Due process (187,-666)

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• Judgment 4862

  
  138th Session, 2024
  World Health Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the decision not to provide her with an investigation report on her sexual harassment complaint at the end of the investigation and before a decision was taken on her harassment complaint.

  Consideration 6

  Extract:

  The non-disclosure of the investigation report prior to the adoption of the decision on the harassment complaint does not infringe the principle of due process. According to the Tribunal’s case law, staff members, as a rule, have the right to access all evidence upon which a decision affecting their interests is based (see Judgment 4217, consideration 4). This implies that: (i) a decision is adopted; (ii) this decision negatively affects the staff member; (iii) the decision relies on the evidence of which the staff member demands the disclosure. Such requirements do not occur in the present case, as no decision on the harassment complaint had been adopted at the time the disclosure of the report was requested.

  Reference(s)

  ILOAT Judgment(s): 4217
  

  Keywords:

  due process; investigation report;
  

  
  
  

• Judgment 4856

  
  138th Session, 2024
  Food and Agriculture Organization of the United Nations
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant impugns the decision to dismiss him for misconduct.

  Consideration 14

  Extract:

  In its well-reasoned opinion, the Committee correctly concluded (and the Director-General confirmed in the impugned decision) that due process was observed during the OIGI’s investigation, noting that the complainant had been interviewed and given the opportunity to test the evidence. This is apparent from the information contained in consideration 1 of this judgment. The Committee also concluded, correctly in the Tribunal’s view, and as the Director-General accepted in the impugned decision, the fact that OIGI did not interview persons whom the complainant mentioned during his interview, notably, the two brothers or the CEO of the Political Party, did not violate due process because the complainant had not shown that not interviewing them caused him prejudice.

  Keywords:

  adversarial proceedings; due process; evidence; investigation; prejudice; witness;
  

  
  
  

• Judgment 4840

  
  138th Session, 2024
  International Organization for Migration
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the decision not to renew her fixed-term contract due to underperformance after placing her on a three-month Performance Improvement Plan.

  Consideration 10

  Extract:

  [A]n international organization must comply with the procedures it has established for evaluating performance before deciding to terminate or not to renew a contract for unsatisfactory performance. In Judgment 4666, consideration 4, the Tribunal aptly stated the following in this respect:
  “An examination of a staff member’s assessment report before taking any decision not to renew that person’s contract on the basis of unsatisfactory performance is a fundamental obligation, non-compliance with which constitutes a procedural flaw that has the effect of an essential fact being overlooked (see, in particular, Judgments 2992, consideration 18, 2096, consideration 13, and the case law cited therein).”
  In Judgment 3417, also involving IOM, this principle was enunciated in no uncertain terms at consideration 6:
  “However while there is an undoubted right of an organisation to decide not to renew a fixed-term contract, it does not follow that an organisation is, additionally, immune from any liability if it has failed to follow its own procedures designed to monitor, assess and evaluate staff performance and progress. The fundamental purpose of such procedures is to explicitly alert a staff member to identified deficiencies in her or his performance and thus give the staff member an opportunity to address those deficiencies and improve performance. The interaction of such procedures and decisions not to renew fixed-term contracts was discussed by the Tribunal in Judgment 2991, under 13:
  ‘It is a general principle of international civil service law that there must be a valid reason for any decision not to renew a fixed-term contract. If the reason given is the unsatisfactory nature of the performance of the staff member concerned, who is entitled to be informed in a timely manner as to the unsatisfactory aspects of his or her service, the organisation must base its decision on an assessment of that person’s work carried out in compliance with previously established rules [...].’”
  This is entirely consistent with the related principle to the effect that an organization cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules established to evaluate that performance (see, for example, Judgments 3932, consideration 21, and 3252, consideration 8, and the case law cited therein).

  Reference(s)

  ILOAT Judgment(s): 2096, 2991, 2992, 3252, 3417, 3932, 4666
  

  Keywords:

  breach; due process; duty to substantiate decision; fixed-term; non-renewal of contract; patere legem; performance evaluation; rules of the organisation; unsatisfactory service;
  

  Consideration 18

  Extract:

  [I]n the process leading up to the 6 October 2019 decision that ended up being confirmed by the impugned decision, IOM breached Rule 1.2.2(b) and Instruction IN/181 by not undertaking in due course the required periodic appraisal of the complainant’s work. The leap to the PIP was, in this sense, premature and a breach of due process, as much as a failure to adhere to explicit organizational rules.

  Keywords:

  breach; due process; patere legem; performance; performance evaluation; performance report; rules of the organisation;
  

  Consideration 29

  Extract:

  Firm and constant precedent has it that an international organization has a duty to provide valid reasons for a decision not to renew a fixed-term contract. For example, in Judgment 4503, consideration 7, the Tribunal stated the following in support of this principle:
  “Even though an organization is generally under no obligation to extend a fixed-term contract or to reassign someone whose fixed-term contract is expiring, unless it is specifically provided by a provision in the staff rules or regulations, the reason for the non-renewal must be valid (and not an excuse to get rid of a staff member) and be notified within a reasonable time (see Judgments 1128, consideration 2, 1154, consideration 4, 1983, consideration 6, 2406, consideration 14, 3353, consideration 15, 3582, consideration 9, 3586, consideration 10, 3626, consideration 12, and 3769, consideration 7).
  An international organization is under an obligation to consider whether or not it is in its interests to renew a contract and to make a decision accordingly: though such a decision is discretionary, it cannot be arbitrary or irrational; there must be a good reason for it and the reason must be given (see Judgment 1128, consideration 2).”
  In Judgment 3586, consideration 6, the Tribunal further clarified that “[t]hese grounds of review are applicable notwithstanding that the Tribunal has consistently stated, in Judgment 3444, [consideration] 3, for example, that an employee who is in the service of an international organization on a fixed-term contract does not have a right to the renewal of the contract when it expires and the complainant’s terms of appointment contained a similar provision”.

