Due process (187,-666)
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Keywords: Due process
Total judgments found: 185
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Judgment 3888
124th Session, 2017
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her with immediate effect for misconduct.
Consideration 24
Extract:
The complainant objects to two deputy members participating in the disciplinary proceedings in place of two members who were not available for the rescheduled hearing date. The Tribunal notes that the complainant was notified on 3 February 2014 of the composition of the Disciplinary Committee, including of the names of the Chairman, the four members, and the four deputy members. She had five days from that notification to object to any of the members or deputy members in accordance with Article 98(5) of the Service Regulations, which provides, in relevant part, that “[w]ithin five days of the drawing of lots for forming the Disciplinary Committee, the employee concerned may make objection in respect of any of its members other than the Chairman”. As she did not object to the deputy members at that time, she was time-barred from objecting to their participation at the later date when she was informed that they would attend the hearing in place of the two unavailable members.
Keywords:
composition of the internal appeals body; disciplinary procedure; due process;
Judgment 3883
124th Session, 2017
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants contest the implementation of new salary scales as from March 2012 in Bangkok.
Consideration 20
Extract:
[A]n organisation is bound by the rules it has itself issued until it amends or repeals them (Judgment 963, consideration 5).
Reference(s)
ILOAT Judgment(s): 963
Keywords:
due process; general principle; patere legem;
Judgment 3872
124th Session, 2017
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him for misconduct.
Consideration 6
Extract:
The Tribunal’s case law requires due process to be observed in disciplinary proceedings prior to imposing a disciplinary sanction against a staff member. As to due process in the context of an investigation in such proceedings, the Tribunal stated as follows in Judgment 2771, consideration 15 [...].
Reference(s)
ILOAT Judgment(s): 2771
Keywords:
disciplinary procedure; due process;
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 18
Extract:
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 Judgment 2700, consideration 6, cited recently in Judgments 3688, 3613, 3586, 3490, 3380, 3347, 3290, 3285, 3272 and 3264, for example). The complainant is also entitled to have an opportunity to test the evidence and produce evidence to the contrary (see, for example, Judgment 2786, consideration 13).
Reference(s)
ILOAT Judgment(s): 2700, 2786
Keywords:
confidential evidence; due process; evidence;
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 11
Extract:
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 Judgment 2700, consideration 6, cited recently in Judgments 3688, 3613, 3586, 3490, 3380, 3347, 3290, 3285, 3272 and 3264, for example).
Reference(s)
ILOAT Judgment(s): 2700
Keywords:
confidential evidence; due process; evidence;
Judgment 3848
124th Session, 2017
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to renew his special short-term contract for serious misconduct.
Consideration 9
Extract:
The Director General’s unlawful imposition of a disguised disciplinary measure deprived the complainant of the requirements of due process and consultation with the Staff Association Committee that would have been open to him in an adversarial proceeding had a disciplinary measure been imposed.
Keywords:
due process; hidden disciplinary measure;
Considerations 6-7
Extract:
Although it is true that the non-renewal of a contract is not one of the disciplinary measures that the Director General may impose pursuant to Staff Regulation 10(b), it does not follow, as IOM contends, that the decision not to renew the complainant’s contract was a discretionary decision. A finding of misconduct is one that is only made in the context of a disciplinary process. For example, in contrast with an administrative determination regarding unsatisfactory service, misconduct must be proved beyond a reasonable doubt, a standard of proof that is only applicable in a disciplinary proceeding. Further, a finding of misconduct is the final step in the disciplinary process before the imposition of a disciplinary measure.
In the present case, it is not disputed that the decision not to renew the complainant’s contract was based solely on the finding of misconduct. In these circumstances, the only conclusion that can be drawn is that the non-renewal of the complainant’s contract was not an administrative discretionary decision, it was a disguised disciplinary measure and was unlawful. The case law consistently states that even if an organization’s regulations, rules and other relevant documents do not provide for formal disciplinary procedures, the disciplinary process requires that “before deciding a disciplinary sanction” the concerned staff member must be given “ample opportunity to take part in adversarial proceedings, in the course of which he is given the opportunity to express his point of view, put forward evidence and participate in the processing of the evidence submitted in support of the charges against him” (see Judgment 3682, consideration 12).
Reference(s)
ILOAT Judgment(s): 3682
Keywords:
case law; disciplinary procedure; due process; hidden disciplinary measure; misconduct;
Judgment 3846
124th Session, 2017
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant objects to the working conditions to which she was subjected during a secondment and contends that the ITU breached the rules on performance appraisals.
Consideration 6
Extract:
[T]he refusal of the Appeal Board to authorise the filing of a rejoinder by the complainant does not constitute a breach of the adversarial principle, because the [organisation]’s reply did not disclose any genuinely new facts. The Appeal Board was under no obligation to call the witnesses whom the complainant wished it to hear, since it was for that body to decide whether such a step was appropriate.
