Right to reply (184,-666)
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Keywords: Right to reply
Total judgments found: 142
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Judgment 4106
127th Session, 2019
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to apply to him the sanction of discharge.
Consideration 9
Extract:
[T]he requirement spelled out in the Tribunal’s case law that “an investigation be conducted in a manner designed to ascertain all relevant facts without compromising the good name of the employee and that the employee be given an opportunity to test the evidence put against him or her and to answer the charge made” (see Judgments 2475, under 7, 2771, under 15, 3200, under 10, 3315, under 6, 3682, under 13, 3872, under 6, and 3875, under 3) was respected in the present case. At the outset, it is observed that there is no obligation to inform a staff member that an investigation into certain allegations will be undertaken (see Judgment 2605, under 11). The evidence shows that the complainant was informed at the outset of the investigation interview that the interview related to allegations of misconduct and that he was given the opportunity to weigh the evidence presented, respond to the allegations, and to provide any evidence or name any witnesses to support his responses. He was also given the opportunity to submit any further evidence or information in his defence prior to the conclusion of the investigation. There is no principle in the Tribunal’s case law which supports the complainant’s claim that he should have received detailed information about the allegations prior to the investigation interview.
Reference(s)
ILOAT Judgment(s): 2475, 2605, 2771, 3200, 3315, 3682, 3872, 3875
Keywords:
disciplinary procedure; due process; duty to inform about the investigation; inquiry; investigation; right to be heard; right to reply;
Judgment 4081
127th Session, 2019
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision of the Director General not to allow him to carry out an assignment outside the Organisation.
Consideration 5
Extract:
[A]ccording to the case law, the reasons for a decision need not be stated in the decision itself, but may be contained in other documents communicated to the staff member concerned; they may even be set forth in briefs or submissions produced for the first time before the Tribunal, provided that the complainant’s right of appeal is fully respected (see, for example, Judgments 1289, consideration 9, 1817, consideration 6, 2112, consideration 5, or 2927, consideration 7).
Reference(s)
ILOAT Judgment(s): 1289, 1817, 2112, 2927
Keywords:
duty to substantiate decision; grounds; motivation; motivation of final decision; right of appeal; right to reply;
Judgment 4050
126th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose on him the disciplinary sanction of relegation in step.
Consideration 14
Extract:
The claims of breach of due process are unfounded.
[...]
(b) The complainant claims that he should have had 15 days to respond to the new allegation of misconduct regarding the charge of breach of confidentiality, as it was not included in the Article 100 report. In a similar situation the Tribunal concluded as follows: “The Tribunal notes that the Disciplinary Committee addressed this issue explicitly in the proceedings and in its final report. The Disciplinary Committee has the prerogative to immediately address something which occurs during the proceedings, in the interest of procedural efficiency. As the complainant was given the opportunity to comment on the alleged breach of confidentiality, the principle of due process was respected. The complainant had adequate time to prepare his defence.” (See Judgment 3971, under 15.) These conclusions are applicable to the present case.
Reference(s)
ILOAT Judgment(s): 3971
Keywords:
disciplinary procedure; due process; duty to inform; right to reply;
Judgment 3911
125th Session, 2018
ITER International Fusion Energy Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his appointment for unsatisfactory performance.
Consideration 11
Extract:
In consideration 8 [of Judgment 1484], the Tribunal [...] reiterated the principle that an organization may not take action which affects a staff member’s status before she or he is heard. It stated as follows:
“Besides, according to general precepts of administrative law and the law of the international civil service an organization may not unilaterally take action that affects a staff member’s status before letting him have his say: Judgment 1082 […] affirmed that rule in 18: ‘By virtue of their contractual relationship and the trust that therefore prevails between them, an organisation owes its employee a duty to declare its intention of dismissing him and to let him plead his case.’
The same principle was set out in Judgments 1212 [...] under 2 to 4 and 1395 [...] under 6.”
