Disclosure of evidence (151,-666)
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Keywords: Disclosure of evidence
Total judgments found: 190
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Judgment 4404
132nd Session, 2021
African, Caribbean and Pacific Group of States
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks reimbursement of an amount wrongly deducted from her pay owing to double national taxation of her income, and compensation for the moral injury allegedly suffered as a result.
Consideration 3
Extract:
As the Tribunal has repeatedly stated in its case law, “[o]rdinarily, the process of decision-making involves a series of steps or findings which lead to a final decision. Those steps or findings do not constitute a decision, much less a final decision. They may be attacked as a part of a challenge to the final decision but they, themselves, cannot be the subject of a complaint to the Tribunal” (see Judgment 2366, consideration 16, confirmed by Judgments 3433, consideration 9, 3512, consideration 3, 3700, consideration 14, 3876, consideration 5, and 3961, consideration 4).
In this case, the email [...], the sole purpose of which was to invite the complainant to submit documents deemed necessary by the organisation’s services so that the deductions could be reimbursed, was merely a step in preparation for the decision that would ultimately be taken as to the payment of the sums in question. That email cannot therefore be construed as constituting a final decision within the meaning of Article VII, paragraph 1, of the Statute of the Tribunal and could not, therefore, be impugned before the Tribunal (for a similar case involving a request for the production of supporting documents required for the examination of an application for financial benefits, see Judgment 3876, considerations 4 and 5).
It follows that the complaint must be dismissed as irreceivable.
Reference(s)
ILOAT Judgment(s): 2366, 3433, 3512, 3700, 3876, 3961
Keywords:
disclosure of evidence; failure to exhaust internal remedies; final decision; impugned decision; step in the procedure;
Judgment 4379
131st Session, 2021
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the Administration’s refusal to provide him in a timely manner with unredacted copies of documents and records relied upon by the Internal Oversight Services during the disciplinary investigation.
Judgment keywords
Keywords:
complaint dismissed; disclosure of evidence; investigation;
Judgment 4377
131st Session, 2021
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant alleges that he was promised promotion to grade D-2.
Consideration 9
Extract:
The complainant has requested that the Tribunal order the disclosure of various documents. The Tribunal notes that WHO produced, as an annex to its reply, some of the documents in question and gave reasonable explanations as to why it could not provide others. In these circumstances, the disclosure of additional documents will not be ordered.
Keywords:
disclosure of evidence;
Judgment 4368
131st Session, 2021
International Olive Council
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the cancellation of a competition procedure in which she participated.
Consideration 2
Extract:
The complainant has [...] asked that the IOC be ordered to produce various documents. However, the IOC has submitted, as annexes to the reply, the various documents of which disclosure was requested in the complaint. While the complainant has requested, in her rejoinder, the production of several additional documents, the Tribunal considers that the disclosure of these documents – whose very existence is highly doubtful – is not actually necessary to resolve the dispute. It will not therefore order further disclosure.
Keywords:
disclosure of evidence;
Judgment 4357
131st Session, 2021
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions not to place him on the shortlist for positions for which he had applied as a priority candidate.
Consideration 12
Extract:
[T]he complainant’s pleas in relation to the production of documents are of substance. It is sufficient to refer only to the request of the complainant in his statement of appeal dated 12 December 2016. Quite explicitly he sought, inter alia, the selection reports for vacancy announcements [...]. In its report [...] the Appeals Board explained why it rejected this request. It said that “[n]one of the confidential selection report constitutes an essential document upon which the Impugned Decision not to shortlist the [complainant] for the position was based”. It also characterised other aspects of the request for the production of documents as a fishing expedition. This approach is plainly at odds with the Tribunal’s case law. What the complainant was seeking was evidence to which he was entitled, even if in a redacted form (see Judgment 4293, consideration 4, citing Judgment 4023, consideration 5). While these reports, as completed, are entirely unsupportive of one of his central arguments in these proceedings (who did the shortlisting), they could have been to the opposite effect. Moreover if they had been provided, the complainant may have abandoned this argument and concentrated on others. The Tribunal notes that these reports have been provided in these proceedings as a result of a request of the Tribunal. However, the complainant, who makes a clear distinction in the complaint form and in his submissions between moral and punitive damages, does not seek moral damages for that failure. This breach does not warrant, as sought by the complainant, an award of punitive damages.
Reference(s)
ILOAT Judgment(s): 4023, 4293
Keywords:
disclosure of evidence; fishing expedition;
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 4307
130th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject his request for the reclassification of his post as well as his request for compensation for performing duties at a higher grade than his.
Consideration 5
Extract:
It is well established in the 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, consideration 6; see also Judgment 3264, consideration 15).
Reference(s)
ILOAT Judgment(s): 2700, 3264
Keywords:
disclosure of evidence;
Judgment 4303
130th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the amount of compensation awarded for the unlawful abolition of her post.
