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Right to be heard (747,-666)
You searched for:
Keywords: Right to be heard
Total judgments found: 36
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Judgment 4038
126th Session, 2018
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who alleges that he is the victim of institutional harassment and discrimination, seeks redress for the injury he considers he has suffered.
Consideration 6
Extract:
The sole purpose of an investigation is to establish the existence of facts that may be contested during disciplinary proceedings in which the rights of defence must be scrupulously safeguarded. The Tribunal considers that it is “clear that the rules relating to due process, in particular, which must be respected scrupulously during the actual disciplinary proceedings [...] (see, for example, Judgment 2475), do not apply during the investigation of matters brought before an internal auditing body” (see Judgment 2589, under 7). The Tribunal holds that, while it is preferable to notify the person concerned that she or he is to be the subject of an investigation, except where this would be liable to compromise the outcome of the investigation, such notification is not a requisite element of due process (see Judgment 3295, under 8).
Once the investigation is opened, the organisation is under an obligation to provide the person concerned with an opportunity to explain her or his conduct and to present any information on her or his behalf. The Uniform Guidelines for Investigations do not, however, stipulate when the person concerned must be given this opportunity, since the aforementioned paragraph 17 of the Guidelines provides that this matter “is regulated by the rules, policies and procedures of the Organization”. In the International Labour Office there is no internal manual or practical guide setting out the procedure to be followed when conducting such interviews. Like the JAAB, the Tribunal considers that the above-mentioned opportunity should preferably be afforded before rather than during the interview. However, in this case, there is nothing to indicate that the complainant was in any way prevented from defending himself on account of the manner in which the investigation was conducted (see, in this connection, Judgment 2771, under 18).
Reference(s)
ILOAT Judgment(s): 2475, 2589, 2771, 3295
Keywords:
disciplinary procedure; inquiry; investigation; right to be heard;
Judgment 4037
126th Session, 2018
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the non-renewal of her temporary appointment.
Consideration 5
Extract:
A steady line of precedent has it that a decision not to renew a fixed-term contract must be notified to the official concerned in good time, particularly so that she or he may exercise her or his right to appeal against it (in this connection, see Judgments 2104, under 6, 2531, under 9, and 3362, under 16).
However, this case law does not require that the official be given an opportunity to submit comments before that decision is taken.
Reference(s)
ILOAT Judgment(s): 2104, 2531, 3362
Keywords:
fixed-term; non-renewal of contract; right to be heard;
Judgment 3875
124th Session, 2017
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him on disciplinary grounds.
Consideration 3
Extract:
Established precedent has it that before adopting a disciplinary measure, an organization must first inform the staff member concerned that disciplinary proceedings have been initiated and she or he must be given the opportunity to defend herself or himself in adversarial proceedings. The staff member must be able to express her or his point of view and participate in the processing of any evidence which might be considered relevant to discovering the truth.
The case law has also made clear that a disciplinary investigation must be conducted in such a way as to clarify all the relevant facts without compromising the good name of the employee, and that the employee must be given an opportunity to test the evidence against her or him and to answer the charges made (see, in particular, Judgments 2254, under 6(a), 2475, under 7, 2771, under 14 and 15, 3315, under 6, and 3682, under 13).
Reference(s)
ILOAT Judgment(s): 2254, 2475, 2771, 3315, 3682
Keywords:
disciplinary procedure; inquiry; investigation; right to be heard;
Judgment 3755
123rd Session, 2017
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his continuing appointment owing to the abolition of his position.
Consideration 10
Extract:
The Tribunal has repeatedly held that a staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) a decision affecting a personal interest worthy of protection. 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. But such disclosure may not be refused merely in order to strengthen the position of the Administration or one of its officers (see Judgment 3688, under 29, and the case law cited therein).
The Tribunal has also found that the report of the body responsible for conducting a reassignment process […] is analogous not to the records of confidential discussions, but to the final report of a selection committee which may be disclosed to the staff member concerned, if necessary with redactions to ensure the confidentiality of third parties (see Judgment 3290, under 24).
Reference(s)
ILOAT Judgment(s): 3290, 3688
Keywords:
adversarial proceedings; confidential evidence; disclosure of evidence; duty to inform; evidence; right to be heard;
Judgment 3732
123rd Session, 2017
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss his allegations of harassment and abuse of authority as unfounded.
Consideration 6
Extract:
In consideration 19 [of Judgment 3640] the Tribunal noted the established case law “according to which ‘a staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him’ and, ‘under normal circumstances, such evidence cannot be withheld [by this authority] on the grounds of confidentiality’ (see Judgment 2229, under 3(b), to which Judgment 3295, under 13, refers)”.
