinary proceedings in which the standard of “beyond reasonable doubt” would apply, it has no application in the assessment of the claim of harassment where the staff member is seeking workplace protection or damages or both. This issue has recently been addressed by the Tribunal (see Judgment 4207, consideration 20).
Reference(s)
ILOAT Judgment(s): 4207
Keywords:
harassment; standard of proof;
Judgment 4247
129th Session, 2020
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her dismissal from service for serious misconduct.
Considerations 11-12
Extract:
The complainant is [...] of the view that the decision is flawed because [...] WIPO failed to prove her misconduct beyond a reasonable doubt. [...] In relation to the [...] point the complainant made, as stated in Judgment 3882, in consideration 14:
“It is settled principle that the organization must prove its case against a complainant in a disciplinary matter such as this beyond a reasonable doubt. The complainant argues that the [organization] did not meet that standard of proof in the present case. The Tribunal’s approach when this issue is raised was stated, for example, in consideration 14 of Judgment 3649, as follows:
‘At this juncture, 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’ (see Judgment 2699, consideration 9).”
However, at this juncture, it must also be noted that WIPO’s Staff Rule 10.1.2(d) expressly provides that the applicable standard of proof in disciplinary proceedings is “clear and convincing evidence”.
In the present case, based on a comprehensive investigation, IOD found that there was “clear and convincing evidence that [the complainant] was absent from work without a proper authorization 80 times between 1 October 2014 and 31 March 2015” and that, “[i]n each of [these] instances, [she] had misrepresented her presence at work through e-Work ‘omission to clock’ submissions”. The Tribunal has reviewed the IOD’s investigation report and the extensive evidence referenced in that report. The Tribunal agrees with IOD’s characterization of the evidence as being, at a minimum, “clear and convincing evidence” regarding the complainant’s conduct. It is clear that the facts underlying the charge of misconduct are uncontroverted. The reference by the Director General to the “clear and convincing evidence standard” does not detract from the fact that, in substance, the standard of beyond a reasonable doubt was met.
Reference(s)
ILOAT Judgment(s): 2699, 3649, 3882
Keywords:
burden of proof; disciplinary measure; disciplinary procedure; misconduct; standard of proof;
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 4207
129th Session, 2020
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the Director General’s decision to endorse the conclusion of the Office of Internal Oversight Services that it was unable to make a conclusive determination on her sexual harassment claim and to reject her related request for damages.
Consideration 20
Extract:
Having regard to the distinction mentioned in consideration 14 [of the judgment] between a claim of harassment and a report of misconduct based on an allegation of harassment, the DDG-MT’s decision concerning the complainant’s claim of harassment is fundamentally flawed. The DDG-MT proceeded on the assumption that an allegation of harassment by the aggrieved staff member must not only be borne out by specific acts, the burden of proof being on the reporter of the harassment, but must also prove that the alleged perpetrator of the harassment acted with intent. This in turn resulted in the DDG-MT incorrectly applying the “beyond a reasonable doubt” standard of proof in his consideration of the complainant’s claim of harassment. It is noted that the Tribunal has specifically rejected this assumption that intent on the part of the alleged perpetrator is required in order to establish harassment (see, for example, Judgments 2524, consideration 25, 3233, consideration 6, and 3692, consideration 18, and the case law cited therein). The Tribunal’s case law states that the applicable standard of proof for a finding of harassment in a case such as this is not “beyond a reasonable doubt” but a less onerous standard (see Judgment 3725, consideration 14).
Reference(s)
ILOAT Judgment(s): 2524, 3233, 3692, 3725
Keywords:
harassment; intention of parties; sexual harassment; standard of proof;
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;
Consideration 9
Extract:
It is [...] 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 reasonable doubt could properly have been made by the primary trier of fact’ (see Judgment 2699, consideration 9).
Reference(s)
ILOAT Judgment(s): 2699
Keywords:
disciplinary procedure; misconduct; standard of proof;
Consideration 10
Extract:
In cases of found misconduct based on allegations of fraud resulting in dismissal, the Tribunal has adopted the approach, in order to determine whether a finding of guilt beyond a reasonable doubt could have been made, that it “will not require absolute proof, which is almost impossible to provide on such a matter [involving allegations of fraud or similar conduct]. It will dismiss the complaint if there is a set of precise and concurring presumptions of the complainant’s guilt” (Judgment 3297, consideration 8, and, also more recently, Judgment 3757, consideration 6).
Reference(s)
ILOAT Judgment(s): 3297, 3757
Keywords:
fraud; misconduct; standard of proof; termination of employment;
Consideration 13
Extract:
[I]t is not for the Tribunal to assume the role of fact finder and determine, itself, whether the case is made out that the complainant was guilty of the misconduct alleged. Rather 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”, in this case the President.
Keywords:
disciplinary procedure; evidence; investigation; judicial review; misconduct; standard of proof;
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