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Adversarial proceedings (183, 184,-666)
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Keywords: Adversarial proceedings
Total judgments found: 90
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Judgment 4900
138th Session, 2024
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges, in his first complaint, the partial rejection of his harassment complaint before investigation and, in his fourth complaint, the rejection of his harassment complaint after investigation.
Considerations 35, 43-44
Extract:
[T]he Investigating Subpanel did not disclose to the complainant in any manner the content of the testimony given by Ms F., the only person interviewed during the investigation apart from the complainant and Mr T.S., which prevented the complainant from commenting on that testimony if necessary.
In his complaint before the Tribunal, the complainant submits that this constitutes a breach of the adversarial principle contrary to the Tribunal’s case law, in particular to what the Tribunal recalled in Judgment 3065, considerations 7 and 8 [...]
As is evident from the above considerations, the Tribunal dismissed the reasoning followed in this case by both the Director-General in her decision and the JAAB in its opinion, according to which the adversarial principle did not apply at the investigation stage of a harassment procedure and that there was no need to disclose interview notes to the staff member concerned at that stage given that the rules applicable within the Organization did not so require.
It follows from the foregoing that, owing to that procedural flaw and as the Tribunal has already found, for example, in [...] Judgments 4781 and 4739 in similar situations to that of the present case, the Director-General’s impugned decision of 21 October 2021 as well as the previous decision of 16 November 2020 on which it is based must also be set aside [...].
Reference(s)
ILOAT Judgment(s): 3065, 4739, 4781
Keywords:
adversarial proceedings; harassment; inquiry; right to be heard;
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 4832
138th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose on her the disciplinary sanction of demotion by two grades.
Considerations 27-29 and 36
Extract:
Firm and constant precedent of the Tribunal has it that, before adopting a disciplinary measure, an international organization must give the staff member concerned the opportunity to defend herself or himself in adversarial proceedings (see, for example, Judgment 3875, consideration 3).
This principle is particularly important during the investigative stage of disciplinary proceedings as the Tribunal recalled it in the following terms in Judgment 4011, consideration 9:
“The basic applicable principles regarding the right to due process at the investigative stage of disciplinary proceedings were stated by the Tribunal as follows in Judgment 2771, consideration 15:
‘The general requirement with respect to due process in relation to an investigation – that being the function performed by the Investigation Panel in this case – is as set out in Judgment 2475, namely, that the ‘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’. At least that is so where no procedure is prescribed. Where, as here, there is a prescribed procedure, that procedure must be observed. Additionally, it is necessary that there be a fair investigation, in the sense described in Judgment 2475 and that there be an opportunity to answer the evidence and the charges.’”
Of course, due process must also be observed at all other stages of disciplinary proceedings. Accordingly, the following was stated in Judgment 2786, consideration 13:
“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).”
(See also Judgment 4343, consideration 13.)
The addition of another layer of investigation in the disciplinary process, not contemplated by the internal rules of the organization, which may have, as it did, set aside the findings of the advisory body provided for in these rules, coupled with the absence of sharing with the complainant of the new evidence gathered during this process before a final decision on the disciplinary measure imposed was reached, amounted to gross procedural irregularities that violated the complainant’s right of defence and entitlement to due process.
[…]
Established precedent in the Tribunal’s case law has it that a staff member’s right to due process entails that the organization has an obligation to prove the misconduct complained of beyond reasonable doubt. This serves a purpose peculiar to the law of the international civil service and involves the recognition that often disciplinary proceedings can have severe consequences for the staff member concerned. In this regard, a staff member is to be given the benefit of the doubt (see, for example, Judgments 4697, consideration 12, and 4491, consideration 19). In this respect, in Judgment 4047, consideration 6, the Tribunal recalled that it is equally well settled that it will not engage in a determination as to whether the burden of proof has been met, instead, it will review the evidence to determine whether a finding of guilt beyond a reasonable doubt could properly have been made by the primary trier of fact (see also Judgments 4764, consideration 13, 4697, consideration 22, and 4364, consideration 10).
Reference(s)
ILOAT Judgment(s): 2475, 2496, 2771, 2786, 3875, 4011, 4047, 4343, 4364, 4491, 4697, 4764
Keywords:
adversarial proceedings; disciplinary procedure; due process in disciplinary procedure; right to be heard;
Judgment 4820
138th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to dismiss his moral harassment complaints, and claims compensation for the injury which he considers he has suffered.
