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Confidentiality (905,-666)
You searched for:
Keywords: Confidentiality
Total judgments found: 20
Judgment 4804
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to reject his appeal seeking, in the main, moral damages for breach of confidentiality and defamation.
Consideration 3
Extract:
[E]ven though the breach of confidentiality is proven (as it has been acknowledged by the EPO), there is no evidence that the complainant suffered any damage as a result of that breach. Considering all the facts and relevant circumstances of the present case, […] the Tribunal finds that the complainant’s request for damages is unsubstantiated.
Keywords:
breach of confidentiality; burden of proof; confidentiality; moral damages; moral injury;
Judgment keywords
Keywords:
administrative decision; complaint dismissed; confidentiality; defamation; injunction;
Judgment 4756
137th Session, 2024
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to conduct an investigation into his allegation of breach of confidentiality and to deny his request for compensation.
Consideration 8
Extract:
The Tribunal has addressed the issue of the IAEA’s duty to maintain the confidentiality of a staff member’s personnel information, as stated in Judgment 4012, consideration 3:
“[T]he filing of confidential personnel information in a publicly accessible email folder constituted a breach of the Organization’s duty to maintain the confidentiality of a staff member’s personnel information. The complainant, however, did not suffer any damage because of this breach. Leaving aside the fact that the complainant did not submit any evidence whatsoever let alone evidence establishing damage to his reputation or otherwise [...] As soon as the emails were located, they were immediately removed. Taking this into account, there will be no award of moral damages for the breach.”
The filing of the letter of 11 November 2016, which contained confidential information, in electronic folders accessible to all staff members constituted a breach of the organization’s duty to maintain the confidentiality of a staff member’s personnel information. In the present case, however, the Director, Division of Human Resources (MTHR) took immediate steps to remedy the design flaw in the ERMS thereby preventing the document from being accessible. The IAEA’s Livelink platform was upgraded to eliminate the risk of such a flaw occurring in the future. In these circumstances, the complainant has not submitted evidence establishing damage to his reputation or other injury arising out of the temporary accessibility of the above-mentioned letter. As the complainant has not presented any persuasive evidence in support of his claim for damages, this request must be rejected.
Reference(s)
ILOAT Judgment(s): 4012
Keywords:
confidentiality; moral damages;
Judgment keywords
Keywords:
complaint dismissed; confidentiality; disclosure of evidence; investigation;
Judgment 4751
137th Session, 2024
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the ICC’s refusal to grant his request for several special post allowances.
Consideration 5
Extract:
As a counterclaim, the ICC has asked the Tribunal “to award costs against the [c]omplainant, including the costs of filing submissions”, on the grounds that he “pointlessly and wilfully initiated and prolonged a dispute, with considerable consequences for the defendant [o]rganisation’s resources in terms of the related costs”, in particular by refusing the offer of an amicable settlement.
While it follows from what has been said above that the complaint is unfounded, that does not mean that it can be considered as vexatious. Admittedly, in the present case, the organisation does not contend that the complaint is vexatious on account of its actual content but that the complainant did not have a legitimate reason for filing it since he was offered an amicable settlement. However, the Tribunal cannot take account of information concerning any negotiations – which are inherently confidential – conducted by the parties with a view to settling a dispute before it amicably (see Judgments 4457, consideration 2, and 3586, consideration 5). Hence it could not, in any event, issue orders on the basis of such information (see Judgment 4639, consideration 11).
There are therefore no grounds for granting the ICC’s counterclaim.
Reference(s)
ILOAT Judgment(s): 3586, 4457, 4639
Keywords:
amicable settlement; confidentiality; counterclaim;
Judgment 4663
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the refusal to acknowledge the harassment that she alleges she suffered and to provide her with the full inquiry report drawn up following her internal complaint against a colleague.
Considerations 6-7
Extract:
As regards [...] the failure to disclose to the complainant the entire preliminary inquiry report, which was central to the case, before the Joint Appeals Committee delivered its opinion and the Secretary General adopted the impugned decision, it is well settled that a staff member must, as a general rule, have access to all the evidence on which an authority bases or intends to base a decision that adversely affects her or him (see Judgment 4622, consideration 12). Under normal circumstances, such evidence cannot be withheld on grounds of confidentiality (see Judgment 4587, consideration 12).