  Reference(s)

  ILOAT Judgment(s): 1128, 3444, 3586, 4503
  

  Keywords:

  breach; due process; duty to substantiate decision; fixed-term; non-renewal of contract; patere legem; performance evaluation; rules of the organisation; unsatisfactory service;
  

  Consideration 20

  Extract:

  [A]s a result, the complainant was ultimately not provided with a full three months to improve her performance, even though it was initially determined by the organization that this was the necessary period established for improvement. In addition, while the draft PIP contemplated holding meetings every two weeks, in the end only four meetings took place to discuss the complainant’s PIP (24 July, 28 August, 4 September and 6 October 2019). And while the complainant was told at the 4 September meeting that her fixed-term contract would be renewed for six months, at the 6 October meeting that followed, she was rather notified of the non-renewal of that fixed-term contract beyond its expiry on 31 October 2019 because of the alleged sudden deterioration of her performance after mid-September.
  It follows that, on this basis alone, the PIP process was irregular and procedurally flawed, as was the subsequent decision not to renew the complainant’s contract based on the results of that PIP.

  Keywords:

  breach; due process; patere legem; performance; performance evaluation; performance report; rules of the organisation; unsatisfactory service;
  

  Considerations 23-24

  Extract:

  [T]he CoM thus failed to give the complainant reasonable time to improve her performance between the time that he recognized that it had improved sufficiently enough to warrant a longer contract renewal and the last-minute reversal of this view that led to the sudden imposition of the decision of non-renewal.
  In this regard, the Tribunal considers that the Organization breached its duty to act in good faith by failing to provide adequate time for the complainant to improve her performance. The Tribunal recalls its well-settled case law that in terms of alleged unsatisfactory performance, a staff member should not only be warned but also given an opportunity to improve and correct the alleged poor or unsatisfactory performance. In Judgment 3282, consideration 5, it stated the following in this respect:
  “As in Judgment 2916, under 4, the Tribunal holds that ‘an organisation may not in good faith end someone’s appointment for poor performance without first warning him and giving him an opportunity to do better [...]. Moreover, it cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules established to evaluate that performance [...].’”
  Similarly, in Judgment 3026, consideration 8, the Tribunal recalled that “[a]n opportunity to improve requires not only that the staff member be made aware of the matters requiring improvement, but, also, that he or she be given a reasonable time for that improvement to occur”.

  Reference(s)

  ILOAT Judgment(s): 2916, 3026, 3282
  

  Keywords:

  breach; due process; non-renewal of contract; patere legem; performance; performance evaluation; performance report; rules of the organisation; unsatisfactory service; warning; work appraisal;
  

  Judgment keywords

  Keywords:

  breach; complaint allowed; complaint allowed in part; due process; duty to substantiate decision; fixed-term; non-renewal of contract; patere legem; performance evaluation; rules of the organisation; unsatisfactory service;
  

  Consideration 34

  Extract:

  [T]he complainant claims material damages in an amount equal to two years’ salary, benefits, step increases, pension contributions, and all other entitlements and emoluments that she would have received had she not been wrongfully separated from service. This claim is not substantiated in the complainant’s proceedings be it in terms of years sought or of her expectations within the Organization. Given that any fixed-term contract the complainant ever held with IOM never exceeded one year and that the total length of her services with the Organization lasted approximately five years, the Tribunal considers that this claim is not justified and overstated in the circumstances.
  An award of material damages in an amount equivalent to nine months’ salary, including benefits, entitlements and emoluments, represents a fair and reasonable compensation in the present case. IOM will be ordered to pay this amount to the complainant, plus interest at the rate of 5 per cent per annum from 1 November 2019, less any amounts she may have earned from other employment during that period of nine months beginning on 1 November 2019.

  Keywords:

  breach; burden of proof; due process; fixed-term; injury; material damages; non-renewal of contract;
  

  Consideration 35

  Extract:

  The complainant also claims moral damages in an amount equal to no less than one year of her former gross salary and benefits. But the Tribunal’s case law states that in respect of damages, the complainant bears the burden of proof and that she must provide evidence of the alleged injury (see, for example, Judgment 4156, consideration 5). It suffices to note that in the present situation, notwithstanding this precedent, the complainant did not provide any specification of the moral injury she allegedly suffered nor evidence supporting its existence. This claim must consequently be rejected.

  Reference(s)

  ILOAT Judgment(s): 4156
  

  Keywords:

  breach; burden of proof; due process; fixed-term; injury; moral damages; non-renewal of contract;
  

  
  
  

• Judgment 4839

  
  138th Session, 2024
  International Organization for Migration
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant impugns the decision to reject her sexual harassment claim.