Reference(s)
ILOAT Judgment(s): 1082, 1212, 1395, 1484
Keywords:
general principle; right to reply; termination of employment;
Consideration 13
Extract:
[W]hile the right to a prior written warning may be conferred by an organization’s internal rules, the Tribunal has also stated that it may arise from a general principle of law based on the organization’s duty of good faith and duty of care to its staff members.
Keywords:
general principle; right to reply; unsatisfactory service;
Judgment 3574
121st Session, 2016
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the termination of his appointment for health reasons.
Judgment keywords
Keywords:
complaint allowed; health reasons; right to reply; termination of employment; termination of employment for health reasons;
Judgment 3295
116th Session, 2014
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaint concerning a disciplinary measure was dismissed by the Tribunal on the grounds that he had not demonstrated the existence of an error warranting the cancellation of the sanction.
Consideration 11
Extract:
"The complainant also takes the position that PAHO failed to give him a warning or the opportunity to correct the situation prior to bringing disciplinary action. In Judgment 1661, under 3, the Tribunal framed an organisation’s obligations in the following terms: “Before an organisation imposes a disciplinary penalty such as dismissal it must warn the staff member and give him the opportunity not only of stating his own case but also of refuting the organisation’s: in other words, there must be due process. So he must be told of the charges and of the evidence against him. If the proceedings are to be properly adversarial, he must be free to give his own version of the facts, refute that evidence, adduce his own, take part in the discussion of it, and at least once crossquestion the expert and other witnesses. See, for example, Judgments 512 […] under 5; 907 […] under 4; 999 […] under 5; 1082 […] under 18; 1133 […] under 7; 1212 […] under 3; 1228 […] under 4; 1251 […] under 8; 1384 […] under 5, 10 and 15; 1395 […] under 6; 1484 […] under 7 and 8.”"
Reference(s)
ILOAT Judgment(s): 512, 907, 999, 1082, 1133, 1212, 1228, 1251, 1384, 1395, 1484, 1661
Keywords:
case law; disciplinary measure; disciplinary procedure; due process; inquiry; investigation; misconduct; organisation's duties; right to reply; summary dismissal; termination of employment;
Judgment 3294
116th Session, 2014
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to refuse to reclassify one of her former posts.
Judgment keywords
Keywords:
complaint dismissed; post classification; reasonable time; right to reply;
Judgment 3269
116th Session, 2014
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant alleges that she was submitted to harassment and denounces flaws in the inquiry relating to her harassment allegations.
Judgment keywords
Keywords:
burden of proof; complaint dismissed; delay; harassment; inquiry; investigation; organisation's duties; right to reply;
Judgment 3264
116th Session, 2014
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully impugns the decision not to renew her contract after an extension of her probationary period and is granted damages.
Judgment keywords
Keywords:
breach; complaint allowed; confidential evidence; decision quashed; disclosure of evidence; discretion; due process; duty to inform; extension of contract; general principle; good faith; judicial review; non-renewal of contract; organisation's duties; performance report; probationary period; procedural flaw; respect for dignity; right to reply; unsatisfactory service; work appraisal;
Judgment 3223
115th Session, 2013
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns a decision on which the Tribunal already ruled in Judgment 2881 and which is res judicata.
Consideration 6
Extract:
"[T]he Tribunal considers that, by virtue of the adversarial principle, an employer organisation may not raise an objection to an internal appeal filed by a staff member unless that person is able to express his or her views on the merits of the objection. As the [organisation] points out, Staff Rule 11.1.1, paragraph 4, makes no provision for a staff member to file a rejoinder with the Appeal Board; however, nor does it rule out this possibility, and it does not therefore preclude the submission of a rejoinder by the person concerned in accordance with the requirements of the adversarial principle. [...]
The internal appeal proceedings were [thus] tainted with a flaw which, contrary to the [organisation]’s submissions, cannot be redressed in proceedings before the Tribunal. In the particular circumstances of the case, the Tribunal will not, however, set aside the impugned decision, but it will grant the complainant compensation in the amount of 1,000 euros for the moral injury caused by this flaw."