Furthermore, the Tribunal has consistently stated that a staff member must be 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 (see Judgments 4412, consideration 14, 3413, consideration 11, and 3347, considerations 19, 20 and 21). In Judgment 4541, consideration 3, the Tribunal accordingly confirmed that a refusal to disclose an investigation report to a staff member in good time – even in a situation where, contrary to what happened in the present case, the report would have been provided at the same time as the organisation’s final decision – has the consequence of denying the staff member the opportunity to meaningfully challenge the findings of the investigation concerned in internal appeal proceedings conducted within the organisation.
In Judgment 4217, consideration 4, the Tribunal emphasised the importance of disclosing an investigation report similar to the one which the complainant had requested in the present case and noted that the fact that the complainant was ultimately able to obtain a copy of the report during the proceedings before the Tribunal did not remedy the flaw tainting the internal appeal process [...].
Lastly, in Judgment 4471, consideration 23, the Tribunal stated that the disclosure of extracts of a preliminary investigation report is generally not sufficient and an organisation is required to disclose the entire report, even if this means redacting it to the extent necessary to maintain the confidentiality of some aspects of the investigation, linked in particular to protecting the interests of third parties.
In the present case, the Tribunal considers that, having regard in particular to the content of the witness statements taken during the preliminary inquiry, from which it is plain that their disclosure was not liable to adversely affect the interests of third parties, there was nothing to prevent the complainant from being provided in good time with the full report of that inquiry and the transcripts of interviews that were appended to it. Such disclosure was essential if the complainant’s rights were to be observed, since the Secretary General and the Joint Appeals Committee relied on those documents and the complainant should therefore have been given the opportunity to comment on them.
The complainant requested a copy of the preliminary inquiry report of 10 October 2017 on no fewer than four occasions. The Joint Appeals Committee was aware of these requests, as was the Secretary General. During the internal appeal proceedings, however, the Organization merely quoted short excerpts from the report in its submissions, without providing the complainant with the full report. This response was incomplete and insufficient. Furthermore, although the Committee itself requested the full report and considered the report during its examination of the case, it did not inform the complainant of the full content of the report at any point. Staff Rules 10.3.2(5) and 10.3.4(3) provide that the official must have access to the documents and forms of evidence submitted to a joint committee and the official must have the opportunity to express her- or himself on the evidence used as a basis for a consultative opinion. Moreover, although Staff Rule 10.3.5(1,b) provides that a joint committee’s opinion must include a copy of the relevant documents submitted to it, the inquiry report was not appended to the opinion of the Joint Appeals Committee.
In the impugned decision the Secretary General endorsed the Committee’s recommendations, which referred to the inquiry report, but failed to send it to the complainant yet again. The Tribunal recalls that, in that decision, the Secretary General confirmed his earlier decision of 1 December 2017, which had rejected the complainant’s request for review by referring to what must be understood as the transcripts of the witness interviews conducted by the investigators, without their having been sent to the complainant at any time.
The Tribunal is not persuaded by the Organization’s attempt to justify the decision not to provide a copy of the report or the transcripts on the basis of the requirement that they be kept confidential. It notes that the Organization eventually provided the complete inquiry report and its annexes without redacting them at all, which shows that the Organization itself ultimately admitted that there was nothing preventing their disclosure.
It follows from the above that the complainant’s plea in this respect is well founded. These irregularities in the internal procedure constitute a substantial defect rendering both the impugned decision and the prior decision of 1 December 2017 unlawful.
Reference(s)
ILOAT Judgment(s): 3347, 3413, 4217, 4412, 4471, 4541, 4587, 4622
Keywords:
confidentiality; disclosure of evidence; harassment; investigation report;
Judgment 4659
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him for serious misconduct.
Consideration 4
Extract:
The Tribunal notes that it is undisputed that the preliminary inquiry report was never sent to the complainant in its entirety, even in a version redacted to the extent necessary to maintain the confidentiality of some aspects of the investigation, linked in particular to protecting the interests of third parties. It is true that, as the Organization argues, the actual disciplinary proceedings were only initiated by the notification of the Secretary General’s confidential memorandum of 26 March 2018. However, the fact remains that the preliminary inquiry report also constitutes obviously an important element of the proceedings in the present case, since the charges initially brought against the complainant were based on that report and it had been forwarded to both the Joint Disciplinary Committee and the Joint Appeals Committee, which took it into consideration in their respective opinions.
It follows that Staff Rule 10.3.2(5), under which the official concerned “[shall] have access to all documents and forms of evidence submitted to the Joint Committees” was not complied with and there was a breach of due process as established in the Tribunal’s case law (see Judgments 4412, consideration 14, 4310, consideration 11, and 3295, consideration 13).