  Judgment keywords

  Keywords:

  complaint allowed; counsel; disclosure of evidence; due process; flaw; investigation; sexual harassment;
  

  
  
  

• Judgment 4837

  
  138th Session, 2024
  International Federation of Red Cross and Red Crescent Societies
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant, who separated from service, contests the placement in his personnel file of a letter stating that he was found to have committed sexual harassment during his employment and that, had he not separated from service, he would have been imposed the disciplinary measure of a final letter of warning.

  Considerations 18-21

  Extract:

  [T]he complainant submits, in substance, that the Appeals Commission prevented him from attending the hearing of the witnesses it called to permit him to test the evidence, and, in any event, that he was not even provided with the statements of such witnesses […] The Federation relies on Judgment 4408, where the Tribunal concluded, in consideration 4, that an interview conducted as an “investigative measure” to enable an appeal body to obtain general information not relating specifically to the situation of the complainant was not a hearing where the complainant was required to be present or where the content of the discussion had to be disclosed to him or her […] It is obvious from the content of the Appeals Commission report that the information sought by the Commission was not of a general nature and that it was relating specifically to the investigation and disciplinary procedure at issue. In these circumstances, the Tribunal considers that the complainant had a right, at least to have been apprised of the content of the interviews and to provide his comments if he so wished. Since this was not done, the complainant’s right to be heard was violated […] For this, which is an infringement of due process, he will be awarded 15,000 Swiss francs.

  Reference(s)

  ILOAT Judgment(s): 4408
  

  Keywords:

  due process; internal appeal; internal appeals body; internal procedure; moral damages; oral proceedings; right to be heard; witness;
  

  
  
  

• Judgment 4836

  
  138th Session, 2024
  International Federation of Red Cross and Red Crescent Societies
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges his non-selection for several positions.

  Considerations 13-17

  Extract:

  [T]he complainant submits, in substance, that the Appeals Commission prevented him from attending the hearing of the witnesses it called to permit him to test the evidence, and, in any event, that he was not even provided with the statements of such witnesses […] The Federation relies on Judgment 4408, where the Tribunal concluded, in consideration 4, that an interview conducted as an “investigative measure” to enable an appeal body to obtain general information not relating specifically to the situation of the complainant was not a hearing where the complainant was required to be present or where the content of the discussion had to be disclosed to him or her […] It is obvious from the content of the Appeals Commission report that the information sought by the Commission was not of a general nature and that it was relating specifically to the selection procedures at issue. In these circumstances, the Tribunal considers that the complainant had a right, at least to have been apprised of the content of the interviews and to provide his comments if he so wished. Since this was not done, the complainant’s right to be heard was violated […] For this, which is an infringement of due process, he will be awarded 15,000 Swiss francs.

  Reference(s)

  ILOAT Judgment(s): 4408
  

  Keywords:

  due process; internal appeal; internal appeals body; internal procedure; moral damages; oral proceedings; right to be heard; witness;
  

  
  
  

• Judgment 4835

  
  138th Session, 2024
  International Federation of Red Cross and Red Crescent Societies
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to rescind an offer of employment that had been extended to him, on the basis that he had been disciplined for sexual misconduct.

  Considerations 4-6

  Extract:

  [T]he complainant submits, in substance, that the Appeals Commission prevented him from attending the hearing of the witnesses it called to permit him to test the evidence, and, in any event, that he was not even provided with the statements of such witnesses […] The Federation relies on Judgment 4408, where the Tribunal concluded, in consideration 4, that an interview conducted as an “investigative measure” to enable an appeal body to obtain general information not relating specifically to the situation of the complainant was not a hearing where the complainant was required to be present or where the content of the discussion had to be disclosed to him or her […] It is obvious […] that the Commission interviewed these Federation staff on various issues which touched and concerned “the circumstances in which the offer was rescinded”. This tends to demonstrate that the information sought by the Commission was not of a general nature, and that it was relating specifically to the rescission of the offer of employment at issue. In these circumstances, the Tribunal considers that the complainant had a right, at least to have been apprised of the content of the interviews and to provide his comments if he so wished. Since this was not done, the complainant’s right to be heard was violated […] For this, which is an infringement of due process, he will be awarded 15,000 Swiss francs.

  Reference(s)

  ILOAT Judgment(s): 4408
  

  Keywords:

  due process; internal appeal; internal appeals body; internal procedure; moral damages; oral proceedings; right to be heard; witness;
  

  
  
  

• Judgment 4834

  
  138th Session, 2024
  International Federation of Red Cross and Red Crescent Societies
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the non-extension of his fixed-term appointment.

  Considerations 12-15

  Extract:

  [T]he complainant submits, in substance, that the Appeals Commission prevented him from attending the hearing of the witnesses it called to permit him to test the evidence, and, in any event, that he was not even provided with the statements of such witnesses […] The Federation relies on Judgment 4408, where the Tribunal concluded, in consideration 4, that an interview conducted as an “investigative measure” to enable an appeal body to obtain general information not relating specifically to the situation of the complainant was not a hearing where the complainant was required to be present or where the content of the discussion had to be disclosed to him or her […] While the Appeals Commission’s report is almost silent about the content of those interviews, its statement that “[…]” tends to demonstrate that the interviews were not about the Federation’s budgetary framework but about the specific situation of the complainant and the decision not to extend his contract. In these circumstances, the Tribunal considers that the complainant had a right, at least to have been apprised of the content of the interviews and to provide his comments if he so wished. Since this was not done, the complainant’s right to be heard was violated […] For this, which is an infringement of due process, he will be awarded 15,000 Swiss francs.

