Burden of proof (148,-666)
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Keywords: Burden of proof
Total judgments found: 217
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Judgment 4293
130th Session, 2020
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to select him for a post.
Consideration 19
Extract:
Since the complainant presents no evidence (as against conjecture) that the selected candidate did not meet the minimum experience required by the vacancy announcement, ground 3 of the complaint is unfounded.
Keywords:
burden of proof;
Judgment 4291
130th Session, 2020
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the dismissal of his complaint of harassment and abuse of authority.
Consideration 15
Extract:
The complainant asks for oral hearings because he finds the organization’s denials of his allegations to be insufficient. However, the burden of proof rests on him and he has not discharged it. [...] It is for the complainant to adduce evidence of his allegations, and in the absence of such evidence, all such allegations should be rejected (see Judgment 28 at paragraph 4 of Section A).
Reference(s)
ILOAT Judgment(s): 28
Keywords:
burden of proof; oral proceedings;
Judgment 4264
129th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her performance management report for the period 1 January 2010 to 18 July 2010.
Consideration 10
Extract:
If a complainant alleges that a decision was not taken in good faith or was taken for an improper purpose, she or he bears the burden of establishing the lack of good faith, bias or improper purpose (see, for example, Judgments 4146, consideration 10, 3743, consideration 12, and 2472, consideration 9). It is a serious allegation that must be clearly substantiated.
Reference(s)
ILOAT Judgment(s): 2472, 3743, 4146
Keywords:
bad faith; burden of proof;
Judgment 4262
129th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her performance management report for 2008.
Consideration 8
Extract:
If a complainant alleges that a decision was not taken in good faith or was taken for an improper purpose, she or he bears the burden of establishing the lack of good faith, bias or improper purpose (see, for example, Judgments 4146, consideration 10, 3743, consideration 12, and 2472, consideration 9). It is a serious allegation that must be clearly substantiated. At least the second and third matters referred to in the preceding consideration certainly illustrate inappropriate conduct on the part of VP1. But an allegation of bias ordinarily involves the notion that the decision maker is sufficiently antipathetic towards another for that antipathy to colour and influence the decision. In the present case, this is not established even inferentially.
Reference(s)
ILOAT Judgment(s): 2472, 3743, 4146
Keywords:
bad faith; burden of proof;
Judgment 4261
129th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the withdrawal of a decision to assign her additional duties on a temporary basis.
Consideration 10
Extract:
If a complainant alleges that a decision was not taken in good faith or was taken for an improper purpose, she or he bears the burden of establishing the lack of good faith, bias or improper purpose (see, for example, Judgments 4146, consideration 10, 3743, consideration 12, and 2472, consideration 9). It is a serious allegation that must be clearly substantiated.
Reference(s)
ILOAT Judgment(s): 2472, 3743, 4146
Keywords:
bad faith; bias; burden of proof;
Judgment 4253
129th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who states that he was the victim of moral harassment, claims redress for the injury he considers he has suffered.
Consideration 6
Extract:
It is firmly established in the case law that the person alleging harassment bears the burden of proving the allegation (see Judgments 2745, consideration 20, 3347, consideration 8, 3692, consideration 18, 3871, consideration 12, and 4171, consideration 7).
Reference(s)
ILOAT Judgment(s): 2745, 3347, 3692, 3871, 4171
Keywords:
burden of proof; harassment;
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 4241
129th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaint challenges the decision to dismiss her complaint of harassment as unsubstantiated.
Consideration 13
Extract:
The Tribunal has stated that it is by no means abnormal that the investigations conducted with a view to ascertaining the truth of the statements contained in a complaint should be widened to encompass other similar behaviour on the part of the alleged harasser. It noted that it is in fact often the best means of corroborating the allegations of the complainant in an area where it may be impossible to produce material evidence. It has further stated that, more generally, the question 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, for example, Judgments 3233, consideration 6, and 3640, consideration 14). The Tribunal notes that notwithstanding that Mr F.C. had testified that he sustained treatment that was similar to that which the complainant alleged at the hands of the DXD/MER, who was then his second-level supervisor, his testimony found no place in the IOS’s analysis.