Reference(s)
ILOAT Judgment(s): 3295, 4310, 4412
Keywords:
adversarial proceedings; confidentiality; disciplinary measure; disciplinary procedure; disclosure of evidence; investigation report;
Judgment 4547
134th Session, 2022
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision of the President of IFAD to find her internal complaint of harassment and abuse of authority unfounded.
Consideration 10
Extract:
It is well settled in the Tribunal’s case law that an international organisation is bound to grant a request from the staff member concerned for a copy of the report delivered by the investigative body at the end of an investigation into a harassment complaint, even if that means the report must be redacted in order to maintain the confidentiality of some aspects of the investigation, in particular the testimony gathered during that investigation (see, in particular, Judgments 3347, considerations 19 to 21, and 3831, consideration 17, and also Judgments 3995, consideration 5, and 4217, consideration 4).
Reference(s)
ILOAT Judgment(s): 3347, 3831, 3995, 4217
Keywords:
confidentiality; disclosure of evidence;
Judgment 4524
134th Session, 2022
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to appoint, as a development reassignment, Ms V.M. to the post of Client Relationship Manager.
Consideration 6
Extract:
[T]he duty to produce documents does not extend to confidential interview reports (see, for example, Judgments 3032, consideration 11, and 4023, consideration 8).
Reference(s)
ILOAT Judgment(s): 3032, 4023
Keywords:
confidentiality; disclosure of evidence; selection procedure;
Judgment 4522
134th Session, 2022
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to conduct an investigation into allegations of breach of confidentiality and the refusal to disclose two documents.
Judgment keywords
Keywords:
complaint dismissed; confidentiality; disclosure of evidence; investigation;
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 4471
133rd Session, 2022
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss his complaint of psychological harassment.
Consideration 14
Extract:
It is plain from Judgments 4167 and 4217, which also concern complaints of psychological harassment, that a decision is rendered unlawful by the refusal of an organisation’s executive head to disclose to the joint appeals body the report of the investigation into the harassment complaint lodged by the official concerned, or at least a redacted copy thereof. Similarly, in the aforementioned Judgment 4217, considerations 4 to 6, the Tribunal points out that, according to settled case law, a staff member must, as a general rule, have access to all the evidence on which the competent authority bases its decision concerning her or him. In this case, the Joint Committee for Disputes, on whose opinion the Director General states he bases his decision of 15 December 2016, was not provided with the investigation report concerned. Nor had the complainant received it by the time he was notified on 14 January 2016 that his psychological harassment complaint had been closed. In Judgment 4081, the Tribunal recalls that the reasons for a decision must be sufficiently explicit to enable the person concerned to understand why it was taken and the Tribunal to exercise its power of review. In the present case, the Director General neither provided information nor referred to the Committee’s reasons that would allow the complainant to understand why the decision was taken.
Reference(s)
ILOAT Judgment(s): 4167, 4217
Keywords:
confidentiality; final decision; harassment; internal appeals body; investigation report; motivation; motivation of final decision; procedural flaw;
Consideration 23
Extract:
Among his various claims, the complainant asks to be provided with the complete preliminary investigation report. The Tribunal notes that the Organisation has already disclosed various parts thereof to the complainant. However, [...] it was in fact required to disclose the entire report, even if that meant redacting it to the extent necessary to maintain the confidentiality of some aspects of the investigation, in particular to protect the interests of third parties. The Tribunal will therefore make such an order.
The complainant also requests access to all “testimony and interviews gathered”. However, given the requirement of confidentiality [...], the Tribunal will not grant this request.
Keywords:
competence of tribunal; confidentiality; order to communicate a report;
Considerations 19-20
Extract:
Since the Tribunal’s role is to determine whether the Director General and the preliminary investigation report on which he based his decision [...] demonstrate a careful examination of the objective circumstances surrounding the acts complained of, it is clear that the Tribunal is not in a position to do so without having the entire investigation report available. [...]
In such a situation, the Tribunal could therefore only remit the case to the Organisation for a fresh examination of the complainant’s harassment complaint for it to be properly handled.
Keywords:
case sent back to organisation; confidentiality; disclosure of evidence;
Judgment 4457
133rd Session, 2022
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to summarily dismiss him.
Consideration 2
Extract:
In its further submissions, UNESCO has requested that the Tribunal disregard the last paragraph of the complainant’s rejoinder, in which his representative discloses the content of exchanges between the parties made in the context of an attempt to settle the dispute amicably.