  Reference(s)

  ILOAT Judgment(s): 4408
  

  Keywords:

  due process; internal appeal; internal appeals body; internal procedure; moral damages; oral proceedings; right to be heard; witness;
  

  
  
  

• Judgment 4826

  
  138th Session, 2024
  International Criminal Court
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant seeks compensation for alleged procedural errors in the processing of her complaint of harassment and misconduct.

  Judgment keywords

  Keywords:

  case reopened; complaint dismissed; due process; harassment; procedural flaw;
  

  
  
  

• Judgment 4820

  
  138th Session, 2024
  European Organisation for the Safety of Air Navigation
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: Le requérant conteste les décisions de rejeter ses plaintes pour harcèlement moral et demande réparation pour le préjudice qu’il estime avoir subi.

  Consideration 8

  Extract:

  Selon la jurisprudence constante du Tribunal, la question de savoir si l’on se trouve en présence d’un cas de harcèlement se résout à la lumière d’un examen rigoureux de toutes les circonstances objectives ayant entouré les actes dénoncés (voir, notamment, le jugement 4471, au considérant 18) et l’accusation de harcèlement doit être corroborée par des faits précis dont la preuve incombe à celui qui affirme en avoir été victime, étant entendu qu’il n’a pas à démontrer que la personne accusée aurait agi intentionnellement (voir, par exemple, les jugements 4344, au considérant 3, 3871, au considérant 12, et 3692, au considérant 18). Lorsqu’une procédure spécifique est prévue par l’organisation concernée, elle doit être suivie et les règles doivent être correctement appliquées. Le Tribunal a également considéré que l’enquête doit être objective, rigoureuse et approfondie, en ce sens qu’elle doit être menée d’une manière permettant de s’enquérir de tous les faits pertinents sans pour autant compromettre la réputation de la personne mise en cause et en donnant à ce dernier la possibilité de vérifier les preuves avancées à son encontre et de répondre aux accusations formulées (voir, notamment, les jugements 4663, aux considérants 10 à 13, 4253, au considérant 3, 3314, au considérant 14, et 2771, au considérant 15). Il est toutefois entendu qu’un fonctionnaire qui affirme être ou avoir été victime de harcèlement n’a pas besoin de démontrer, pas plus que la personne ou l’organe chargé(e) d’évaluer la plainte, que les faits permettent d’établir au-delà de tout doute raisonnable le caractère effectif du harcèlement (voir, en ce sens, les jugements 4663, au considérant 12, et 4289, au considérant 10). L’élément essentiel dans la reconnaissance d’un harcèlement est en effet la perception que la personne concernée peut raisonnablement et objectivement avoir d’actes ou de propos qui sont propres à la dévaloriser ou à l’humilier (voir les jugements 4663, au considérant 13, et 4541, au considérant 8).
  Le Tribunal rappelle par ailleurs qu’il ne lui appartient pas de réévaluer les preuves dont dispose l’organe chargé d’enquêter, qui, en sa qualité de première instance d’examen des faits, a eu l’avantage de rencontrer et d’entendre directement la plupart des personnes concernées et d’évaluer la fiabilité de leurs déclarations (voir, en ce sens, les jugements 4291, au considérant 12, et 3593, au considérant 12). Il n’interviendra en conséquence qu’en cas d’erreur manifeste (voir, notamment, les jugements 4344, au considérant 8, 4091, au considérant 17, et 3597, au considérant 2).

  Reference(s)

  ILOAT Judgment(s): 2771, 3314, 3593, 3597, 3692, 3871, 4091, 4253, 4291, 4344, 4471, 4663
  

  Keywords:

  adversarial proceedings; appraisal of evidence; burden of proof; due process; harassment; inquiry; judicial review; manifest error; organisation's duties; procedure before the tribunal; right; right to reply; standard of proof;
  

  Considerations 10-11

  Extract:

  [I]l est, en premier lieu, manifeste, d’une part, que le rapport d’enquête final, contrairement à ce qu’avait demandé le requérant à diverses reprises, ne lui a jamais été communiqué dans le cadre de la procédure interne, fût-ce sous une forme anonymisée, ce qui ne lui a pas permis de se faire entendre utilement et en toute connaissance de cause dans le cadre de cette procédure.
  En effet, il résulte de la décision du Directeur général du 27 mars 2020, par laquelle ce dernier a rejeté le recours interne introduit contre la décision de rejeter la première plainte pour harcèlement en ce qu’elle était dirigée contre M. P. H., que seules les conclusions du rapport d’enquête, figurant au point 5 de celui-ci, ont été communiquées au requérant, en annexe de cette décision, tandis que le Directeur général s’est contenté, dans la décision proprement dite, de faire état de ce que « les faits examinés dans le cas du requérant n’étaient pas constitutifs d’un harcèlement moral ». Si le Tribunal s’en réfère par ailleurs à ces conclusions du rapport d’enquête, force est de constater que celles-ci se limitent aux considérations suivantes : en premier lieu, « [l]a perception des faits donnée par [le requérant] n’est pas en phase avec la perception qui en a été faite par M. [P.] H. et par tous les témoins du MUAC [à Maastricht] qui ont été entendus. Les documents renvoient à des réunions, à des appréciations et à des situations, mais ne permettent pas d’établir l’existence d’une forme quelconque de harcèlement psychologique»; en deuxième lieu, «l’enquête n’a porté que sur un possible harcèlement psychologique de la part de M. [P.] H., étant donné que les enquêtrices n’avaient pas de mandat pour se prononcer sur un contexte plus large»; en troisième lieu, diverses observations formulées par les enquêtrices concernant les modalités selon lesquelles était organisé le programme de recrutement de jeunes diplômés par l’Organisation.
  Le Tribunal considère qu’une communication aussi limitée des conclusions du rapport d’enquête ne répond pas, à l’évidence, aux exigences posées par sa jurisprudence en la matière et qu’il s’ensuit que le requérant peut à juste titre faire valoir qu’il n’a pas été en mesure de vérifier, même au stade de la procédure de recours interne, la teneur des déclarations du prétendu harceleur et des témoins, ni le sérieux de l’enquête menée (comparer, notamment, avec le jugement 4471, au considérants 14 et 23). Le Tribunal rappelle, en effet, que, selon sa jurisprudence constante, un fonctionnaire est, en règle générale, en droit d’avoir connaissance de toutes les pièces sur lesquelles l’autorité compétente est appelée à se fonder pour prendre une décision le concernant (voir, par exemple, les jugements 4739, au considérant 10 (et la jurisprudence citée), 4217, au considérant 4, 3995, au considérant 5, 3295, au considérant 13, 3214, au considérant 24, 2700, au considérant 6, ou 2229, au considérant 3 b)). Il en découle, en particulier, qu’une organisation est tenue de communiquer au fonctionnaire ayant déposé une plainte pour harcèlement le rapport élaboré à l’issue de l’enquête diligentée en vue d’instruire cette plainte (voir, notamment, les jugements 4217, au considérant 4, 3995, au considérant 5, 3831, au considérant 17, et 3347, aux considérants 19 à 21).
  L’Organisation fait valoir à ce sujet que le rapport complet de l’enquête est annexé à son mémoire en réponse et que cela est conforme à la jurisprudence du Tribunal sur ce point, en vertu de laquelle les motifs d’une décision peuvent résulter d’une autre procédure ou peuvent être communiqués à l’occasion d’une contestation ultérieure (voir les jugements 3316, au considérant 7, 1757, au considérant 5, et 1590, au considérant 7).
  Mais le Tribunal a déjà rappelé à cet égard que, s’il peut être admis que le défaut de communication d’une pièce puisse être corrigé, dans certains cas, lorsqu’il y est remédié ultérieurement, y compris à l’occasion de la procédure suivie devant lui (voir, par exemple, les jugements 4217, au considérant 4, et 3117, au considérant 11), une telle régularisation ne saurait être admise dans l’hypothèse où le document en cause revêt, comme c’est le cas en l’espèce, une importance essentielle au regard de l’objet du litige (voir les jugements 4217, au considérant 4, 3995, au considérant 5, 3831, aux considérants 16, 17 et 29, 3490, au considérant 33, et 2315, au considérant 27).

  Reference(s)

  ILOAT Judgment(s): 1590, 1757, 2229, 2315, 2700, 3117, 3214, 3295, 3316, 3347, 3490, 3831, 3995, 4217, 4471, 4739
  

  Keywords:

  confidential evidence; disclosure of evidence; due process; duty to inform; duty to inform about the investigation; general principle; harassment; internal appeals body; investigation report; motivation; motivation of final decision; official; organisation's duties; procedural flaw; right to information;
  

  
  
  

• Judgment 4815

  
  138th Session, 2024
  United Nations Industrial Development Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests his summary dismissal.

  Consideration 14

  Extract:

  The complainant submits that there were procedural irregularities in the investigative process owing to the anonymity of the persons who made the allegations; no witness statements, transcripts or summaries of the interviews were provided, and there was no clear information regarding the allegations resulting in a breach of his due process rights. The case law has it that a staff member is entitled to due process before a disciplinary sanction is imposed. In this regard, he or she must be given, at the very least, an opportunity to test the evidence on which the charges are based, to give his own account of the facts, to put an argument that the conduct in question does not amount to misconduct and that, even if it does, it should not attract the proposed sanction (see Judgment 3137, consideration 6, and the case law referred to therein). Importantly, however, in light of the complainant’s foregoing pleas concerning the violation of due process, it is notable the Tribunal determined, in consideration 22 of Judgment 4615, that the right of defence of a complainant was not affected by the fact that the officials heard as witnesses were not named; it was sufficient for the complainant to know the content of the statements and it was not necessary for her to know the witnesses’ names; that furthermore, the Advisory Board redacted some names for reasons of confidentiality, since some officials feared retaliation by the complainant, which was a reasonable step to strike a balance between the right of defence of the accused person and the right of the witnesses to be protected against retaliation.”

  Reference(s)

  ILOAT Judgment(s): 3137, 4615
  

  Keywords:

  disciplinary procedure; due process; procedural rights during investigation;
  

  
  
  

• Judgment 4800

  
  137th Session, 2024
  European Patent Organisation
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the rejection of her requests for special leave for very serious illness of a child.

  Consideration 17

  Extract:

  [A]llowing the complainant to access this benefit would entail the redefinition of her requests, since they referred to special leave for “very serious illness”, rather than “serious illness”, of a child. However, in this area, the Organisation should not adopt an excessively formalistic approach towards its employees [...].

