Burden of proof (148,-666)
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Keywords: Burden of proof
Total judgments found: 217
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Judgment 3882
124th Session, 2017
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 with immediate effect for misconduct.
Consideration 14
Extract:
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 FAO 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).”
Reference(s)
ILOAT Judgment(s): 2699, 3649
Keywords:
burden of proof; disciplinary procedure; evidence;
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 8
Extract:
In disciplinary matters, the burden of proof lies with the employer, which must demonstrate that the employee did indeed engage in the conduct of which she or he is accused. If the facts are disputed and there is no persuasive material evidence, the facts of the dispute must be appraised on the basis of conclusive circumstantial evidence. Thus, the facts may be held to be established when a set of precise presumptions and concurring circumstantial evidence enable the decision-making authority to conclude beyond reasonable doubt that the person concerned is guilty (see, in particular, Judgments 2786, under 9, 2849, under 16, and 3297, under 8).
When a complaint is filed seeking the setting aside of a disciplinary measure or a dismissal ordered at the end of disciplinary proceedings, it is not the Tribunal’s role to reweigh the evidence collected by an investigative body, the members of which have already appraised this evidence, or in particular the reliability of the testimony of persons whom they have directly heard (see, in particular, Judgment 3757, under 6). This is all the more true when the evidence to be appraised comprises extremely complex technical elements such as those inherent to a process of computer hacking of the kind observed in this case. What is essential is that any person under investigation has ample opportunity to adduce and refute evidence, which has manifestly been the case here.
Reference(s)
ILOAT Judgment(s): 2786, 2849, 3297, 3757
Keywords:
burden of proof; disciplinary procedure; hacking;
Judgment 3863
124th Session, 2017
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the termination of his appointment on disciplinary grounds.
Consideration 8
Extract:
[A]ccording to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14). It is equally well settled that the “Tribunal will not engage in a determination as to whether the burden of proof has been met, instead, the Tribunal will review the evidence to determine whether a finding of guilt beyond a reasonable doubt could properly have been made by the primary trier of fact” (see Judgment 2699, consideration 9).
Reference(s)
ILOAT Judgment(s): 2699, 3649
Keywords:
burden of proof; disciplinary procedure;
Consideration 11
Extract:
The question is not whether the Tribunal is satisfied beyond a reasonable doubt that the complainant revealed confidential information to Mr M. Rather it is whether the Tribunal is satisfied that it was open to the Registrar to reach that conclusion by reference to that standard of proof.
Keywords:
burden of proof; disciplinary procedure;
Judgment 3862
124th Session, 2017
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the termination of her appointment on disciplinary grounds.
Consideration 20
Extract:
[A]ccording to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14). It is equally well settled that the “Tribunal will not engage in a determination as to whether the burden of proof has been met, instead, the Tribunal will review the evidence to determine whether a finding of guilt beyond a reasonable doubt could properly have been made by the primary trier of fact” (see Judgment 2699, consideration 9).
Reference(s)
ILOAT Judgment(s): 2699, 3649
Keywords:
burden of proof; disciplinary procedure;
Judgment 3853
124th Session, 2017
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his contract on the grounds of unsatisfactory service.
Consideration 7
Extract:
[T]he complainant bears the burden of establishing bad faith (see, for example, Judgments 1776, consideration 24, 3407, consideration 15, and 3738, consideration 9) [...].
Reference(s)
ILOAT Judgment(s): 1776, 3407, 3738
Keywords:
bad faith; burden of proof;
Judgment 3852
124th Session, 2017
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to summarily dismiss her for serious misconduct.
Consideration 8
Extract:
[T]he Tribunal notes that the evidence against [the complainant] has been proven beyond a reasonable doubt and no admission of guilt is necessary for a finding of guilt.
Keywords:
burden of proof; disciplinary measure;
Consideration 13
Extract:
The Tribunal concludes that, based on the evidence, the Director-General could properly determine that the misconduct was proven beyond a reasonable doubt. He therefore properly exercised his discretion to dismiss the complainant summarily, as he did.
Keywords:
burden of proof; disciplinary measure; discretion; termination of employment;
Judgment 3793
123rd Session, 2017
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to grant him a dependants’ allowance for his mother.
