Disclosure of evidence (151,-666)

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• Judgment 4866

  
  138th Session, 2024
  World Health Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision not to select her for the post of Senior Adviser, Human Rights and Law, following a competitive recruitment process.

  Considerations 9-10

  Extract:

  The GBA [Global Board of Appeal] had, at the complainant’s request, ordered UNAIDS to disclose additional documents and information in the internal appeals procedure. It did not, however, grant the complainant’s request to disclose to her the text of agenda item 1 in the Note for the Record on the MRC meeting. Given the Administration’s reluctance to disclose that item to the complainant, the GBA asked the Administration to disclose the document to it (the GBA). The Administration did so, however asking the GBA not to disclose it to the complainant because it was not related to the selection for the subject position and was confidential. Having reviewed the document, the GBA decided that it was “not related at all to the selection [for the contested post]” and decided not to disclose it to the complainant. She submits that the GBA was wrong and requests the Tribunal to order the disclosure of the document to her.
  The Tribunal has consistently stated that a staff member must, as a general rule, have access to all evidence on which an authority bases (or intends to base) its decision against her or him and that under normal circumstances such evidence cannot be withheld on grounds of confidentiality unless there is some special case in which a higher interest stands in the way of the disclosure of certain documents. The GBA’s decision not to disclose the text of agenda item 1 in the Note for the Record on the MRC meeting to the complainant was justified having regard to the GBA’s conclusion that it did not relate at all to the non-selection of the complainant and was not relied upon by it in assessing the merits of the complainant’s case. Accordingly, the complainant’s submission that the GBA’s decision not to order the disclosure of the subject document to her was flawed is unfounded.

  Keywords:

  disclosure of evidence; internal appeals body;
  

  
  
  

• 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:

  On the specific question of the disclosure of investigation reports, the Tribunal has distinguished between:
  (i) cases concerning an administrative decision notified to a staff member which is based on an investigation report; and
  (ii) cases concerning earlier requests for disclosure – that is, requests made shortly after the completion of the report and before the adoption of a decision.
  In the first situation, an organization is ordinarily bound to disclose the investigation report together with the decision on the harassment complaint, or at least shortly after, where requested by the concerned party (see Judgments 4743, consideration 11, 4739, considerations 10 and 12, and 4547, consideration 10). On the contrary, in the second situation, unless it is otherwise established in the staff rules and regulations, an organization is not bound to disclose the investigation report before the decision is adopted (see Judgment 3831, consideration 11). The complainant’s reliance on Judgment 4217, consideration 4, is misconceived, as in that case the request for disclosure of the investigation report into a harassment complaint was submitted after – and not before – the adoption of the decision, as in the present case.
  The Tribunal is aware that its case law has occasionally stated that the alleged victim of harassment must be provided with the investigation report before the issuance of the decision on the harassment complaint (see Judgment 3347, considerations 19 to 21). It may be doubted that this judgment reflects a consistent line of authority both, before and after it was given. However, and in any event, this principle can only be applied on a case-by-case basis, where the specific circumstances of the case so demand. It is not the case here, considering that the alleged author of sexual harassment had retired on 23 February 2018, well before the complainant’s request for disclosure of the investigation report. Thus, there was no urgent need, on the part of the complainant, to obtain the investigation report in advance, for the purposes of her harassment complaint, whilst further purposes pursued by the complainant (to use the report as a piece of evidence in her three other pending complaints) are immaterial and outside the scope of the present complaint.

  Reference(s)

  ILOAT Judgment(s): 3347, 3831, 4217, 4547, 4739, 4743
  

  Keywords:

  disclosure of evidence; harassment; investigation report;
  

  Judgment keywords

  Keywords:

  complaint dismissed; disclosure of evidence; harassment; investigation report;
  

  
  
  

• Judgment 4849

  
  138th Session, 2024
  World Intellectual Property Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the decision not to convert his fixed-term appointment into a continuing or permanent appointment.