  Keywords:

  due process; sick leave;
  

  
  
  

• Judgment 4770

  
  137th Session, 2024
  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:

  According to the Tribunal’s case law, the cross-examination of witnesses is not a requirement for the lawfulness of the investigation and the disciplinary proceedings, provided that due process be ensured by other means. In the present case, the Tribunal is satisfied that due process was respected, despite the fact that the complainant had no opportunity to cross-examine the witnesses. Indeed, he was informed of the precise allegations made against him and was provided with the verbatim records of the statements of the witnesses. He was thus able to confront and test the evidence, even though he was not present when the statements were made and was not able to cross-examine the witnesses who made them. Moreover, the investigation relied not only on the statements rendered by three witnesses, but also on documentary evidence.

  Keywords:

  disciplinary procedure; due process; investigation; witness;
  

  
  
  

• Judgment 4739

  
  137th Session, 2024
  Global Fund to Fight AIDS, Tuberculosis and Malaria
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the Global Fund’s decision to close his harassment complaint and not to provide him with a copy of the investigation report.

  Judgment keywords

  Keywords:

  case sent back to organisation; complaint allowed in part; disclosure of evidence; due process; duty to inform about the investigation; investigation report; order to communicate a report;
  

  Consideration 13

  Extract:

  Since the complainant was denied due process in the internal appeal and was unlawfully deprived of the possibility of effectively challenging the findings of the investigation in the internal appeal process, he will be awarded moral damages in the amount of 15,000 euros.

  Keywords:

  due process; internal appeal; moral damages;
  

  Consideration 10

  Extract:

  As regards the complainant’s argument that his due process rights were violated, the Tribunal recalls its case law, recently confirmed in Judgment 4313, consideration 7, that “a staff member is entitled to be apprised of all material evidence that is likely to have a bearing on the outcome of her or his claims (see Judgment 2767, under 7(a)) and that failure to disclose that evidence constitutes a serious breach of the requirements of due process (see Judgment 3071, under 37)”, as well as that “in the context of an investigation into allegations of harassment, a complainant must have the opportunity to see the statements gathered in order to challenge or rectify them, if necessary by furnishing evidence (see Judgments 3065, under 8, 3617, under 12, 4108, under 4, 4109, under 4, 4110, under 4, and 4111, under 4)”. Also, in Judgment 4217, consideration 4, the Tribunal held that “by refusing to provide the complainant with the [investigation] report […] during the internal appeals procedure it nevertheless unlawfully deprived her of the possibility of usefully challenging the findings of the investigation” and “the fact that the complainant was ultimately able to obtain a copy of the report during the proceedings before the Tribunal does not remedy the flaw tainting the internal appeal process”.
  In Judgment 4547, consideration 10, the Tribunal held that:
  “It is well settled in the Tribunal’s case law that an international organisation is bound to grant a request from the staff member concerned for a copy of the report delivered by the investigative body at the end of an investigation into a harassment complaint, even if that means the report must be redacted in order to maintain the confidentiality of some aspects of the investigation, in particular the testimony gathered during that investigation (see, in particular, Judgments 3347, considerations 19 to 21, and 3831, consideration 17, and also Judgments 3995, consideration 5, and 4217, consideration 4).”
  The legal vacuum in the Global Fund’s rules does not absolve the Administration from the obligation to disclose the investigation report to a person reporting harassment.

  Reference(s)

  ILOAT Judgment(s): 2767, 3065, 3071, 3347, 3347, 3617, 3831, 3995, 4108, 4109, 4110, 4111, 4217, 4313, 4547
  

  Keywords:

  disclosure of evidence; due process; duty to inform about the investigation; investigation report; right to information;
  

  Consideration 10

  Extract:

  According to the well-settled case law of the Tribunal, recently recalled in Judgment 4547, consideration 3, “a staff member who lodges a harassment complaint is plainly a party to the procedure conducted to ascertain whether that complaint is well founded, even though she or he would not be a party to any subsequent disciplinary proceedings taken against the perpetrator in the event that the harassment was recognised. The staff member concerned is therefore entitled to know whether it has been recognised that acts of harassment have been committed against her or him and, if so, to be informed how the organisation intends to compensate her or him for the material and/or moral injury suffered”.

  Reference(s)

  ILOAT Judgment(s): 4547
  

  Keywords:

  disclosure of evidence; due process; duty to inform about the investigation; investigation report; right to information;
  

  Consideration 12

  Extract:

  The Global Fund’s refusal to provide the complainant with a copy of the investigation report, even with reasonable redactions to respect the confidential nature of some aspects of the investigation, during the internal appeal process, seriously breached the complainant’s right to due process. It unlawfully deprived him of the possibility of effectively challenging the findings of the investigation in the internal appeal process. It follows that the impugned decision […] was tainted by a fundamental flaw and must therefore be set aside […].

  Keywords:

  disclosure of evidence; due process; internal appeal; investigation report; right to information;
  

  Consideration 13

  Extract:

  In the present case, the Tribunal does not have sufficient information that would enable it to reach an informed decision on the complainant’s harassment complaint. The investigation report before the Tribunal is so heavily redacted that much of the documentation relevant to the allegation of harassment, namely the witness statements, is omitted. […] In these circumstances, the Tribunal considers it appropriate to refer the case back to the Global Fund so that (unless the case is settled in the meantime): (i) the Appeal Board shall carry out a new internal appeal process, in line with due process requirements (including by giving the complainant the opportunity to comment on the investigation report and the evidence gathered, redacted as appropriate to safeguard the interests of third parties, in order to challenge or rectify them); and (ii) the Executive Director shall take a new decision on the Appeal Board’s recommendation.