Consideration 4
Extract:
The complainant [...] seeks the disclosure of “all documentation related to the RMRC report”. However, the Tribunal considers itself to be sufficiently well informed on the case by the written submissions and thus does not deem it necessary to grant this request.
Keywords:
disclosure of evidence;
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.
Considerations 3-4
Extract:
UNIDO submits that the “claim” for the production of documents relating to the recruitment decision is irreceivable, pursuant to Article VII, paragraph 1, of the Tribunal’s Statute, for failure to exhaust the internal means of redress, because the complainant did not request the documents in the course of his internal appeal. UNIDO states that, moreover, he had not sought review of the administrative decision which rejected his request. UNIDO observes that under Staff Rule 112.02(a) a serving or former staff member who wishes to appeal an administrative decision shall request a review of the decision within 60 days from the date on which the staff member received notification of the decision in writing.
However, a request for the production of documents is not a claim. It is concerned with access to evidence. Receivability is therefore not at issue. Moreover, the Tribunal has stated the basic applicable principles concerning access to documents in consideration 5 of Judgment 4023, as follows:
“According to the case law, 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 on grounds of confidentiality. It follows that a decision cannot be based on a material document that has been withheld from the concerned staff member. The Tribunal has consistently affirmed the confidentiality of the records of the discussions regarding the merits of the applicants for a post. However, this does not extend to the reports regarding the results of the selection process with appropriate redactions to ensure the confidentiality of third parties (see Judgment 3272, considerations 14 and 15, and the case law cited therein, as well as Judgment 3077, consideration 4).”
Reference(s)
ILOAT Judgment(s): 3077, 3272, 4023
Keywords:
disclosure of evidence; new claim;
Judgment 4286
130th Session, 2020
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject her claim of retaliation/harassment.
Consideration 2
Extract:
The complainant’s request for the disclosure of documents is also rejected as it is cast in general, imprecise and speculative terms, which constitute an impermissible “fishing expedition” (see, for example, Judgments 4086, under 9, and 3345, under 9).
Reference(s)
ILOAT Judgment(s): 3345, 4086
Keywords:
disclosure of evidence; fishing expedition;
Judgment 4260
129th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the EPO’s failure to allow her access to her complete medical file and to provide her with a copy thereof in a timely manner.
Consideration 2
Extract:
Regarding a staff member’s request for the disclosure of her or his medical file, the Tribunal recalls that under its case law, stated for example in Judgment 4118, consideration 5, the principle of transparency as well as the individual’s right to access personal data concerning her or him mean that a staff member must be allowed full and unfettered access to her or his medical file and be provided with copies of the full file when requested (paying the associated costs as necessary). The only situation in which this rule does not apply is where specific circumstances temporarily prevent such access. However, a decision to deny a staff member full access to her or his medical file temporarily must be fully justified and reasonable (see, for example, Judgment 3994, consideration 10). The Tribunal also relevantly stated, in Judgment 3120, consideration 6, that in the absence of specific rules or regulations governing the right of a staff member to access her or his own medical file, that right must be considered to comprehend the right to view and obtain copies of all records and notes in the file, and to add relevant notes to correct any part of the file considered wrong or incomplete, and that, so stated, the right to access one’s own medical file gives effect to the organisation’s duty of transparency.
Reference(s)
ILOAT Judgment(s): 3120, 3994, 4118
Keywords:
disclosure of evidence; medical records; personal file;
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 2
Extract:
The complainant seeks oral proceedings and the hearing of numerous witnesses, as well as the disclosure of certain documents. However, the Tribunal considers itself to be sufficiently well informed on the case by the written submissions and thus does not deem it necessary to grant these requests.
Keywords:
disclosure of evidence; oral proceedings;
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.
Consideration 3
Extract:
The complainant submits that the Administration failed to produce documents that she had requested during the course of the internal appeal and reiterates the request in the complaint. The complainant asks the Administration to provide her with a vast array of documents including “reports, correspondence, e-mails, notes, records, memoranda, letters, notices, file contents, minutes, or any other documents or items in the possession of the Administration that may in any way describe, comment on, relate or refer to, control, record, and/or evidence, in general or specifically, the investigation of the alleged conduct” and “the decision to terminate her.” Particularly given the breadth of this request, it can only be characterised as an impermissible “fishing expedition” and is rejected (see Judgment 4086, consideration 9).
Reference(s)
ILOAT Judgment(s): 4086
Keywords:
disclosure of evidence; fishing expedition;
Consideration 4
Extract:
The complainant [...] requested a copy of the [...] report of alleged misconduct and the identity of the person who made this report. Before the Tribunal, the complainant focuses on the Administration’s refusal to disclose the identity of the reporter of the suspected misconduct and contends that this raises a presumption of prejudice and bias as does the refusal to disclose the requested documents. In the absence of compelling reasons justifying the disclosure of the identity of the reporter of suspected misconduct, this request is also rejected. As stated in the Internal Oversight Charter at Paragraph 15, reports of possible misconduct to the Director, IOD, shall be received on a confidential basis and may also be made anonymously. As well, the IOD’s Intranet site specifically provides that the reporting of suspected misconduct may be made confidentially or anonymously. Additionally, contrary to the complainant’s assertion, the identity of the reporter is entirely irrelevant in relation to the nature of the allegations of misconduct by the complainant.