Reference(s)
ILOAT Judgment(s): 3233, 3640
Keywords:
burden of proof; evidence; flaw; harassment; inquiry; investigation;
Judgment 4233
129th Session, 2020
International Office of Epizootics
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to award him compensation for the moral harassment which he alleges he has suffered.
Consideration 3
Extract:
Under the Tribunal’s case law, harassment can be the cumulative effect of a series of actions which, in isolation, might not be viewed as harassment (see, for example, Judgments 3485, consideration 6, 3599, consideration 4, and 4034, consideration 16) even if they were not challenged at the time of the events (see Judgment 3841, consideration 6). However, firstly, the person alleging harassment bears the burden of proving the allegation (see Judgments 2067, consideration 5, 2100, consideration 13, 2370, consideration 9, and 2406, consideration 13) and, secondly, the only actions which can be said to constitute harassment are those for which there is no reasonable explanation (see Judgments 2370, consideration 17, 2524, consideration 25, 3447, consideration 9, 3996, consideration 7B, 4038, consideration 18, and 4108, consideration 7).
Reference(s)
ILOAT Judgment(s): 2067, 2100, 2370, 2406, 2524, 3447, 3485, 3599, 3841, 3996, 4034, 4038, 4108
Keywords:
burden of proof; harassment;
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 4222
129th Session, 2020
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the refusal of UNESCO to award full compensation for the injury suffered as a result of an accident recognized as being service-incurred.
Consideration 18
Extract:
The complainant alleges various material injuries involving costs incurred in relation to the accident. However, it must be noted that she does not produce any invoices substantiating the actual amounts concerned and does not provide any reasons why those documents might not be in her possession. The Tribunal cannot therefore award compensation for the injuries in question.
Keywords:
burden of proof; material injury;
Judgment 4221
129th Session, 2020
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of her request for reclassification of her post.
Consideration 15
Extract:
[T]he complainant’s contention that the decision to classify her post at grade P-3 is tainted with abuse of authority is also unfounded. In any event, she provides no evidence to support that contention (for such a requirement see, for example, Judgment 3939, consideration 10, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 3939
Keywords:
abuse of power; burden of proof; misuse of authority;
Judgment 4171
128th Session, 2019
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to dismiss her internal complaints of moral harassment.
Consideration 7
Extract:
It is firmly established in the case law that the person alleging harassment bears the burden of proving the allegation (see Judgments 2745, consideration 20, 3347, consideration 8, 3692, consideration 18, and 3871, consideration 12).
Reference(s)
ILOAT Judgment(s): 2745, 3347, 3692, 3871
Keywords:
burden of proof; harassment;
Judgment 4158
128th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant submits that WIPO has not fully compensated her for the injury that she suffered as a result of being subjected to harassment.
Consideration 4
Extract:
With regard to damages, the complainant bears the burden of proof and she or he must provide evidence of the injury suffered, of the alleged unlawful act, and of the causal link between the unlawful act and the injury (see Judgments 3778, consideration 4, 2471, consideration 5, and 1942, consideration 6).
Reference(s)
ILOAT Judgment(s): 1942, 2471, 3778
Keywords:
burden of proof; injury; moral injury;
Consideration 7
Extract:
The amount of compensation must be the subject of a specific examination, which takes into account all relevant factors, such as the seriousness, nature and duration of the injury suffered and also whether or not the organization withdrew the irregular decision and rectified the irregularity.
Keywords:
burden of proof; compensation; moral injury;
Judgment 4157
128th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the amount of compensation awarded for the moral injury she suffered because her evaluation for 2013 was irregular and contests the partial modification thereof.
Consideration 7
Extract:
With regard to damages, the complainant bears the burden of proof and she or he must provide evidence of the injury suffered, of the alleged unlawful act, and of the causal link between the unlawful act and the injury (see Judgments 3778, consideration 4, 2471, consideration 5, and 1942, consideration 6).