Consideration 8
Extract:
The Tribunal has consistently held that the question as to whether harassment occurred must be determined in the light of a careful examination of all the objective circumstances surrounding the acts complained of (see, in particular, Judgment 4471, consideration 18) and that an allegation of harassment must be borne out by specific facts, the burden of proof being on the person who pleads it, but there is no need to prove that the accused person acted with intent (see, for example, Judgments 4344, consideration 3, 3871, consideration 12, and 3692, consideration 18). When a specific procedure is prescribed by the organisation concerned, it must be followed and the rules must be applied correctly. The Tribunal has also held that the investigation must be objective, rigorous and thorough, in that it must be conducted in a manner designed to ascertain all relevant facts without compromising the good name of the person implicated and to give that person the opportunity to test the evidence put against her or him and to answer the charges made (see, in particular, Judgments 4663, considerations 10 to 13, 4253, consideration 3, 3314, consideration 14, and 2771, consideration 15). It is, however, well settled that a staff member alleging harassment does not need to demonstrate, nor does the person or body evaluating the claim, that the facts establish beyond reasonable doubt that harassment occurred (see, in this connection, Judgments 4663, consideration 12, and 4289, consideration 10). The main factor in the recognition of harassment is the perception that the person concerned may reasonably and objectively have of acts or remarks liable to demean or humiliate her or him (see Judgments 4663, consideration 13, and 4541, consideration 8).
The Tribunal recalls, furthermore, that it is not its role to reweigh the evidence before an investigative body which, as the primary trier of facts, has had the benefit of actually seeing and hearing many of the persons involved, and of assessing the reliability of what they have said (see, in this respect, Judgments 4291, consideration 12, and 3593, consideration 12). Accordingly, the Tribunal will only interfere in the case of manifest error (see, in particular, Judgments 4344, consideration 8, 4091, consideration 17, and 3597, consideration 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;
Judgment keywords
Keywords:
absence of final decision; adversarial proceedings; complaint allowed; direct appeal to tribunal; harassment; internal remedies exhausted; investigation report; motivation of final decision; procedural flaw; reasonable time; right to information;
Considerations 15-17
Extract:
The Tribunal notes, however, that the complainant also submits that the review of the merits of his complaint is tainted by various legal flaws at the first stage of the procedure followed in that regard.
Among the various flaws alleged by the complainant, there is one which also appears substantial in the Tribunal’s view.
As is clear from the above, it is established, as he claims in his written submissions, that the complainant, although he addressed a specific request to the investigators on 28 October 2019, even before the alleged harasser and the witnesses were heard and before the investigators drew up their report, did not have knowledge of the statement made to them by Mr P.H., nor indeed of the witness statements gathered by them, or at least of their content, even in anonymized form, to be able to challenge these before the investigators drew up their report and the Director General made his original decision. This is clearly contrary to the Tribunal’s case law whereby, by virtue of the adversarial principle, the complainant in a harassment complaint must be informed, even before the end of the investigation, of the content of statements made by the persons accused and any testimony gathered as part of the investigation, in order to challenge them if necessary (see, in this respect, Judgment 4781, consideration 9, and the case law cited therein).
It follows that the review of the merits of the first complaint filed by the complainant is itself tainted by at least one substantial flaw which also renders unlawful the decision taken by the Director General on 27 March 2020.
Reference(s)
ILOAT Judgment(s): 4781
Keywords:
adversarial proceedings; harassment; inquiry; right to be heard;
Judgment 4794
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2016.
Consideration 9
Extract:
As for the complainant’s contention that the objection procedure before the Appraisals Committee set out in Circular No. 366 does not offer the same safeguards as the internal appeal procedure before the Appeals Committee, the complainant has not put forward any arguments showing the objection procedure to be flawed. The Tribunal recalls that respect for the adversarial principle and the right to be heard requires that the official concerned be afforded the opportunity to comment on all relevant issues relating to the contested decision (see, for example, [...] Judgment 4637, consideration 12, and Judgments 4408, consideration 4, and 2598, consideration 6).
Reference(s)
ILOAT Judgment(s): 2598, 4408, 4637
Keywords:
adversarial proceedings; rating; right to be heard;
Judgment 4781
137th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject her complaint of harassment and abuse of authority.