However, the Tribunal went on to observe in consideration 20 that: “[A]s is expressly indicated by the use of the terms ‘as a general rule’ and ‘under normal circumstances’ in the above excerpts of judgments, the case law in question does allow some exceptions to the principle which it establishes.”
Reference(s)
ILOAT Judgment(s): 2229, 3295, 3640
Keywords:
adversarial proceedings; confidential evidence; right to be heard;
Judgment 3640
122nd Session, 2016
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the disciplinary measure of his summary dismissal in the wake of a sexual harassment complaint filed against him by one of his colleagues.
Considerations 17-21
Extract:
[T]he complainant contends with greater cogency that he was never provided with the full content of the witness statements forming the basis of the accusations against him, nor was he informed of the witnesses’ names. It is true that the witness statements were not appended to the report drawn up at the end of the investigation and, as mentioned in a footnote in that document, the identity of the witnesses was deliberately not disclosed. [...]
[T]his strict observance of confidentiality by UNESCO might be seen as departing from the Tribunal’s established case law according to which “a staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him” and, “under normal circumstances, such evidence cannot be withheld [by this authority] on the grounds of confidentiality” (see Judgment 2229, under 3(b)), to which Judgment 3295, under 13, refers). [...]
[W]here disciplinary proceedings are brought against an official who has been accused of harassment, testimonies and other materials which are deemed to be confidential pursuant to provisions aimed at protecting third parties need not be forwarded to the accused official, but she or he must nevertheless be informed of the content of these documents in order to have all the information which she or he needs to defend herself or himself fully in these proceedings. As the Tribunal has already had occasion to state, in order to respect the rights of defence, it is sufficient for the official to have been informed precisely of the allegations made against her or him and of the content of testimony taken in the course of the investigation, in order that she or he may effectively challenge the probative value thereof (see Judgment 2771, under 18).
In the instant case, the investigation report contained an extremely detailed description of all the instances of unwelcome behaviour by the complainant towards the 21 women identified as victims of his conduct, and their names were given in almost all cases. The complainant was therefore plainly apprised of the content of all the testimony taken during the investigation and of the e-mails which he had not been allowed to see. Furthermore, although, as stated above, the identity of the witnesses was not revealed to him, it is obvious that most of the information recorded in the report could only have come from the 21 persons concerned themselves. The complainant was therefore given a real opportunity to dispute the various items of evidence gathered in the course of proceedings against him. Moreover, it is clear from the above-mentioned comments which he submitted to the Organization on 18 November 2011 to rebut the charges of which he had been notified, that he had in fact been able to prepare them without any particular difficulty. Indeed, he himself described these comments as “clarifications and objections to the accusations of sexual harassment against [him], based on the whole file, and in particular on the IOS investigation report”.
Reference(s)
ILOAT Judgment(s): 2229, 2771, 3295
Keywords:
adversarial proceedings; confidential evidence; disciplinary procedure; due process; evidence; harassment; inquiry; investigation; right to be heard; sexual harassment; witness;
Judgment 3272
116th Session, 2014
Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully challenges the decision not to appoint her to a vacant post due to procedural flaw and violation of her right to due process.
Consideration 15
Extract:
"The Tribunal has consistently affirmed the confidentiality of the records of the discussions regarding the merits of the applicants for a post. However, this does not extend to the reports regarding the results of the selection process with appropriate redactions to ensure the confidentiality of third parties."
Keywords:
adversarial proceedings; confidential evidence; disclosure of evidence; due process; duty to inform; organisation's duties; procedural flaw; right to be heard; selection board; selection procedure;
Judgment 3216
115th Session, 2013
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests her performance appraisal for its content and on the basis of what she considers to be procedural flaws.
Consideration 6
Extract:
"A fundamental principle of the adversarial process is the right to know and have an opportunity to respond to the evidence adduced by the opposing party (see Judgments 1815, under 5, and 2700, under 6). Upon receipt of the report, the Board, which ultimately relied upon it, was obliged to advise the complainant of the receipt of new evidence and give her an opportunity to respond before taking it into consideration."
Reference(s)
ILOAT Judgment(s): 1815, 2700
Keywords:
adversarial proceedings; advisory body; case law; confidential evidence; disclosure of evidence; duty to inform; general principle; organisation's duties; right to be heard; staff member's interest;
Judgment 3139
113th Session, 2012
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 4 and 5
Extract:
The complainant has no grounds to regard the refusal to renew her contract as a disguised disciplinary measure imposed in retaliation for the internal appeals against her suspension [...].