The mere fact that a decision was initially flawed does not suffice to warrant awarding damages for moral injury. In the present case, the flaw was corrected on the recommendation of the Appeal Board. To be entitled to moral damages, an official must show that she or he has suffered more severe injury than that which an improper decision ordinarily causes (see Judgment 1380, consideration 11).
Reference(s)
ILOAT Judgment(s): 1380, 1942, 2471, 3778
Keywords:
burden of proof; moral injury;
Judgment 4156
128th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the amount of compensation awarded for the moral injury she suffered because her evaluation for 2012 was irregular.
Consideration 6
Extract:
The amount of compensation must be the subject of a specific examination, which takes into account all relevant factors, such as the seriousness, nature and duration of the damage suffered and also whether or not the organization withdrew the irregular decision and rectified the irregularity. In this case, the evaluation – which, incidentally, was belated – contained unjustified and inappropriately worded criticisms. The complainant states that her dignity was hurt by the irregularities committed and that she was shocked at the aggressive and hostile behaviour of the reviewing officer, who expressed her views using excessive language. She emphasizes that, even though the disputed evaluation was withdrawn, this was only done after more than 16 months, during which time she suffered “severe stress and anxiety”.
Keywords:
burden of proof; compensation; moral injury;
Consideration 5
Extract:
With regard to damages, the complainant bears the burden of proof and she or he must provide evidence of the injury suffered, of the alleged unlawful act, and of the causal link between the unlawful act and the injury (see Judgments 3778, consideration 4, 2471, consideration 5, and 1942, consideration 6).
The mere fact that a decision was initially flawed does not suffice to warrant awarding damages for moral injury. In this case, the flaw was corrected on the recommendation of the Appeal Board. To be entitled to moral damages, an official must have suffered more severe injury than that which an improper decision ordinarily causes (see Judgment 1380, consideration 11).
Reference(s)
ILOAT Judgment(s): 1380, 1942, 2471, 3778
Keywords:
burden of proof; moral injury;
Judgment 4147
128th Session, 2019
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to retain his candidature for a post.
Consideration 9
Extract:
In keeping with the consistent case law of the Tribunal, the complainant bears the burden of demonstrating that there was a serious defect in the selection process which had an impact on the consideration of his candidature (see Judgment 4023, consideration 2).
Reference(s)
ILOAT Judgment(s): 4023
Keywords:
burden of proof; selection procedure;
Judgment 4146
128th Session, 2019
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decisions not to grant him a contract of indefinite duration and not to extend his fixed-term contract beyond nine years of service.
Consideration 10
Extract:
The Tribunal recalled, in Judgment 3861, under 9, that the principle of good faith and the concomitant duty of care require international organisations to treat their staff with due consideration in order to avoid causing them undue injury, and that an employer must consequently inform officials in advance of any action that may imperil their rights or harm their rightful interests. The Tribunal has also observed that in order for there to be misuse of authority, it must be established that the decision rested on considerations extraneous to the organisation’s interests and that the staff member alleging abuse of authority bears the burden of establishing the improper purpose for which the authority was exercised (see, for example, Judgment 3193, under 9).
Reference(s)
ILOAT Judgment(s): 3193, 3861
Keywords:
abuse of power; burden of proof; good faith; misuse of authority;
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 4099
127th Session, 2019
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to abolish her position.
Consideration 11
Extract:
The complainant raises numerous grievances against WHO, claiming that she was a victim of collusion between certain officials, unfavourable bias, misuse of authority, discrimination and reprisals.
However, as the Tribunal has stated on many occasions, allegations of this kind can only be accepted if there is sufficient evidence to substantiate them (see, for example, Judgments 1775, consideration 7, 2116, consideration 4(a), 2885, consideration 12, 3380, consideration 9, 3543, consideration 20, or 3914, consideration 7).
Reference(s)
ILOAT Judgment(s): 1775, 2116, 2885, 3380, 3543, 3914
Keywords:
abuse of power; burden of proof; misuse of authority;
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