Keywords:
adversarial proceedings; due process; internal appeals body;
Judgment 3831
124th Session, 2017
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her allegations of harassment.
Consideration 29
Extract:
[T]his case illustrates the difficulties that accrue from a failure to disclose materials in a timely manner. In addition to compromising a staff member’s ability to challenge an administrative decision in the internal appeal, it also undermines the purpose of the pleadings and negatively impacts the adjudicative process before the Tribunal.
Keywords:
confidential evidence; disclosure of evidence; due process;
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 3742
123rd Session, 2017
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the direct appointment of Ms S. to the position of Director, Office of Support to Decentralization.
Consideration 16
Extract:
[T]he Appeals Committee did not provide that information to the complainant, in breach of its duty of procedural fairness. It is well established in the Tribunal’s case law that a “staff member must as a general rule have access to all evidence on which the authority bases (or intends to base) its decision against him” (see Judgment 3264, under 15). The complainant will be awarded moral damages [...].
Reference(s)
ILOAT Judgment(s): 3264
Keywords:
due process; internal appeal; moral injury;
Judgment 3732
123rd Session, 2017
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss his allegations of harassment and abuse of authority as unfounded.
Consideration 6
Extract:
[T]he complainant insisted on the production of a full unredacted copy of the Internal Auditor’s report. But, as the Tribunal said in Judgment 3640, under 20:
“[I]n order to respect the rights of defence, it is sufficient for the official to have been informed precisely of the allegations made against her or him and of the content of testimony taken in the course of the investigation, in order that she or he may effectively challenge the probative value thereof (see
Judgment 2771, under 18).”
Reference(s)
ILOAT Judgment(s): 3640
Keywords:
due process;
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 17
Extract:
[P]ursuant to Administrative Circular 87, the task of the JDC is to determine whether the facts and conclusions of IOS provide sufficient bases of proof of misconduct beyond a reasonable doubt, and, in that way safeguards a staff member’s right to due process as it provides a forum in which the staff member may defend herself or himself and test the evidence provided by IOS against the standard of proof beyond a reasonable doubt.
Keywords:
disciplinary measure; due process; evidence;
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 31
Extract:
WHO’s failure to disclose the relevant documents to the complainant in the internal appeal proceedings breached the adversarial principle or the principle of equality of arms, which constitutes a breach of due process entitling the complainant to moral damages.
Keywords:
damages; disclosure of evidence; due process; moral injury;
Judgment 3682
122nd Session, 2016
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his appointment for gross misconduct.
Consideration 16
Extract:
[T]he complainant was [...] informed of the precise allegations against him and was provided with summaries of the witnesses’ testimonies relied upon by the investigator. The complainant was given three opportunities to be heard, respond to the allegations against him and provide his version of events before a finding of gross misconduct was reached [...]. Thus, the complainant’s due process rights were respected even though he was not permitted to attend witness interviews and participate in the examination of the evidence (see, also, Judgment 3083, consideration 3).
Reference(s)
ILOAT Judgment(s): 3083
Keywords:
disciplinary measure; due process; inquiry; investigation;
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 19
Extract:
[T]he complainant has not established any adverse consequences in terms of his ability to adequately respond stemming from the amount of time allocated to respond. It is also observed that he was granted an extension of time when requested and he was able to meet all the stipulated deadlines.
Keywords:
disciplinary procedure; due process; misconduct;
Judgment 3640
122nd Session, 2016
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the disciplinary measure of his summary dismissal in the wake of a sexual harassment complaint filed against him by one of his colleagues.
Consideration 16
Extract:
[W]hile an international organization cannot rely only on an internal investigative report in taking disciplinary measure against a staff member, such a report may nevertheless serve as a basis for initiating disciplinary proceedings if the indications of misconduct that it contains justify that course (see, for example, Judgment 2365, under 5(e)). When an organisation initiates proceedings in the light of such a report, it is not obliged to repeat all the investigations recorded in the report, but must simply ensure that the person concerned is given the opportunity to reply to the findings it contains so as to respect the rights of defence (see Judgment 2773, under 9).
Reference(s)
ILOAT Judgment(s): 2365, 2773
Keywords:
disciplinary measure; due process; inquiry; investigation;
Consideration 7
Extract:
The complainant submits that [...] the Ethics Adviser failed to inform him of his right to be assisted or represented by a third person for the purpose of his defence during the preliminary assessment of the complaint. However, the defendant organisation contends, without this being contradicted by the complainant in his rejoinder, that the Ethics Adviser had explicitly drawn his attention to the provisions of item 18.2 expressly mentioning this right. The Tribunal considers that, in the instant case, this manner of proceeding satisfied the duty to inform, especially as the complainant is highly qualified and was thus plainly quite capable of understanding the content of these provisions.