  Consideration 11

  Extract:

  Cases can arise where an inference can be drawn that an alleged practice does exist, largely because of the refusal or failure of the organisation to provide documents requested by a complainant intended to prove the existence of that practice. One example, relied on by the complainant, was Judgment 3415, particularly considerations 6 to 9. In the present case, the complainant recounts his unsuccessful attempts to obtain, during the processes internal to the organisation, documentation intended to prove the existence of the practice. However, what he has failed to do in these proceedings before the Tribunal is exercise, if necessary, his ability under the Tribunal’s Rules, specifically under Article 9, paragraph 6, to secure documents from WIPO which would prove, in an evidentiary sense, the existence of the practice he asserts. The inference drawn in Judgment 3415 was substantially based on the refusal of the defendant organisation to produce the discovery documents requested by the complaint in the proceedings before the Tribunal. In that matter, the Tribunal made it clear that the defendant organisation should have, in the face of the discovery request, produced the documents. In the present case, the absence of a request or, ultimately if necessary, procuring an order under Article 9, paragraph 6, militates against drawing an inference that the asserted practice existed.

  Reference(s)

  ILOAT Judgment(s): 3415
  

  Keywords:

  burden of proof; disclosure of evidence; evidence; extension of contract; permanent appointment; practice; renewal of contrat;
  

  
  
  

• 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.

  Considerations 9-10

  Extract:

  As regards the complainant’s allegation of a breach of due process resulting from the non-disclosure of LEG’s legal analysis, mentioned in consideration 2 […], it is the Tribunal’s well-settled case law that a staff member must, as a general rule, have access to all the evidence on which an authority bases (or intends to base) a decision that adversely affects her or him (see Judgments 4663, consideration 6, 4471, consideration 14, and 4217, consideration 4). Under normal circumstances, such evidence cannot be withheld on grounds of confidentiality unless there is some special case in which a higher interest stands in the way of the disclosure of certain documents. But such disclosure may not be refused merely in order to strengthen the position of the Administration or one of its officers (see, for example, Judgments 3755, consideration 10, 3688, consideration 29, and the case law cited therein).
  […] LEG’s legal analysis was not a mere legal advice to the Director General, but an important document that was foundational to the 6 July 2020 decision, consistent with Section 4.2 of IN/275, (see, for example, Judgment 4745, consideration 3). The Tribunal accepts that, ordinarily, communications between an organisation and its legal advisers should be considered as privileged information, not subject to disclosure, by analogy to the communications between the parties and their counsels. However, it cannot be so where, as in the present case, these communications are conceived by the applicable rules as a formal step in an administrative process (see IN/275, in particular paragraphs 13, 14, 23, 49 and 58). In accordance with the Tribunal’s case law cited in consideration 9 above, it was incumbent upon IOM to disclose LEG’s legal analysis to the complainant, when she requested it during the internal appeal proceedings, and to the JARB for its informed opinion. This was essential to ensure that the complainant had a fair opportunity to understand the basis for the decision affecting her and that the JARB was able to fulfil its role. The Tribunal finds that IOM was wrong not to disclose LEG’s legal analysis to the complainant and the JARB. By failing to do so, IOM violated the complainant’s right to due process. This flaw radically vitiated the impugned decision, which will be set aside on this basis, without it being necessary to address the complainant’s other pleas.

  Reference(s)

  ILOAT Judgment(s): 3688, 3755, 4217, 4471, 4663, 4745
  

  Keywords:

  disclosure of evidence;
  

  Judgment keywords

  Keywords:

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

  
  
  

• 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.

  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 4776

  
  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 close his harassment complaint after a preliminary review.

  Consideration 11

  Extract:

  At least in this respect the preliminary review transmogrified into a full investigation. In these circumstances the complainant was entitled to be provided with a copy of the preliminary review report, as he requested on 3 December 2019 after having been informed on 20 November 2019 that the Inspector General ad interim had decided to close his harassment complaint. Consistent with Judgment 4471, he was entitled to review the report and, in particular, what was said in the report about the results of interviews by the external examiner with others and the conclusions reached.