Reference(s)
Organization rules reference: Paragraph 4 of ITU Staff Rule 11.1.1
Keywords:
adversarial proceedings; allowance; breach; compensation; discretion; general principle; iloat; internal appeal; internal appeals body; moral injury; no provision; organisation's duties; procedural flaw; procedure before the tribunal; refusal; rejoinder; reply; request by a party; res judicata; right; right to reply; staff regulations and rules;
Judgment 3162
114th Session, 2013
Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to terminate his appointment which, in his view, is flawed for breach of due process.
Consideration 22
Extract:
"An allegation of dishonesty is an allegation of unsatisfactory conduct that may result in disciplinary action. As such, it must be dealt with in accordance with the organisation’s prescribed procedures (see Judgment 1724, under 14). That was not done in this case. This failure deprived the complainant of an opportunity to defend himself against a serious allegation and reflects a serious breach of his right to due process. The breach is particularly egregious having regard to the complainant’s work and the nature of the allegations."
Reference(s)
ILOAT Judgment(s): 1724
Keywords:
breach; disciplinary measure; due process; general principle; good faith; moral injury; organisation's duties; procedural flaw; procedure before the tribunal; right to reply; written rule;
Judgment 3158
114th Session, 2013
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully challenges the lawfulness of the decision not to reimburse the pharmaceutical products prescribed by his doctor.
Consideration 4
Extract:
"[T]he complainant only became aware of the substitution of one of the members of the Internal Appeals Committee (which occurred after the hearings) when he received a copy of the Internal Appeals Committee’s opinion. For the sake of transparency and due process, the complainant should have been informed at the time of the substitution so that he could exercise his right to contest the composition. The fact that the alternate member voted in the complainant’s favour does not redeem that flaw. Moreover, the alternate member did not attend and participate in the hearing, whereas his participation could have changed or influenced the Internal Appeals Committee’s final opinion."
Keywords:
advisory body; composition of the internal appeals body; consequence; due process; duty to inform; flaw; internal appeal; internal appeals body; organisation's duties; procedural flaw; right to reply;
Judgment 3126
113th Session, 2012
European Free Trade Association
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
In the proceedings before the Advisory Board and in these proceedings, the organization has raised matters in purported justification of the complainant’s dismissal that go beyond the grounds specified in the notice of dismissal.
"This is not permissible. To allow that course would seriously infringe on a staff member’s right to be heard before a disciplinary measure is imposed."
Keywords:
advisory body; breach; difference; disciplinary measure; grounds; iloat; notice; organisation's duties; procedure before the tribunal; right to reply; termination of employment;
Judgment 3083
112th Session, 2012
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"[A]n investigation must be conducted in such a way as to ensure that there is an opportunity for the staff member concerned to test the evidence and answer the charge made. In the case of summary dismissal, the decision-maker must be satisfied to the requisite standard that misconduct has occurred as charged and, also, that the misconduct is such as to justify summary dismissal."
Keywords:
adversarial proceedings; inquiry; investigation; misconduct; right to reply; summary dismissal;
Judgment 3055
112th Session, 2012
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"[A]s a general rule, an organisation should refrain from passing on damaging information about a staff member. If the recipient of that information has a legitimate interest in knowing the truth [...] it should refrain from passing on damaging information without first giving the staff member an opportunity to challenge it and give his or her own account."
Keywords:
communication to third party; duty of care; duty of discretion; injury; organisation's duties; professional injury; rebuttal; right to reply; staff member's interest;
Judgment 2940
109th Session, 2010
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3(b)
Extract:
"In accordance with the right to due process, which calls for transparent procedures, a staff member is entitled to be apprised of all items of information material to the outcome of his or her claims. The composition of an advisory body is one such item, since the identity of its members might have a bearing on the reasoning behind and credibility of the body's recommendation or opinion. The staff member is therefore at least entitled to comment on its composition (see Judgment 2767, under 7(a))."