Keywords:
confidential evidence; disclosure of evidence; whistle-blower;
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 6
Extract:
The complainant’s request, in her rejoinder, that WHO be ordered to produce documents relating to her supervisor’s vetting process leading to the latter’s promotion to another post before the end of the investigation of the harassment allegations is rejected as it is irrelevant to the complainant’s harassment complaint.
Keywords:
disclosure of evidence;
Judgment 4240
129th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reassign her to the post of Senior Advisor on Innovative Strategic Information, Strategic Information and Evaluation Department.
Consideration 3
Extract:
The request, which the complainant made in her rejoinder, for WHO to produce documents relating to her first-level supervisor’s vetting process leading to the latter’s promotion to another post before the end of the investigation of the harassment allegations, will also be rejected. That matter is irrelevant to the complainant’s reassignment.
Keywords:
disclosure of evidence;
Judgment 4228
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 reject his request for compensation for loss of earnings allegedly caused by a service-incurred injury.
Consideration 6
Extract:
With regard to the failure to disclose the internal documentation, the Tribunal finds that the complainant was informed of the ACCC’s recommendation in the letter dated 2 December 2014 in which the Director-General’s decision to reject his claim was communicated to him. There was no breach of any due process rights as the complainant was informed of the substance of the ACCC’s recommendation, as well as the Director-General’s final decision. The complainant was provided with sufficient elements to understand the reasoning for rejecting his claim and to exercise his right of appeal.
Keywords:
disclosure of evidence; due process; duty to substantiate decision; motivation; motivation of final decision;
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 11
Extract:
The second procedural ground raised by the complainant involves a contention that he was not provided with all evidence collected by OIGI in order to enable him to mount his defence. The defendant organization’s response in its reply is twofold. Insofar as the complainant’s grievance was that some of the documents (transcripts of interviews) he was given were redacted, the redacted information related to another investigation and was not at all relied upon in consideration of the charges against the complainant. In the circumstances of this case, there is no basis for the Tribunal to doubt this is correct. The second element of the response is that, to the extent that the complainant points to the fact that he was not given 11 transcripts of interviews until after the disciplinary measure of dismissal was imposed, the defendant organization says they were not relevant to the decision to dismiss him. The complainant had all relevant transcripts when pursuing his appeal to the WFP Executive Director and the FAO Appeals Committee and he did not then demonstrate, nor has he in these proceedings before the Tribunal, that those 11 transcripts were or even may have been relevant to the decision to dismiss him. Accordingly, this ground should be rejected.
Keywords:
disciplinary procedure; disclosure of evidence; due process; inquiry; investigation;
Judgment 4218
129th Session, 2020
ITER International Fusion Energy Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to renew her fixed-term contract.
Consideration 6
Extract:
The fourth argument is that there had been a violation of the requirement for transparency. The only point of substance raised on this topic is that the complainant was not provided with copies of certain documents before the CRJAC. Copies of those documents have been provided by the defendant organization in its reply. They should have been provided to the complainant at the time they were provided to the CRJAC (see, for example, Judgment 2588, consideration 7). However, in her rejoinder, the complainant failed to demonstrate in any material way that either the failure to provide them at the time or their content tainted the decision-making process leading to the ultimate decision impugned in these proceedings not to renew her contract and thus failed to prove she suffered prejudice (see Judgment 3377, consideration 16). In these circumstances no moral damages should be awarded.
Reference(s)
ILOAT Judgment(s): 2588, 3377
Keywords:
disclosure of evidence; injury; moral injury;
Judgment 4217
129th Session, 2020
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to provide her with the record of the investigation that ensued after she filed a harassment complaint against her supervisor, and the fact that she received no compensation for the moral harassment that she claims to have suffered.
Considerations 2-3
Extract:
The complainant alleges, among other things, that her right to due process had been violated as a result of IFAD’s refusal to provide her with the investigation file containing, in addition to the investigation report itself, the minutes of the meetings held and the statements gathered. IFAD submits that it was not able to provide the file in question because the purpose of an investigation is not to share the findings with the person who lodged the complaint but to establish the facts. Nevertheless, it produced a redacted copy of the investigation report as an annex to its surrejoinder.
In view of the fact that it did so, the Tribunal considers that there is, in any event, no need to grant the request for disclosure of the other elements of the investigation file, which is not necessary to resolve the dispute.
Keywords:
confidential evidence; disclosure of evidence; inquiry; investigation;
Judgment 4183
128th Session, 2019
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions not to select him for three positions for which he had applied as a priority candidate.
Consideration 9
Extract:
The complainant sought the disclosure of certain documents. As the proceedings fail at the threshold it is unnecessary to address this request.
Keywords:
disclosure of evidence;
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