Moreover, the decision of 31 March 2010 cannot be regarded as a dismissal decision; it was simply a decision not to renew a contract which was due to expire because, at that date, no request for review having been submitted within the prescribed time limit, the decision of 17 November 2009 extending the complainant’s appointment for five months had become final (see Judgment 3140, also delivered this day).
Although the decision of 31 March 2010 was therefore neither a disciplinary measure nor a dismissal, the complainant’s right to be heard had to be respected nonetheless.
Reference(s)
ILOAT Judgment(s): 3140
Keywords:
hidden disciplinary measure; non-renewal of contract; right to be heard; termination of employment;
Judgment 3138
113th Session, 2012
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
Suspension is an interim precautionary measure which, in principle, must be adopted urgently, and this will often make it impossible to invite the person concerned to express their opinion beforehand. However, this person’s right to be heard must be exercised before the substantive decision is taken to impose a disciplinary sanction (see Judgment 2365, under 4(a)).
Reference(s)
ILOAT Judgment(s): 2635
Keywords:
due process; right to be heard; suspension;
Judgment 3124
113th Session, 2012
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Judgment keywords
Keywords:
complaint allowed; decision quashed; health reasons; right to be heard; termination of employment; termination of employment for health reasons;
Considerations 3 and 5
Extract:
According to the Tribunal's case law, an organisation cannot unilaterally alter the status of a staff member before giving him or her an opportunity to express a view on the action that it intends to take (see in particular Judgments 1484, under 8, and 1817, under 7 ).
[...]
The Tribunal considers that, although the defendant's assertions may be correct, the fact remains that there is nothing in the file to show that the requirement in the above-mentionned case law has been met. Indeed, there is no evidence that the complainant was expressly informed by the ITU that her appointment was to be terminated for health reasons and that she was thus given the opportunity to state her views on that termination in advance.
Reference(s)
ILOAT Judgment(s): 1484, 1817
Keywords:
duty of care; duty to inform; right to be heard;
Judgment 3065
112th Session, 2012
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 7-8
Extract:
The Tribunal notes that the evidence does not show that the complainant could have attended the witnesses' interviews, or that she was offered an opportunity to comment on their testimony, in order to have certain items of information rectified where necessary, or to have it put on record that she disagreed with witnesses. The Tribunal considers that even if, in the instant case, the investigator could not invite the complainant to attend all the interviews, she ought to have been allowed to see the testimony in order that she might challenge it, if necessary, by furnishing evidence. Since this was not the case, the Tribunal finds that the adversarial principle was not respected. It follows from the foregoing [...] that the [impugned] decision [...], which thus rested on a flawed investigation report, must be set aside.
Keywords:
adversarial proceedings; breach; consequence; duty to inform; elements; evidence; flaw; harassment; inquiry; investigation; mistake of fact; oral proceedings; organisation's duties; procedural flaw; report; right to be heard; testimony;
Judgment 3055
112th Session, 2012
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
Consistent with the Tribunal’s case law that “it will not order the production of documents on the speculative basis that something might be found to further the complainant’s case” (Judgment 2510, under 7), the complainant’s application is refused.
Reference(s)
ILOAT Judgment(s): 2510
Keywords:
adversarial proceedings; duty to inform; right to be heard;
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 1977
89th Session, 2000
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"[The complainant] argues that because the Tribunal found in Judgment 1763 that the Director of the Division of Personnel should not have both collected evidence at the investigation stage and sat as chairman of the Joint Disciplinary Board at the deliberative stage, the consequence must be that any evidence collected in that flawed process must be forever tainted [...] The complainant is wrong. Judgment 1763 did not find that the investigation process was itself flawed but made it clear that the manner in which it had been carried out in part by a person who was also Chairman of the Joint Disciplinary Board vitiated the latter's deliberative functions. The evidence itself remained both admissible and relevant and as long as both the [Office of Internal Audit and Evaluation Support] and the ad hoc panel offered the complainant full opportunity to comment on and respond to it, which they did, the complainant has no legitimate grounds for objecting thereto."
Reference(s)
ILOAT Judgment(s): 1763
Keywords:
admissibility of evidence; appraisal of evidence; conflict of interest; disciplinary procedure; evidence; evidence during investigation; inquiry; investigation; procedural rights during investigation; right to be heard;
Judgment 1897
88th Session, 2000
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
A general principle of law has it that the legal situation of someone cannot be modified before they have had an opportunity to be heard. This principle is also valid for international organisations and the Tribunal [...].
Keywords:
adversarial proceedings; organisation's duties; right to be heard;
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