Keywords:
due process; right to information;
Considerations 17-21
Extract:
[T]he complainant contends with greater cogency that he was never provided with the full content of the witness statements forming the basis of the accusations against him, nor was he informed of the witnesses’ names. It is true that the witness statements were not appended to the report drawn up at the end of the investigation and, as mentioned in a footnote in that document, the identity of the witnesses was deliberately not disclosed. [...]
[T]his strict observance of confidentiality by UNESCO might be seen as departing from the Tribunal’s established case law according to which “a staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him” and, “under normal circumstances, such evidence cannot be withheld [by this authority] on the grounds of confidentiality” (see Judgment 2229, under 3(b)), to which Judgment 3295, under 13, refers). [...]
[W]here disciplinary proceedings are brought against an official who has been accused of harassment, testimonies and other materials which are deemed to be confidential pursuant to provisions aimed at protecting third parties need not be forwarded to the accused official, but she or he must nevertheless be informed of the content of these documents in order to have all the information which she or he needs to defend herself or himself fully in these proceedings. As the Tribunal has already had occasion to state, in order to respect the rights of defence, it is sufficient for the official to have been informed precisely of the allegations made against her or him and of the content of testimony taken in the course of the investigation, in order that she or he may effectively challenge the probative value thereof (see Judgment 2771, under 18).
In the instant case, the investigation report contained an extremely detailed description of all the instances of unwelcome behaviour by the complainant towards the 21 women identified as victims of his conduct, and their names were given in almost all cases. The complainant was therefore plainly apprised of the content of all the testimony taken during the investigation and of the e-mails which he had not been allowed to see. Furthermore, although, as stated above, the identity of the witnesses was not revealed to him, it is obvious that most of the information recorded in the report could only have come from the 21 persons concerned themselves. The complainant was therefore given a real opportunity to dispute the various items of evidence gathered in the course of proceedings against him. Moreover, it is clear from the above-mentioned comments which he submitted to the Organization on 18 November 2011 to rebut the charges of which he had been notified, that he had in fact been able to prepare them without any particular difficulty. Indeed, he himself described these comments as “clarifications and objections to the accusations of sexual harassment against [him], based on the whole file, and in particular on the IOS investigation report”.
Reference(s)
ILOAT Judgment(s): 2229, 2771, 3295
Keywords:
adversarial proceedings; confidential evidence; disciplinary procedure; due process; evidence; harassment; inquiry; investigation; right to be heard; sexual harassment; witness;
Judgment 3617
121st Session, 2016
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision requiring her to undergo a medical examination during the investigation of her complaint of harassment and the dismissal of that complaint.
Consideration 11
Extract:
In Judgment 2552, under 3, the Tribunal pointed out that when an accusation of harassment is made, an international organisation must both 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).
Reference(s)
ILOAT Judgment(s): 1376, 2524, 2552, 2642, 3085
Keywords:
due process; harassment; investigation;
Judgment 3586
121st Session, 2016
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to extend his fixed-term appointment.
Consideration 17
Extract:
The Tribunal has consistently stated that the principle of equality of arms must be observed by ensuring that all parties in a case are provided with all of the materials an adjudicating body such as the HBA uses in an internal appeal, and that the failure to do so constitutes a breach of due process. WHO breached due process by not having provided the relevant documents to the complainant. It also breached due process by not disclosing all of the agreements and related information, which could have assisted the HBA to have made a properly informed determination whether financial constraint was a valid reason for not extending the complainant’s contract.
Keywords:
disclosure of evidence; due process;
Judgment keywords
Keywords:
complaint allowed; decision quashed; due process; duty of care; equity; fixed-term; non-renewal of contract;
Judgment 3485
120th Session, 2015
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss his harassment complaint for lack of evidence.
Consideration 10
Extract:
"There are cases in which the evidence is such that fairness and transparency require the testing of it particularly by way of questioning of witnesses. The Tribunal views this as such a case given the nature of the allegations of harassment which the complainant proffered. The complainant and the four persons whom he named as his harassers in the internal proceedings made serious allegations and counter-allegations against each other. The Tribunal has already observed that the complainant named persons who, according to him, witnessed some alleged harassing incidents. These are circumstances in which the appropriate exercise of the discretion, which Staff Rule 110.4(d) confers, required an objective determination of the facts in their overall context. This could have been done at least by the questioning of witnesses, as well as by oral or written testimony by the persons whom the complainant named as witnesses to the alleged oral harassing incidents. The failure by the Board to do this, coupled with its decision to consider only the alleged harassing incidents that occurred within the six-month period before the internal complaint was filed, violated due process. These were serious breaches which require the impugned decision that adopted the recommendation to be set aside."
Keywords:
due process;
Judgment keywords
Keywords:
complaint allowed; decision quashed; due process; harassment; lack of evidence;
Judgment 3481
120th Session, 2015
Technical Centre for Agricultural and Rural Cooperation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his contract with immediate effect during his trial period.
Judgment keywords
Keywords:
complaint allowed; decision quashed; due process; probationary period; termination of employment;
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