Consideration 2
Extract:
The case law is clear 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 Judgment 3253, under 7). Based on information received from the Munich Post Office, the EPO states that the complainant “most likely” received the decision on 31 May. This is insufficient to prove actual receipt. Accordingly, the complainant’s statement that he received the decision on 1 June is accepted and it follows that the complaint is receivable.
Reference(s)
ILOAT reference: Article VII, par. 1, of the Statute
ILOAT Judgment(s): 3253
Keywords:
burden of proof;
Judgment 3757
123rd Session, 2017
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him summarily.
Consideration 6
Extract:
The impugned decision rightly emphasises that adducing material evidence is especially difficult in cases of corruption or market manipulation where nothing is put in writing by either party and everything often takes place without the involvement of third persons who might be called as witnesses. A staff member who is accused of such dealings is certainly entitled to due process offering him every opportunity to defend his interests, and the burden of proof always falls upon the Administration. However, the latter’s investigation will not be required to culminate in the establishment of absolute proof. All that is needed is a set of precise and concurring presumptions removing any reasonable doubt that the acts in question actually took place (see Judgments 1384, under 10, 3137, under 6, and 3297, under 8).
Reference(s)
ILOAT Judgment(s): 1384, 3137, 3297
Keywords:
burden of proof; due process; evidence;
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 19
Extract:
[B]efore terminating [the complainant's] appointment, WHO should have ascertained whether he was prepared to accept a post at a grade lower than that of the position which he had held previously (see Judgment 1782, under 11). It was not up to the complainant to prove that he was able to remain in the Organization’s service in some capacity; it was up to the Organization to prove the contrary (see Judgment 2830, under 9, in fine).
Reference(s)
ILOAT Judgment(s): 1782, 2830
Keywords:
burden of proof; duty of care; termination of employment;
Judgment 3753
123rd Session, 2017
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former WHO staff member, contests the decision to terminate his fixed-term appointment pursuant to the abolition of his post.
Consideration 13
Extract:
WHO argues in its reply, correctly, that the complainant bears the burden of proving allegations of personal prejudice though it acknowledges, again correctly, that evidence of personal prejudice is often concealed and may rest on inferences drawn from all the circumstances (see Judgments 958, consideration 5, 1775, consideration 7, and 3380, consideration 9).
Reference(s)
ILOAT Judgment(s): 958, 1775, 3380
Keywords:
bias; burden of proof; personal prejudice;
Judgment 3751
123rd Session, 2017
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former WHO staff member, challenges the decisions to abolish her post and to terminate her fixed-term appointment.
Consideration 10
Extract:
[I]t was not for the complainant to have to discern from all surrounding circumstances known to her the reason why her post had been abolished and the reason why she had not been matched to a new position. It was incumbent on WHO to provide those reasons both as a matter of fairness and also to safeguard the complainant’s right to contest the decision (see Judgment 3041, consideration 8). WHO’s failure to provide those reasons entitles the complainant to moral damages.
Reference(s)
ILOAT Judgment(s): 3041
Keywords:
burden of proof; duty to inform; moral injury;
Judgment 3743
123rd Session, 2017
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the non-renewal of her fixed-term contract.
Consideration 12
Extract:
The complainant bears the burden of proving malice, bad faith or misuse of authority (see, for example, Judgments 3543, consideration 20, and 3678, consideration 6).
Reference(s)
ILOAT Judgment(s): 3543, 3678
Keywords:
abuse of power; bad faith; burden of proof; malice; misuse of authority;
Judgment 3738
123rd Session, 2017
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to reject his claim for a termination indemnity.
Consideration 8
Extract:
[A]ccording to firm precedent, it is for the sender of a document to prove its date of receipt by the recipient in the event of a dispute on this matter (see, for example, Judgments 456, under 7, 723, under 4, 2473, under 4, 2494, under 4, 3034, under 13, and 3253, under 7).
Reference(s)
ILOAT Judgment(s): 456, 723, 2473, 2494, 3034, 3253
Keywords:
burden of proof; notification;
Judgment 3737
123rd Session, 2017
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant alleges that he was subjected to harassment.
Consideration 7
Extract:
[A]ccording to firm precedent, it is for the sender of a document to establish its date of receipt by the recipient in the event of a dispute on this matter (see, for example, Judgments 456, under 7, 723, under 4, 2473, under 4, 2494, under 4, 3034, under 13, or 3253, under 7).
