Evidence (144, 145, 146, 147, 149, 150, 151, 152, 153, 154, 155, 156, 157,-666)
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Keywords: Evidence
Total judgments found: 236
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Judgment 3649
122nd Session, 2016
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision of the Director General of the IAEA to summarily dismiss him for serious misconduct.
Consideration 14
Extract:
[I]t 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).
Reference(s)
ILOAT Judgment(s): 2699
Keywords:
burden of proof; disciplinary measure; evidence; misconduct; standard of proof; standard of proof in disciplinary procedure;
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.
Consideration 14
Extract:
[T]he complainant submits that the facts considered in these proceedings should have been confined to those directly concerning Ms M. and that it was therefore wrong also to take account of allegations related to his behaviour towards other persons. However, contrary to what the Appeals Board seems to believe, in the context of an inquiry into a sexual harassment complaint, it is by no means abnormal that the investigations conducted with a view to ascertaining the truth of the statements contained in the complaint should be widened to encompass other similar behaviour on the part of the alleged harasser. In fact, that is often the best means of corroborating the allegations of the complainant in an area where [...] it may be impossible to produce material evidence. More generally, it should be recalled that the question of whether or not harassment has occurred must be determined in the light of a careful examination of all the objective circumstances surrounding the events complained of by the alleged victim (see Judgments 2553, under 6, in fine, 3166, under 16, in fine, or 3233, under 6).
Reference(s)
ILOAT Judgment(s): 2553, 3166, 3233
Keywords:
evidence; harassment; inquiry; investigation; sexual harassment;
Consideration 15
Extract:
In addition, although the other acts taken into consideration had not led to the lodging of harassment complaints – in many cases this may be explained by the inherent risks of making an accusation against a supervisor – this did not pose a legal obstacle to their being taken into account. All that mattered here was that these acts had actually occurred, irrespective of the action which might have been taken on them at an earlier stage. The fact that they did not lead to the lodging of a complaint does not make them any less relevant as evidence corroborating the allegations of Ms M. (see, in respect of this latter point, Judgment 2521, under 10, in fine). The reprehensible conduct of an international civil servant may well give rise to a disciplinary measure taken by the employing organisation on its own initiative, regardless of whether one of his or her colleagues files a complaint. Item 11.3 of the Human Resources Manual, on disciplinary procedure, expressly provides for such a step, and in this connection the defendant organisation rightly points out that item 18.2, paragraph 5(d), of the Manual makes the management of UNESCO responsible for “resolving all instances of harassment as soon as it becomes aware of them, even if there are no formal complaints”. Since, in the instant case, acts of harassment concerning persons other than Ms M. had been expressly mentioned in the memorandum of the Director of the Bureau of Human Resources Management of 3 November 2011 notifying the complainant of the charges against him, in this respect the procedure followed bears no criticism.
Reference(s)
ILOAT Judgment(s): 2521
Keywords:
evidence; inquiry; investigation; sexual harassment;
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;
Consideration 27
Extract:
[T]he Tribunal considers that the acts of which the complainant was accused are established by sufficiently strong evidence that, in accordance with the requirements of the case law on the subject, it has been proved “beyond reasonable doubt” that they actually took place (see Judgment 2786, under 9, and the reference to this requirement made in Judgment 969, under 16).
Reference(s)
ILOAT Judgment(s): 969, 2786
Keywords:
evidence;
Judgment 3439
119th Session, 2015
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully challenges the decision to terminate his appointment after the abolition of his post, as the Tribunal found that, due to the Organisation's failings, he had lost a valuable opportunity to be reassigned to another post.
Consideration 7
Extract:
"[I]t is desirable to refer to the approach taken by the Tribunal to findings of fact made by internal appeal bodies such as the HBA. As is evident from the Tribunal’s discussion in Judgment 2295, under 10, it is not the role of the Tribunal to reweigh the evidence before an internal appeal body. Moreover the findings of such an internal appeal body warrant deference. In addition, where any internal appeal body has heard evidence and made findings of fact, the Tribunal will only interfere in the case of manifest error."
Reference(s)
ILOAT Judgment(s): 2295
Keywords:
evidence; internal appeals body; manifest error; mistake of fact;
Judgment 3407
119th Session, 2015
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully challenges the implied decision to reject his claim against the new calculation of his pension rights.
Consideration 17
Extract:
If the Organisation wished to dispute the authenticity of the document produced by the complainant, [...] it should have investigated the matter more thoroughly, or obtained an expert opinion, which as the file shows, it failed to do.