  Reference(s)

  ILOAT Judgment(s): 4471
  

  Keywords:

  disclosure of evidence; investigation report;
  

  
  
  

• Judgment 4756

  
  137th Session, 2024
  International Atomic Energy Agency
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision not to conduct an investigation into his allegation of breach of confidentiality and to deny his request for compensation.

  Judgment keywords

  Keywords:

  complaint dismissed; confidentiality; disclosure of evidence; investigation;
  

  
  
  

• Judgment 4752

  
  137th Session, 2024
  International Atomic Energy Agency
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision not to grant her a special post allowance.

  Consideration 10

  Extract:

  [I]n her rejoinder the complainant requests access to all information pertaining to previous reclassification decisions on which she relies in order to demonstrate the existence of an established practice. This request [constitutes] an impermissible fishing expedition […].

  Keywords:

  disclosure of evidence; fishing expedition;
  

  Consideration 9

  Extract:

  [A]s to the alleged non-disclosure of the desk audit’s report concerning [the] position [in question], the Tribunal holds that the [organization] lawfully withheld it on grounds of confidentiality.

  Keywords:

  confidential evidence; disclosure of evidence;
  

  
  
  

• Judgment 4743

  
  137th Session, 2024
  European Molecular Biology Laboratory
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to close a complaint of harassment he had filed and two related matters.

  Consideration 11

  Extract:

  Inasmuch as the Director General relied upon the investigative report in making the decision to close the complainant’s harassment complaint, a copy of that report, albeit redacted to the extent necessary to maintain the confidentiality of some aspects of the investigation linked in particular to protecting the interests of third parties, should have been provided to the complainant. This should have been done at least during the internal appeals procedure so as not to unlawfully deprive him of the possibility of usefully challenging the findings of the investigation.

  Keywords:

  disclosure of evidence; investigation report;
  

  
  
  

• 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 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;
  

  
  
  

• Judgment 4709

  
  136th Session, 2023
  International Labour Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the refusal to recognise her illness as attributable to official duty.

  Consideration 5

  Extract:

  [T]he complainant takes issue with the fact that she was not provided with the Medical Adviser’s opinion on her compensation claim before that opinion was submitted to the Compensation Committee, which did not allow her to obtain any comments that her treating physicians may have wished to make on it. She regards this as a breach of the adversarial principle. However, the Tribunal considers that the opinion, drawn up for the Committee by one of its members to serve as a basis for its deliberations, is by its nature an internal working document which, in the absence of provisions requiring it to be disclosed to the parties, need not be communicated to the staff member concerned. Thus, while the complainant was entitled to have access to the Medical Adviser’s opinion afterwards – it being noted that this right was observed, as the submissions show that the document in question was sent to her on 21 January 2020 at her request – she has no grounds to submit that she should have received a copy of it before the Committee drew up its recommendations.

  Keywords:

  adversarial proceedings; disclosure of evidence;
  

  
  
  

• Judgment 4707

  
  136th Session, 2023
  European Organization for Nuclear Research
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainants contest the modifications brought to the subsistence allowance.

  Consideration 8

  Extract:

  The Tribunal’s case law clearly favours the provision of documents to complainants which underpin a decision adversely affecting them (see, for example, Judgment 4412, consideration 14), and asserted confidentiality is ordinarily no barrier to their production. However, in the present case, the difficulty with the argument of the complainant is that in his pleas he does not identify when and in what terms he made the request. In the absence of these details, it is simply not possible to conclude positively that the refusal of CERN to provide him with a copy violated his due process rights. Accordingly, this claim is unfounded and should be rejected.

  Reference(s)

  ILOAT Judgment(s): 4412
  

  Keywords:

  disclosure of evidence;
  

  
  
  

• 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.

  Consideration 3

  Extract:

  With regard to the complainant’s request for disclosure of the full desk audit report for her post, she herself acknowledges in her submissions that the Organization has now acceded to her requests in this respect. Therefore, since the alleged flaw has been remedied through the provision of the relevant documents to the complainant in the proceedings before the Tribunal, the complaint has become moot on this point.