Reference(s)
ILOAT Judgment(s): 456, 723, 2473, 2494, 3034, 3253
Keywords:
burden of proof; notification;
Judgment 3727
123rd Session, 2017
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, whose post was abolished following a restructuring exercise, challenges the new final decision taken by the Secretary General pursuant to Judgment 3208.
Consideration 15
Extract:
What the Federation does not do in its pleas and evidence is to demonstrate that it corresponded or otherwise communicated with the complainant about specific available positions encouraging the complainant to apply for or pursue them or to demonstrate that, at the time, it undertook any sort of analysis of positions which might, at least potentially, have been positions to which the complainant might be transferred as contemplated by Article 11.3.2 of the Staff Regulations. It was not sufficient for the Federation to take the approach, as it apparently did, that it was incumbent on the complainant to identify other positions for which he might be suitable and then apply for those positions. The Federation bore the onus of showing the complainant was not able to remain in the Federation’s service in some capacity (see Judgment 2830, consideration 9). A much more active role was required of the Federation in circumstances where a long-serving member of staff towards the end of his career was facing the prospect of his employment being terminated because of redundancy. The Federation’s obligations have been described as requiring it to do “its utmost to find [an official facing redundancy] a post which matched his skills and level of responsibility” [...] (see Judgment 2090, consideration 7). The Federation failed in its duty towards the complainant and, in this respect, the complainant is entitled to moral damages.
Reference(s)
ILOAT Judgment(s): 2090, 2830
Keywords:
abolition of post; burden of proof; duty of care; moral injury; reassignment; respect for dignity;
Judgment 3725
123rd Session, 2017
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the disciplinary measures imposed on him following an investigation into alleged misconduct.
Consideration 15
Extract:
It is well established in the case law that where misconduct is denied, the burden falls upon the Organization to prove misconduct beyond a reasonable doubt and the staff member is to be given the benefit of the doubt (see, for example, Judgment 2879, under 11).
Reference(s)
ILOAT Judgment(s): 2879
Keywords:
burden of proof; disciplinary measure; misconduct;
Judgment 3692
122nd Session, 2016
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant who, at the material time, was working as a patent examiner, objects to three of his staff reports, submits that he was subjected to harassment and challenges the rejection of his request for an independent examination of several of his dissenting opinions on patent applications.
Consideration 18
Extract:
In Judgment 2552, under 3, the Tribunal stated that when an accusation of harassment is made, an international organisation must investigate the matter thoroughly and accord full due process and protection to the person accused. The organisation’s duty to a person who makes a claim of harassment requires that the claim be investigated both promptly and thoroughly, that the facts be determined objectively and in their overall context (see Judgment 2524), that the law be applied correctly, that due process be observed and that the person claiming, in good faith, to have been harassed not be stigmatised or victimised on that account (see Judgments 1376, under 19, 2642, under 8, and 3085, under 26).
Furthermore, the question as to whether harassment has occurred must be determined in the light of a thorough examination of all the objective circumstances surrounding the events complained of. An allegation of harassment must be borne out by specific acts, the burden of proof being on the person who pleads it, but there is no need to prove that the accused person acted with intent (see Judgments 2100, under 13, 2524, under 25, and 3233, under 6, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 1376, 2524, 2552, 2642, 3085
Keywords:
burden of proof; harassment;
Judgment 3688
122nd Session, 2016
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to abolish her post and to separate her from service.
Consideration 18
Extract:
Whether the post was abolished for financial reasons is a question of fact. Those facts were within the knowledge of WHO and it must show that when it advanced financial reasons as a ground for the abolition of the complainant’s post this was genuine. It has not done so. In the absence of that evidence, it is determined that the complainant’s post was unlawfully abolished and the claim on this ground is well founded.
Keywords:
abolition of post; burden of proof; evidence;
Judgment 3678
122nd Session, 2016
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him at the end of his probation period.
Consideration 8
Extract:
There are no grounds for allowing the complainant’s claim that he should be allowed “to prove by all legal means” the facts he alleges, since it is incumbent upon him to submit to the Tribunal in the course of the proceedings any evidence he considers to be material in support of his case (see Judgment 1248, under 7).
Reference(s)
ILOAT Judgment(s): 1248
Keywords:
burden of proof;
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;
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