  Keywords:

  case sent back to organisation; due process; internal appeal;
  

  
  
  

• Judgment 4695

  
  136th Session, 2023
  European Organisation for the Safety of Air Navigation
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision requiring him to reimburse the undue payments of salary he received during absences that were declared to be unjustified by the Administration.

  Consideration 11

  Extract:

  [T]he Tribunal has repeatedly confirmed that a staff member must have access to all evidence on which an authority bases or intends to base its decision against her or him (see Judgments 4412, consideration 14, and 2700, consideration 6). In Judgment 4587, consideration 12, the Tribunal stated that the failure to communicate important documents to a staff member before a decision is taken against her or him is a breach of the complainant’s rights to proper due process, noting in particular the following:
  “[It] disregarded the rights of the complainant to proper due process in terms of communication of documents. The case law of the Tribunal establishes that, as a general rule, a staff member must have access to all evidence on which the authority bases (or intends to base) its decision against her or him. Under normal circumstances, such evidence cannot be withheld on grounds of confidentiality (see, for example, Judgment 2700, consideration 6; see also, on the issue of breach of due process, Judgment 4412, consideration 14).”
  The complainant’s first plea is therefore well founded. This breach by the Organisation of the complainant’s rights to due process vitiates the decision of the Head of the Human Resources and Services Unit of 26 November 2019 on which the impugned decision of 7 December 2020 was based, which renders both these decisions legally flawed.
  

  Reference(s)

  ILOAT Judgment(s): 2700, 4412, 4587
  

  Keywords:

  disclosure of evidence; due process;
  

  
  
  

• Judgment 4684

  
  136th Session, 2023
  United Nations Educational, Scientific and Cultural Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the classification exercise for her post and seeks compensation in this regard.

  Considerations 5-7

  Extract:

  Turning to the irregularity on which the complainant relies in relation to the proceedings before the Appeals Board, on the ground that there were two successive versions of the alternative opinion that appeared in the Board’s report, the Tribunal is astonished to note that, aside from the fact that the “alternative” opinion was in fact that of the majority of the Board, there were indeed two versions signed on different dates, being 9 May and 22 May 2019 respectively, by the three members of the Board who subscribed to it.
  Other than mentioning that the Secretary of the Appeals Board forwarded the second report with “corr.” added to the reference, the Organization has provided no explanation for this, asserting only that the second version was merely intended to correct the first. [...]
  In the absence of any explanation in the file concerning these different versions which dealt with the very question of the irregularities which allegedly tainted the Director-General’s decision, it is easy to understand the complainant’s confusion. What is more, in the impugned decision, the Board’s report to which the Director-General referred is the one which included the second version of the alternative opinion. That version merely attempts to explain why the procedure followed was correct, without commenting on the previous statement of three members of the Board that they “[found] few irregularities to taint the Director-General’s decision”, which implied that there were some.
  Even if the second version of the alternative opinion of the Appeals Board of 22 May 2019 is valid because it was duly signed by the three Board members who subscribed to it and by the Secretary who forwarded it with the reference “corr.”, the Tribunal nonetheless agrees, in view of the unusual circumstances revealed by the evidence, that the complainant suffered moral injury as a result of the confusion caused by the anomalies described above, which will be fairly redressed by awarding her compensation in the amount of 3,000 euros.
  

  Keywords:

  due process;
  

  
  
  

• Judgment 4660

  
  136th Session, 2023
  International Criminal Police Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the Secretary General’s decision to dismiss him summarily without indemnities on disciplinary grounds.

  Consideration 9

  Extract:

  [A]lso with regard to the video footage [...], the complainant takes issue with the fact that he himself was not able to view it, even though the Joint Disciplinary Committee had accepted it into evidence, and that he was therefore not able to defend himself effectively at his hearing before that committee, where he was questioned about the facts brought to light by that footage. That plea must also be accepted. Staff Rule 10.3.2(5) provides that “[t]he official concerned [...] shall have access to all documents and forms of evidence submitted to the Joint Committees”, bearing in mind that, although it appears that it was at the initiative of the Committee itself that certain members viewed the footage in question, that footage must obviously be considered as evidence submitted to the Committee for the purposes of this provision. This statutory requirement is in line with the Tribunal’s case law, applicable even where there is no explicit provision, under which a staff member must, as a general rule, have access to all evidence on which an authority bases or intends to base a decision that affects her or him (see, for example, Judgments 4343, consideration 13, 3640, consideration 19, 3295, consideration 13, and 2229, consideration 3(b)). This case law, which aims to allow the staff member concerned to comment on the evidence, applies to video footage as it does to any other piece of evidence, it being noted in this respect that, although such a recording by definition captures an objective reality, it is nonetheless likely to give rise to explanations and comments that may influence the way its content is evaluated.
  It is not disputed that the complainant was not invited to view the footage in question, even though part of its content was used in evidence against him. The Organization maintains that this does not mean that the procedure followed was flawed, since the complainant was informed of the substance of the content of this footage during his hearing before the Committee and was questioned during that hearing about the facts that it revealed, which thus enabled him to express his views on this piece of evidence. However, this argument will be dismissed, as the Tribunal considers that in the present case it was essential, for the complainant to comment meaningfully thereon, that he be able to view the content of the footage for himself and that he be afforded this opportunity prior to his hearing in order to allow him time to prepare his defence. Lastly, while the Organization seeks to argue that the complainant had not requested access to the footage in question, that objection is irrelevant as the complainant had not been notified in advance of the Committee’s intention to use this piece of evidence or of its very existence, which at most he could have suspected.