  Keywords:

  claim moot; disclosure of evidence;
  

  
  
  

• Judgment 4663

  
  136th Session, 2023
  International Criminal Police Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the refusal to acknowledge the harassment that she alleges she suffered and to provide her with the full inquiry report drawn up following her internal complaint against a colleague.

  Considerations 6-7

  Extract:

  As regards [...] the failure to disclose to the complainant the entire preliminary inquiry report, which was central to the case, before the Joint Appeals Committee delivered its opinion and the Secretary General adopted the impugned decision, it is well settled that a staff member must, as a general rule, have access to all the evidence on which an authority bases or intends to base a decision that adversely affects her or him (see Judgment 4622, consideration 12). Under normal circumstances, such evidence cannot be withheld on grounds of confidentiality (see Judgment 4587, consideration 12).
  Furthermore, the Tribunal has consistently stated that a staff member must be provided with all the materials an adjudicating body uses in an internal appeal and that the failure to do so constitutes a breach of due process (see Judgments 4412, consideration 14, 3413, consideration 11, and 3347, considerations 19, 20 and 21). In Judgment 4541, consideration 3, the Tribunal accordingly confirmed that a refusal to disclose an investigation report to a staff member in good time – even in a situation where, contrary to what happened in the present case, the report would have been provided at the same time as the organisation’s final decision – has the consequence of denying the staff member the opportunity to meaningfully challenge the findings of the investigation concerned in internal appeal proceedings conducted within the organisation.
  In Judgment 4217, consideration 4, the Tribunal emphasised the importance of disclosing an investigation report similar to the one which the complainant had requested in the present case and noted that the fact that the complainant was ultimately able to obtain a copy of the report during the proceedings before the Tribunal did not remedy the flaw tainting the internal appeal process [...].
  Lastly, in Judgment 4471, consideration 23, the Tribunal stated that the disclosure of extracts of a preliminary investigation report is generally not sufficient and an organisation is required to disclose the entire report, even if this means redacting it to the extent necessary to maintain the confidentiality of some aspects of the investigation, linked in particular to protecting the interests of third parties.
  In the present case, the Tribunal considers that, having regard in particular to the content of the witness statements taken during the preliminary inquiry, from which it is plain that their disclosure was not liable to adversely affect the interests of third parties, there was nothing to prevent the complainant from being provided in good time with the full report of that inquiry and the transcripts of interviews that were appended to it. Such disclosure was essential if the complainant’s rights were to be observed, since the Secretary General and the Joint Appeals Committee relied on those documents and the complainant should therefore have been given the opportunity to comment on them.
  The complainant requested a copy of the preliminary inquiry report of 10 October 2017 on no fewer than four occasions. The Joint Appeals Committee was aware of these requests, as was the Secretary General. During the internal appeal proceedings, however, the Organization merely quoted short excerpts from the report in its submissions, without providing the complainant with the full report. This response was incomplete and insufficient. Furthermore, although the Committee itself requested the full report and considered the report during its examination of the case, it did not inform the complainant of the full content of the report at any point. Staff Rules 10.3.2(5) and 10.3.4(3) provide that the official must have access to the documents and forms of evidence submitted to a joint committee and the official must have the opportunity to express her- or himself on the evidence used as a basis for a consultative opinion. Moreover, although Staff Rule 10.3.5(1,b) provides that a joint committee’s opinion must include a copy of the relevant documents submitted to it, the inquiry report was not appended to the opinion of the Joint Appeals Committee.
  In the impugned decision the Secretary General endorsed the Committee’s recommendations, which referred to the inquiry report, but failed to send it to the complainant yet again. The Tribunal recalls that, in that decision, the Secretary General confirmed his earlier decision of 1 December 2017, which had rejected the complainant’s request for review by referring to what must be understood as the transcripts of the witness interviews conducted by the investigators, without their having been sent to the complainant at any time.
  The Tribunal is not persuaded by the Organization’s attempt to justify the decision not to provide a copy of the report or the transcripts on the basis of the requirement that they be kept confidential. It notes that the Organization eventually provided the complete inquiry report and its annexes without redacting them at all, which shows that the Organization itself ultimately admitted that there was nothing preventing their disclosure.
  It follows from the above that the complainant’s plea in this respect is well founded. These irregularities in the internal procedure constitute a substantial defect rendering both the impugned decision and the prior decision of 1 December 2017 unlawful.
  