Reference(s)
ILOAT Judgment(s): 2767
Keywords:
advisory body; advisory opinion; composition of the internal appeals body; consequence; due process; duty to inform; effect; elements; equity; general principle; grounds; recommendation; right; right to reply; settlement out of court;
Judgment 2899
108th Session, 2010
European Free Trade Association
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 30
Extract:
"[T]he right to be heard must be respected in an especially rigorous manner in disciplinary proceedings."
Keywords:
disciplinary procedure; organisation's duties; right to reply;
Consideration 23
Extract:
"By [...] basing his decision on an essential document without having given the person concerned an opportunity to refute its content, the competent authority breached the right to be heard which every staff member possesses and his decision was thus tainted by a major procedural flaw (in this connection, see for example Judgments 69, under 2, and 1881, under 18 to 20)."
Reference(s)
ILOAT Judgment(s): 69, 1881
Keywords:
breach; confidential evidence; disclosure of evidence; official; procedural flaw; right to reply;
Judgment 2893
108th Session, 2010
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The complainant submits that in reaching its opinion the Joint Committee for Disputes did not afford him due process since he was not given an opportunity to put his case himself, or to present oral submissions through counsel, and that he was thus denied the opportunity to exercise his right to be heard.
"This line of argument is unfounded. Neither the legal provisions governing Eurocontrol's Joint Committee for Disputes nor the general principles applicable to such an appeal body require that a complainant be given an opportunity to present oral submissions in person or through a representative. As the Tribunal has already had occasion to state in Judgment 623, all that the right to a hearing requires is that the complainant should be free to put his case, either in writing or orally; the appeal body is not obliged to offer him both possibilities. As the Committee considered that it had gleaned sufficient information about the case from the parties' written submissions and documentary evidence, it was under no obligation to invite the complainant to put his case orally, or indeed to accede to any request to that effect (for similar cases, see Judgments 232, 428 and 1127). Moreover, the Tribunal notes that in this case the complainant did not indicate in his internal complaint, or subsequently announce, that he wished to present oral submissions to the Committee and that, contrary to his assertions, the Agency was under no duty to inform him expressly of the possibility of making such a request."
Reference(s)
ILOAT Judgment(s): 232, 428, 623, 1127
Keywords:
breach; condition; counsel; elements; flaw; general principle; internal appeal; internal appeals body; no provision; oral proceedings; organisation's duties; report; request by a party; right to reply;
Judgment 2786
106th Session, 2009
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
"It is not open to an international organisation to justify a decision by conducting further enquiries after the internal appeal proceedings have been concluded, much less by conducting enquiries into a charge of misconduct that was not relied upon as the basis for rejecting an internal appeal. So to do is not only to deprive a person of his/her right to be heard in answer to a charge of misconduct, including by testing the evidence against him/her, but also to render the appeal proceedings futile."
Keywords:
breach; decision; evidence; grounds; inquiry; internal appeal; investigation; organisation's duties; refusal; right to reply; serious misconduct;
Consideration 13
Extract:
"Due process requires that a staff member accused of misconduct be given an opportunity to test the evidence relied upon and, if he or she so wishes, to produce evidence to the contrary. The right to make a defence is necessarily a right to defend oneself before an adverse decision is made, whether by a disciplinary body or the deciding authority (see Judgment 2496, under 7)."
Reference(s)
ILOAT Judgment(s): 2496
Keywords:
advisory body; disciplinary procedure; disclosure of evidence; due process; right; right to reply; serious misconduct;
Judgment 2773
106th Session, 2009
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"While internal investigative reports cannot be the sole basis for disciplinary action against a staff member, they may nevertheless serve as a basis for initiating disciplinary proceedings if they yield indications of irregularities justifying this (see, in this respect, Judgment 2365, under 5(e)). When the organisation concerned initiates proceedings in the light of such reports, it is not itself obliged to repeat all the investigations recorded in these documents, but must simply ensure that the person in question is given the opportunity to reply to the findings they contain so as to respect the rights of defence."
Reference(s)
ILOAT Judgment(s): 2365
Keywords:
adversarial proceedings; disciplinary charges; disciplinary procedure; evidence; inquiry; investigation; investigation report; right to reply;
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