Keywords:
admissibility of evidence; evidence;
Judgment 3347
118th Session, 2014
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision dismissing her harassment complaint and challenges the lawfulness of the internal appeals and investigation procedures.
Considerations 19 to 21
Extract:
"It is well settled that a staff member must have access to all evidence upon which a decision concerning that staff member is based. As the Tribunal observed in Judgment 3264, under 15:
“It is well established in the Tribunal’s case law that 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’. Additionally ‘[u]nder normal circumstances, such evidence cannot be withheld on grounds of confidentiality’ (see Judgment 2700, under 6). It also follows that a decision cannot be based on a material document that has been withheld from the concerned staff member (see, for example, Judgment 2899, under 23).”
It is equally well settled that a statement in a staff regulation or other internal document that a report is confidential will not “shield a report […] from disclosure to the concerned official”. Moreover, “[i]n the absence of any reason in law for non-disclosure of the report, such non-disclosure constitutes a serious breach of the complainant’s right to procedural fairness” (Judgment 3264, under 16).
The fact that the complainant did not request a copy of the report of the IAOD, which investigated her claim of harassment, is irrelevant. She was entitled to receive a copy of it. Equally, it is not an answer to say that the complainant was given a summary of the report. In addition to the fact that she was entitled to the entire report, the summary did not contain any of the evidence upon which the conclusion was based. It simply stated that “[t]he IAOD investigation has not found facts that support the complainant’s allegations or that show she was entitled to have matters requested by her approved or that she was subjected to harassment, whether through a single incident or as an on-going pattern”. The complainant was effectively precluded from challenging the factual assertions and credibility of the witnesses interviewed and was left not knowing what evidence if any should be marshalled to counter the investigator’s conclusions.
As stated in the case law, a decision cannot be based on a material document that has been withheld from the staff member. In the present case, the failure to provide the complainant with a copy of the investigation report prior to the Director General taking his 25 June decision renders that decision fundamentally flawed. However, as that decision was overtaken by subsequent events, the only remedy today is an award of moral damages."
Reference(s)
ILOAT Judgment(s): 2700, 2899, 3264
Keywords:
due process; evidence; inquiry; investigation;
Judgment 3337
118th Session, 2014
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Considering that his harassment complaint has not been treated within a reasonable time, the complainant asks the Tribunal to sanction the Organisation for breach of its duty of care.
Considerations 11-12
Extract:
"The Tribunal has consistently stressed the serious nature of allegations of harassment in the workplace and the need for international organisations to investigate such allegations promptly and thoroughly. This is a function of the organisation’s duty of care to its staff members to uphold their dignity. [...] It is in relation to this obligation that the Tribunal, in Judgment 3069, under 12, for example, stated that international organisations have to ensure that an internal body that is charged with investigating and reporting on claims of harassment is properly functioning."
Reference(s)
ILOAT Judgment(s): 3069
Keywords:
disciplinary procedure; evidence; harassment; inquiry; investigation; organisation's duties;
Judgment 3297
116th Session, 2014
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant was dismissed for misconduct following a disciplinary investigation, which found that he had forged and falsified documents.
Judgment keywords
Keywords:
complaint dismissed; disciplinary measure; evidence; termination of employment;
Judgment 3295
116th Session, 2014
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaint concerning a disciplinary measure was dismissed by the Tribunal on the grounds that he had not demonstrated the existence of an error warranting the cancellation of the sanction.
Consideration 7
Extract:
"It is true that an organisation should investigate allegations of misconduct in a timely manner both in the interests of the person being investigated and the organisation. These interests include, among other things, safeguarding the reputations of both parties and ensuring that evidence is not lost."
Keywords:
consequence; delay; duty of care; evidence; inquiry; investigation; misconduct; organisation's duties;
Judgment 3253
116th Session, 2014
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns an unfavourable evaluation report. Her internal appeal having wrongly been rejected as irreceivable, the case is referred back to the internal appeal body.
Consideration 7
Extract:
"It is well settled that the burden of proof is on the sender to establish the date on which a communication was received. If that cannot be done (perhaps because the document was sent by a system of transmission that does not permit actual proof), the Tribunal will ordinarily accept what is said by the addressee about the date of receipt (see, generally, Judgments 447, consideration 2; 456, consideration 7; 723, consideration 4; 890, consideration 4; 930, consideration 8; 2473, consideration 4; and 2494, consideration 4)."