The complainant’s objection to the receivability of this request – in which he seeks to rely on the Tribunal’s case law set out, in particular, in Judgment 3648, consideration 5, according to which an organisation may not raise an objection to receivability in its surrejoinder where it could have done so in its reply – is unfounded. It is true that what was held with regard to the surrejoinder would likewise apply to such further submissions. However, the request in question cannot be regarded as an objection to receivability and is based, moreover, on new information provided by the complainant in his rejoinder. The request is therefore admissible, even though it would have been more natural for UNESCO to make it in the surrejoinder.
As it is, the request is justified. As the Tribunal has already stated, since the confidentiality of amicable dispute settlement procedures must be preserved to increase the likelihood of their success, information relating to any negotiations conducted by the parties with a view to resolving a dispute referred to the Tribunal must not be disclosed in the proceedings before it (see Judgment 3586, consideration 5).
The aforementioned paragraph of the rejoinder, which should indeed be disregarded, will not therefore be taken into consideration by the Tribunal.
Reference(s)
ILOAT Judgment(s): 3586, 3648
Keywords:
additional written submissions; amicable settlement; confidentiality; rejoinder;
Consideration 28
Extract:
First, since the beginning of the dispute, the Organization has refused to provide the complainant with the recommendation that he be summarily dismissed issued by the Director of the Bureau of Human Resources Management to the Director-General on the basis of paragraphs 11 and 14 of Item 11.3 of the Human Resources Manual. However, it is settled case law that a staff member must, as a general rule, have access to all the evidence on which an authority bases its decision against her or him and that the employing organisation cannot withhold such evidence on the grounds of confidentiality (see, for example, Judgments 2700, consideration 6, 3863, consideration 18, or 4293, consideration 4). UNESCO, which in this case confines itself essentially to arguing that the aforementioned recommendation is part of an “internal and confidential procedure”, does not thus advance a sound reason for refusing to provide that document.
Second, it appears that the complainant was not given the opportunity to view, as permitted under Staff Rule 104.10, the personal file that UNESCO held on him. Although the Organization states in its surrejoinder that the complainant could “inspect his personal file at any time”, the evidence shows that he could not actually exercise that right in practice because he was prohibited from entering the Organization’s premises and because of the failure to respond to the steps he had taken, in particular in the run-up to the Appeals Board hearing, with a view to gaining access to that file.
Reference(s)
ILOAT Judgment(s): 2700, 3863, 4293
Keywords:
confidentiality; disclosure of evidence;
Judgment 4451
133rd Session, 2022
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision concerning her management-driven transfer.
Consideration 4
Extract:
In its reply, IFAD requests the Tribunal to disregard a letter sent by the members of the Joint Appeals Board to the President of IFAD on 5 May 2017.
The Tribunal notes that, contrary to what IFAD contends, the letter in question, which made no mention of the confidential nature of its contents, was not confidential and there is nothing to prove that the complainant came to possess it improperly. There is therefore no reason for the Tribunal to disregard this item of evidence.
Keywords:
confidential evidence; confidentiality;
Judgment 4447
133rd Session, 2022
International Olive Council
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the withdrawal of some of her functions, arguing that such removal amounted to de facto demotion.
Consideration 14
Extract:
It is well established in the Tribunal’s case law that a staff member must, as a general rule, have access to all evidence and other materials on which an authority bases or intends to base its decision against her or him, and, under normal circumstances, such materials 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 (see, for example, Judgment 4412, consideration 14). It is also well established that the principle of equality of arms must be observed by ensuring that all parties in a case are provided with all of the materials an appeal body uses in an internal appeal, and that the failure to do so constitutes a breach of due process (see, for example, Judgment 3586, consideration 17). These principles were violated when the complainant was not provided with her own copy of the external lawyer’s opinion before the hearing.
Reference(s)
ILOAT Judgment(s): 3586, 4412
Keywords:
confidentiality; disclosure of evidence; due process; internal appeals body;
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 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 4407
132nd Session, 2021
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to award her moral damages higher than 20,000 Swiss francs for the moral injury she alleges to have suffered as a result of the personal prejudice and bias she endured during her probation.
Consideration 4
Extract:
With regard to [the complainant's] argument of a breach of confidentiality, the Tribunal finds that the privileged and confidential sharing of the GBA report within the Office of the Legal Counsel, Director-General’s Office, in order to provide advice and assistance to the Director-General, was lawful.
Keywords:
confidentiality;
Judgment 4347
131st Session, 2021
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision of the Director of PAHO to impose on him the disciplinary measure of reassignment with reduction in grade.