Consideration 3
Extract:
According to the Tribunal’s case law, respect for the adversarial principle and the right to be heard in the internal appeal procedure requires that the official concerned be afforded the opportunity to comment on all relevant issues relating to the contested decision (see, for example, Judgments 4697, consideration 11, 4662, consideration 11, 4408, consideration 4, and 2598, consideration 6). Accordingly, that official must have the opportunity, insofar as is compatible with the rules of receivability and procedure to which she or he is subject, to freely develop the arguments in support of her or his appeal.
[...]
A provision that gives an appeal body the ability to waive the time limits that normally apply confers on that body discretionary power to be used according to the circumstances of each case. However, in the event of a dispute on the matter, it is for the Tribunal to ensure that the appeal body has not exercised that power improperly (see, for example, Judgment 3267, considerations 3 and 4).
In the present case, the Tribunal considers that, given the very particular situation in which the complainant found herself at the material time, the Appeal Board was indeed presented with exceptional circumstances within the meaning of the aforementioned subparagraph (d), which warranted permission being given to the complainant to finalise her appeal outside the time limit, and that the Board was therefore acting improperly in refusing to give her that opportunity, attempting to justify this position by a reference to “normal practice and procedures”, from which it should therefore have departed.
Reference(s)
ILOAT Judgment(s): 2598, 3267, 4408, 4662, 4697
Keywords:
adversarial proceedings; exception; internal appeal; right to be heard; time limit;
Consideration 9
Extract:
According to the Tribunal’s case law, an accusation of harassment made by an official requires an international organisation to investigate the matter ensuring that due process is observed, for the protection of both the person(s) accused and the accuser (see, for example, Judgments 3617, consideration 11, 3065, consideration 10, 2973, consideration 16, and 2552, consideration 3).
As a result, in the event of an accusation of harassment, the adversarial principle requires, in particular, that the accuser be kept informed of the content of statements made by the person(s) accused and any testimony gathered as part of the investigation, in order to challenge them if necessary (see Judgments 4110, consideration 4, 3617, consideration 12, and 3065, considerations 7 and 8).
In the present case, it is not apparent from the file that the complainant was informed during the course of the investigation, as is required by this case law, of the content of the observations made by the supervisors who were the subject of her complaint or the statements of the witnesses heard by the investigator. On the contrary, all the evidence appears to confirm the complainant’s assertion, which is not expressly disputed by the organisation in its submissions, that the information in question was not provided to her. In that regard, the Tribunal notes in particular that the sections of the report of 17 September 2019 that deal with the methodology of the investigation and the detailed examination of the complainant’s various allegations indicate that she was indeed heard at the start of the investigation but was not subsequently invited to comment on the reactions of her supervisors when they were questioned by the investigator, nor on the statements from the various witnesses heard by the investigator.
It follows from these findings that the investigation in question was not conducted in compliance with the adversarial principle.
Reference(s)
ILOAT Judgment(s): 2552, 2973, 3065, 3617, 4110
Keywords:
adversarial proceedings; harassment; inquiry; right to be heard;
Judgment 4745
137th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to discharge him after due notice.
Consideration 3
Extract:
[T]he Tribunal holds that the [Office of the Inspector General]’s preliminary assessment is not strictly part of the disciplinary proceedings (see, in this connection, Judgment 3944, consideration 4), and Instruction IN/275 does not provide for its disclosure. Therefore, its non-disclosure does not vitiate the disciplinary process. In any case, a complainant is entitled to receive the preliminary assessment, if she or he requests it (see Judgment 4659, consideration 4). In the present case, the complainant did not request the disclosure of the OIG’s preliminary assessment either in his request for review or in his internal appeal. He raised this issue for the first time before the Tribunal and the Tribunal is satisfied that, since the Organization has disclosed it in its submissions before it, the complainant has had ample opportunity to comment on it.
Regarding [the Office of Legal Affairs’] recommendation on disciplinary measures, the Tribunal notes that Instruction IN/275 contains no provision requiring the disclosure of this recommendation to the subject of the disciplinary proceedings. Nevertheless, pursuant to paragraph 20 of Instruction IN/275, [the Office of Legal Affairs’] recommendation is a mandatory step in the disciplinary proceedings and, as such, it is plainly foundational to the disciplinary decision taken at the end of those proceedings.