Reference(s)
ILOAT Judgment(s): 447, 456, 723, 890, 930, 2473, 2494
Keywords:
burden of proof; date of notification; evidence; internal appeal; lack of evidence; late appeal; time bar; time limit;
Judgment 3215
115th Session, 2013
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: As the complainant did not exhaust internal remedies concerning her claim of harassment and failed to prove negligence on the part of IAEA, the Tribunal dismissed her complaint.
Consideration 12
Extract:
"As discussed in Judgment 2804, negligence is the failure to take reasonable steps to prevent a foreseeable risk of injury. Liability in negligence is occasioned when the failure to take such steps causes an injury that was foreseeable. A person seeking damages for negligence bears the burden of establishing the factual foundation on which the claim is based."
Reference(s)
ILOAT Judgment(s): 2804
Keywords:
burden of proof; evidence; general principle; injury; liability; material damages; negligence; organisation's duties; professional accident; service-incurred; working conditions;
Judgment 3198
115th Session, 2013
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks the withdrawal from his personal file of the warnings concerning his productivity.
Consideration 25
Extract:
"According to the case law of the Tribunal, no damages will be ordered where a decision does not hamper a career and the matter which was complained of has been withdrawn (see Judgment 1380, under 11)."
Reference(s)
ILOAT Judgment(s): 1380
Keywords:
decision; evidence; lack of evidence; lack of injury; material damages; moral injury; no cause of action; professional injury; withdrawal of decision;
Judgment 3172
114th Session, 2013
Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the abolition of her post and the decision not to extend her appointment as procedurally flawed.
Consideration 16
Extract:
"A decision taken for an improper purpose is an abuse of authority. It follows that when a complainant challenges a discretionary decision, he or she by necessary implication also challenges the validity of the reasons underpinning that decision. In this respect, the Tribunal may examine the circumstances surrounding the abolition of the post to determine whether the impugned decision was tainted by abuse of authority."
Keywords:
abolition of post; abuse of power; breach; competence of tribunal; decision; discretion; evidence; misuse of authority;
Consideration 24
Extract:
"The Staff Regulations and Rules do not require the Joint Appeals Panel to explain why it considers a given document to be relevant. However, in this case, the Panel did explain both in its memorandum to the Administration and in its formal recommendation to the Executive Secretary that the requested documents were relevant to the disputed question of whether the decisions to abolish the complainant’s post and not to extend her appointment were tainted by bias or some other legally vitiating factor. By refusing to proffer the documents, even though this did not prevent the Panel from continuing the appeal and issuing its recommendation, the Commission breached the principles of due process, entitling the complainant to moral damages."
Keywords:
breach; disclosure of evidence; due process; evidence; general principle; moral injury; organisation's duties; procedural flaw;
Judgment 3138
113th Session, 2012
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
It is certainly regrettable that the complainant’s professional mailbox was consulted in her absence. However, the evidence in the file shows that she was informed that such a technical check was imminent and – naturally – it had to be carried out urgently.
Keywords:
due process; email; evidence;
Judgment 3108
113th Session, 2012
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
An internal appellate body is the primary fact-finding body in the internal appeals process. It is the body that sees and hears the witnesses and must assess the reliability of the evidence adduced. A full appreciation of the evidence can only occur in circumstances where individuals whose interests may have been adversely affected have an opportunity not only to be present to hear the evidence but also to test the evidence through cross-examination. As the Tribunal stated in Judgment 2513, under 11, "in the absence of special circumstances such as a compelling need to preserve confidentiality, internal appellate bodies such as the JAB must strictly observe the rules of due process and natural justice and [...] those rules normally require a full opportunity for interested parties to be present at the hearing of witnesses and to make full answer in defence".
Reference(s)
ILOAT Judgment(s): 2513
Keywords:
due process; evidence; internal appeals body; witness;
Judgment 3071
112th Session, 2012
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 39
Extract:
"Contemporaneous notes [...] always have evidentiary value, the more so if they are not controverted by other evidence. [E]-mail communications which are evidence of their contents and [...] assume particular evidentiary weight if their contents are not challenged."
Keywords:
admissibility of evidence; evidence;
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 3046
111th Session, 2011
World Meteorological Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
The right of an organisation to choose the manner in which it defends proceedings brought against it in the Tribunal / Absolute privilege.
"The doctrine of res judicata is one of the legal concepts that serve to ensure that judicial decisions are final and binding and that litigation is brought to a final conclusion. Another such concept is 'absolute privilege' insofar as it relates to statements made in legal proceedings. [A]bsolute privilege attaches to statements made in, and in the course of, legal proceedings, including statements by the parties, their legal representatives and their witnesses so that, save in the case of perjury or interference with the course of justice, those statements may not be the subject of separate proceedings. Absolute privilege serves another important function. It enables the parties to present their cases fully so that a decision can be reached on the whole of the available evidence."