  Reference(s)

  ILOAT Judgment(s): 3347, 3413, 4217, 4412, 4471, 4541, 4587, 4622
  

  Keywords:

  confidentiality; disclosure of evidence; harassment; investigation report;
  

  
  
  

• Judgment 4662

  
  136th Session, 2023
  International Criminal Police Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the Secretary General’s decision to reject her application for voluntary departure and her claim for compensation for “legitimate resignation”.

  Consideration 11

  Extract:

  [W]hile it is true that the complainant received belatedly the opinion of the Workforce Mobility Committee which had given its view on her application, the submissions and documents in the file show that the Committee was mindful of the complainant’s grievances on this point and forwarded the opinion to her so it could receive her comments, which the complainant was able to submit to the Committee before it delivered its recommendation. The complainant was therefore able to comment on the relevant issues relating to the decisions that were the subject of her internal appeal and, in particular, on the Organization’s arguments (see Judgment 4408, consideration 4). The complainant’s allegations of failure to observe the adversarial principle have not been proven.

  Reference(s)

  ILOAT Judgment(s): 4408
  

  Keywords:

  adversarial proceedings; disclosure of evidence; right to be heard;
  

  
  
  

• 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;
  

  
  
  

• Judgment 4659

  
  136th Session, 2023
  International Criminal Police Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to dismiss him for serious misconduct.

  Consideration 4

  Extract:

  The Tribunal notes that it is undisputed that the preliminary inquiry report was never sent to the complainant in its entirety, even in a version redacted to the extent necessary to maintain the confidentiality of some aspects of the investigation, linked in particular to protecting the interests of third parties. It is true that, as the Organization argues, the actual disciplinary proceedings were only initiated by the notification of the Secretary General’s confidential memorandum of 26 March 2018. However, the fact remains that the preliminary inquiry report also constitutes obviously an important element of the proceedings in the present case, since the charges initially brought against the complainant were based on that report and it had been forwarded to both the Joint Disciplinary Committee and the Joint Appeals Committee, which took it into consideration in their respective opinions.
  It follows that Staff Rule 10.3.2(5), under which the official concerned “[shall] have access to all documents and forms of evidence submitted to the Joint Committees” was not complied with and there was a breach of due process as established in the Tribunal’s case law (see Judgments 4412, consideration 14, 4310, consideration 11, and 3295, consideration 13).

  Reference(s)

  ILOAT Judgment(s): 3295, 4310, 4412
  

  Keywords:

  adversarial proceedings; confidentiality; disciplinary measure; disciplinary procedure; disclosure of evidence; investigation report;
  

  
  
  

• Judgment 4640

  
  135th Session, 2023
  European Patent Organisation
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges a series of management acts regarding his administrative status.

  Consideration 1

  Extract:

  The complainant requests the Tribunal to order the production of his personal file. The request is rejected as the file is unnecessary for the determination of the issues raised in this complaint.

  Keywords:

  disclosure of evidence; personal file;
  

  
  
  

• Judgment 4622

  
  135th Session, 2023
  International Labour Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to terminate her appointment for reasons of health.

  Consideration 12

  Extract:

  Under the Tribunal’s settled case law, 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 adversely affects her or him (see, for example, Judgments 3688, consideration 29, 3295, consideration 13, or 2700, consideration 6). In the present case, the complainant ought therefore to have been provided with the report in question in sufficient time to allow her to challenge its conclusions before the decision on her situation was taken, as there was clearly no legitimate reason preventing its disclosure to her.

  Reference(s)

  ILOAT Judgment(s): 2700, 3295, 3688
  

  Keywords:

  disclosure of evidence;
  

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