  Reference(s)

  ILOAT Judgment(s): 2229, 3295, 3640, 4343
  

  Keywords:

  disclosure of evidence; due process;
  

  Consideration 8

  Extract:

  [T]he Joint Disciplinary Committee’s opinion [...] shows that, when establishing the existence of particular facts and assessing the seriousness of the misconduct with which the complainant was charged, the Committee relied to a large extent on video footage of the incident [...] taken by a closed-circuit camera installed at the security post. The Committee used that footage to assess the complainant’s behaviour for almost two minutes before the unfortunate shot was fired, during which, according to the Committee, he stood by while his colleague carelessly handled the weapon that he had just given him. In the first place, this contradicted the account that the complainant gave in memoranda addressed to the Organization’s senior management and during his hearing and, in the second place, showed that he had failed to appreciate the danger of the situation.
  However, it is clear from the details contained in the Committee’s opinion that the video footage was watched by only two of the three members of the Committee, who did so [...] between the Committee’s meetings. The Tribunal has already ruled in a similar case that such a practice is irregular in its very principle. Making clear that each member of a collegiate body has an individual responsibility to be fully engaged in the fact-finding process in the case before it, which involves the assessment of the evidence of those facts in terms of its admissibility, reliability, accuracy, relevance and weight, the Tribunal held that the whole panel of such a body is required to consider that evidence and that this responsibility cannot be delegated to one or more of its members (see Judgment 3272, consideration 13). This holding, which was applied to a joint appeals body, must also apply to a collegiate body dealing with disciplinary matters such as Interpol’s Joint Disciplinary Committee. The Tribunal sees no reason here to depart from the case law in question, which seems to it to be salutary, since it is unacceptable for a member of an administrative committee to deliberate on a case without having examined for herself or himself a piece of evidence examined by the other members – which is thereby placed, by definition, in the file of that case – especially if, as in the present case, that committee actually uses the piece of evidence in question as a foundation for its opinion. The procedure followed was therefore flawed on that account.

  Reference(s)

  ILOAT Judgment(s): 3272
  

  Keywords:

  disciplinary body; due process; evidence;
  

  
  
  

• Judgment 4613

  
  135th Session, 2023
  Energy Charter Conference
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the decision to terminate her appointment.

  Consideration 18

  Extract:

  In its case law, the Tribunal has recognised that decisions adversely affecting a staff member can constitute a hidden disciplinary sanction and if made without following due process requirements may be unlawful.
  If the organisation’s rules do provide for formal disciplinary procedures, as is the case here, then they must be followed if proven misconduct founds or partly founds a decision to dismiss. That is not to say, in a case such as the present, the Secretary-General could not have relied simply and only on the alleged failure of the complainant to give satisfactory service or to comply with her duties and obligations under the Regulations, to use the language of Regulation 13a)i). He could have. But having regard to all the circumstances, it is clear in the present case he relied, additionally, on the complainant’s misconduct, which created the obligation to follow the procedures in Rule 24.1 to ascertain whether the misconduct was proved. The organisation’s failure to do so vitiated the decision to dismiss and it must be set aside.

  Keywords:

  due process; hidden disciplinary measure; misconduct;
  

  
  
  

• Judgment 4586

  
  135th Session, 2023
  International Organization for Migration
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the decision to convert his suspension with pay into a suspension without pay pending an investigation for misconduct against him, as well as the overall length of his suspension.

  Consideration 10

  Extract:

  Rule 10.3 does not make any explicit provision for an official concerned to be heard before the decision to suspend her or him is announced. Indeed, suspension is an interim precautionary measure which, in principle, must be adopted urgently, and this will often make it impossible to invite the person concerned to express her or his opinion beforehand. Nevertheless, a person’s right to be heard must be exercised before the substantive decision is taken to impose a disciplinary sanction (see Judgments 3138, consideration 10(a), and 2365, consideration 4(a)).

  Reference(s)

  ILOAT Judgment(s): 2365, 3138
  

  Keywords:

  due process; right to be heard; suspension;
  

  
  
  

• Judgment 4579

  
  135th Session, 2023
  Global Fund to Fight AIDS, Tuberculosis and Malaria
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to discharge him.

  Consideration 3

  Extract:

  [A]ccording to the Tribunal’s case law, the verbatim record of the oral evidence gathered during disciplinary proceedings is not deemed strictly necessary. It is sufficient that the person charged in disciplinary proceedings be informed of the precise allegations made against her or him, provided with the summaries of the witnesses’ testimonies relied upon by the body in charge of the investigation, and enabled to comment on them (see Judgment 2771, consideration 18).

  Reference(s)

  ILOAT Judgment(s): 2771
  

  Keywords:

  due process; evidence; investigation; witness;
  

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