Keywords:
admissibility of evidence; adversarial proceedings; appraisal of evidence; binding character; evidence; finality of judgment; judgment of the tribunal; res judicata; submissions; testimony;
Consideration 8
Extract:
"Article II, paragraph 5, of the Statute of the Tribunal relevantly provides that it is competent to hear complaints 'alleging non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the [applicable] Staff Regulations'. The real question raised by this complaint is whether those words extend to decisions taken with respect to the conduct of proceedings before the Tribunal. The complainant points to nothing in the Staff Regulations limiting the right of [the Organization] to choose the manner in which it may defend proceedings brought against it by an official. And although the Tribunal accepts that various international norms and other general legal principles form part of an official's terms of appointment, it would be inconsistent with fundamental legal principles and incompatible with the role of the Tribunal to import a term which impinged on the right of an international organisation to choose the manner in which it defends proceedings brought against it in the Tribunal, whether by way of evidence or argument or by way of communication with the Tribunal relating to the proceedings. It follows that the complaint is not one 'alleging non-observance [...] of the [complainant's] terms of appointment [or] the [applicable] provisions of the Staff Regulations' and, thus, is not one that the Tribunal is competent to hear."
Reference(s)
ILOAT reference: Article II, paragraph 5, of the Statute of the Tribunal
Keywords:
admissibility of evidence; adversarial proceedings; appraisal of evidence; competence; competence of tribunal; evidence; general principle; iloat; iloat statute; limits; organisation; right; submissions;
Consideration 7
Extract:
"Absolute privilege also operates to ensure the independence and impartiality of the judicial process. A tribunal would not be independent and impartial, nor seen to be so, if it were to assume the role of dictating to the parties the evidence and arguments that they can advance in their cases. That is not to say that a tribunal cannot control its own proceedings by, for example, excluding irrelevant evidence or striking out scandalous pleadings. Nor does it mean that a tribunal cannot draw inferences by reason of the nature of the evidence or argument presented, including in appropriate cases, adverse inferences as to the motive of the party relying on that evidence or argument. But if the evidence or argument is relevant to the issues to be decided, it is for the parties alone to determine whether they will rely on it. And because the parties must have that freedom or privilege, a tribunal cannot apply sanctions in separate proceedings with respect to the evidence or arguments advanced, particularly not after the proceedings have been completed. Were it otherwise, there would be no finality to litigation."
Keywords:
admissibility of evidence; adversarial proceedings; appraisal of evidence; evidence; independence; judicial review; submissions;
Judgment 2973
110th Session, 2011
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
Organisation's failure to fully investigate allegations of harassment.
"[T]he long delay seriously compromised the integrity of the investigative process. In addition to the diminishing recollection of events with the passage of time, potential witnesses are no longer available. As well, with the passage of time, it may be that those individuals in the Administration responsible for ensuring the protection of the staff member concerned are no longer with the Organization. If so, this would effectively preclude any accountability for the failure to protect a staff member if a finding of harassment were to be made."
Keywords:
appraisal of evidence; breach; delay; evidence; expert inquiry; harassment; inquiry; investigation; lack of evidence; liability; organisation's duties;
Judgment 2930
109th Session, 2010
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"In his internal appeal the complainant claimed in particular that he had been the victim of bullying on the part of his director, who was also his reporting officer. [...] The Internal Appeals Committee [...] found that the inaccuracies it identified [in the staff report] did not, individually, constitute an 'abuse of authority' and concluded that the 'report [did] not reveal any flaws which would justify its complete retraction'. This approach involved an error of law. It was not sufficient to consider in relation to each inaccuracy whether it, standing alone, was an abuse of authority. Rather, it was necessary to consider whether, in the light of the evidence, including the various inaccuracies which it identified, the report as a whole was the result of prejudice on the part of the reporting officer."
Keywords:
abuse of power; bias; burden of proof; evidence; formal flaw; internal appeals body; misuse of authority; organisation's duties; performance report; work appraisal;
Judgment 2915
109th Session, 2010
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 14
Extract:
"The fact that the Director General did not sign the letter [informing the complainant that her request was denied] does not mean that he did not take the relevant decision. The signing of the letter by the Director of [the Human Resources Management Department] is consistent with normal personnel practice. Moreover, the presumption of regularity applies in the absence of cogent evidence to the contrary."
Keywords:
competence; evidence; executive head; formal requirements; practice; staff regulations and rules; vested competence;
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