Consideration 21
Extract:
Regarding the non-disclosure of the investigation report, the Tribunal recalls that in Judgment 2229, consideration 3(b), it stated: “According to general principles of law, the 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. Under normal circumstances, such evidence cannot be withheld on the grounds of confidentiality.” In the present case, by a letter of 8 August 2014, the complainant was provided with the list of charges and the 38 annexes of evidence on the basis of which the list had been compiled (including all witness statements and relevant emails); by a letter of 9 June 2015, he was provided with the confirmation of his misconduct and, in the attachment to that letter, with a 16-page document providing “the basis for the findings and conclusions regarding [his] lack of compliance with the established standards”; moreover, he was also provided with the Board of Appeal’s preliminary recommendation and final report in the impugned decisions (letters of 27 December 2017 and 22 June 2018 respectively). The Tribunal is therefore satisfied that, although PAHO, relying on paragraphs 68 and 69 of the Investigation Protocol, did not provide the complainant with a copy of the investigation report, he was provided with all evidence related to the charges and the specific evidence on which the final decision was based, and that he was given ample opportunity to respond to the allegations against him. His pleas in this respect are therefore unfounded.
Reference(s)
ILOAT Judgment(s): 2229
Keywords:
confidentiality; disclosure of evidence; investigation report;
Judgment 4343
131st Session, 2021
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to demote him by two grades as a disciplinary measure for harassment.
Considerations 13-14
Extract:
The Tribunal’s case law accepts that there may be situations in which an organization can refuse to provide the subject of disciplinary proceedings with the transcripts of witness interviews without committing a breach of due process. An example is provided by Judgment 3640, where the issue of the need to reconcile the requirements of due process with the confidentiality of harassment investigations was dealt with in considerations 17 to 22. In that judgment, the Tribunal recalled its 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)”. In consideration 20, the Tribunal observed that, “as is expressly indicated by the use of the terms ‘as a general rule’ and ‘under normal circumstances’ [...], the case law in question does allow some exceptions to the principle which it establishes”. The Tribunal held that:
“[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).”
It is therefore necessary to consider whether the evidence in the present case shows that the complainant was sufficiently informed of the content of the witness statements, even though they were not shared with him, as there would have been “a serious breach of due process” if he had not been so informed (see Judgment 3137, under 6).
Reference(s)
ILOAT Judgment(s): 2229, 2771, 3137, 3295, 3640
Keywords:
confidentiality; disciplinary procedure; due process; harassment; witness;
Judgment 4310
130th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to apply the sanction of summary dismissal to him.
Consideration 11
Extract:
It is not disputed that the complainant had never seen the IAO’s investigation report prior to filing his complaint with the Tribunal on 19 June 2017. Having regard to the Organization’s explanations, it seems that the report was not provided to him until 6 September 2017.
The Joint Advisory Appeals Board rightly considered that, in those circumstances, the adversarial principle and, more particularly, the complainant’s rights of defence had been breached.
As the Tribunal has repeatedly held, 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 her or him personally. 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 disclosure (see Judgments 3732, under 6, and 3755, under 10), which was not the case here.
The fact that the complainant was ultimately able to obtain the IAO investigation report during the proceedings before the Tribunal does not, in this case, remedy the flaw in the procedure. While the case law recognises that, in some cases, the non-disclosure of evidence can be corrected when this flaw is subsequently remedied, including in proceedings before the Tribunal (see, for example, Judgment 3117, under 11), that is not the case where the document in question is of vital importance having regard to the subject matter of the dispute, as it is here (see Judgments 2315, under 27, 3490, under 33, 3831, under 16, 17 and 29, and 3995, under 5).
Reference(s)
ILOAT Judgment(s): 2315, 3117, 3490, 3732, 3755, 3831, 3995
Keywords:
confidentiality; due process in disciplinary procedure; investigation report;
Judgment 4273
130th Session, 2020
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge their classification in the new career structure established following the 2015 five-yearly review.
Consideration 29
Extract:
The complainants seek an award of 2,000 euros each in moral damages. They contend that persons not involved in the procedure were informed by the Administration of their internal appeals without their consent, and that this breach of confidentiality caused them moral injury. They refer to the letter [...], copied to their Head of Department, in which the Head of the Human Resources Department stated that, following the Director-General’s decisions [...], they would be contacted shortly with a view to arranging a career review. That letter did not mention that the decisions [...] were the decisions taken following their internal appeals and did not disclose their content. It was perfectly proper for their Head of Department to be informed by the Organization of their upcoming career reviews.
Keywords:
confidentiality;
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