[…]
[T]he Tribunal is satisfied that the disciplinary proceedings were conducted in compliance with the applicable internal rules […], and consistent with the due process and the adversarial principles (see, for example, Judgments 4011, consideration 9, 3872, consideration 6, and 2771, consideration 15).
Reference(s)
ILOAT Judgment(s): 2771, 3872, 3944, 4011, 4659
Keywords:
adversarial proceedings; disciplinary procedure; inquiry; investigation;
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 4705
136th Session, 2023
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant filed an application for review of Judgment 4274.
Consideration 14
Extract:
[I]t cannot be considered that this action constituted, in the present case, a breach of the adversarial principle, since the requests made by the Tribunal to the Organization sought only the communication of purely factual objective information and the provision of a copy of a legal text and could not, by their nature, give rise to any dispute or meaningful discussion. The proceedings relating to the case were therefore not affected by any flaws.
Keywords:
adversarial proceedings;
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 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 5
Extract:
The Tribunal notes that the decision to dismiss the complainant for serious misconduct, taken by the Secretary General on 24 December 2018 and confirmed by the impugned decision, states that the disciplinary measure imposed was based on several acts of misconduct, one of which was expressly presented as particularly serious, that is the complainant’s withholding of lists of foreign terrorists.
However, the Tribunal observes that, as the complainant submits, the latter act of misconduct was not included in the confidential memorandum of 26 March 2018 notifying the complainant of the charges against him, even though it had a clear impact in the assessment of the seriousness of the disciplinary penalty to be ordered. In fact, it is apparent from the evidence that the complainant was only officially informed of this new charge on the actual day of his hearing before the Joint Disciplinary Committee, at which he was directly invited to present his comments on the matter.
More generally, the Tribunal finds that, as the complainant contends, due process was clearly breached by the fact that he was unable to prepare his defence before the Joint Disciplinary Committee effectively, if necessary with the assistance of his counsel, and that, contrary to what had been promised to him on various occasions during the proceedings by the Chairman of the Committee, he was unable to participate actively in the processing of the evidence by criticising the evidence gathered by the Organization and putting forward his own (see, in that regard, Judgments 4011, consideration 9, 3295, consideration 11, and 1661, consideration 3).
Reference(s)
ILOAT Judgment(s): 1661, 3295, 4011
Keywords:
adversarial proceedings; disciplinary measure; disciplinary procedure;
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 4637
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2014.
Consideration 12
Extract:
The complainant [...] submits that the objection procedure before the Appraisals Committee set out in Circular No. 366 does not include the same safeguards as the internal appeal procedure before the Appeals Committee. However, the complainant does not put forward any arguments showing the objection procedure to be flawed. That the procedure before the Appraisals Committee is a written procedure, unless otherwise decided, does not breach his right to be heard. The Tribunal points out that respect for the adversarial principle and the right to be heard requires that the official concerned be afforded the opportunity to comment on all relevant issues relating to the contested decision (see Judgments 4408, consideration 4, and 2598, consideration 6), but there is no general principle requiring her or him to be given an opportunity to present oral submissions (see Judgment 4398, consideration 4). Furthermore, the complainant had the opportunity to submit his observations at several points during the conciliation procedure and in the objections he submitted to the Appraisals Committee.
Reference(s)
ILOAT Judgment(s): 2598, 4398, 4408
Keywords:
adversarial proceedings; rating; right to be heard;
Judgment 4564
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for the 2008-2009 exercise.
Consideration 11
Extract:
[T]he complainant complains, [...] in respect of the documents appended to the surrejoinder, that the Organisation produced them at a stage in the proceedings when it was no longer possible for him to respond to them. However, while it is certainly regrettable that the Organisation acted in this manner when it would clearly have been possible for it to submit those documents when it filed its reply, the adversarial nature of the proceedings before the Tribunal was nonetheless respected, since the complainant was specifically authorised to present additional submissions in order to be able to make his observations thereon.
Keywords:
adversarial proceedings; further material; surrejoinder;
Judgment 4408
132nd Session, 2021
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant disputes the lawfulness and outcome of a competition procedure in which she participated.
Consideration 4
Extract:
The Tribunal points out that respect for the adversarial principle and the right to be heard in the internal appeal procedure requires that the official concerned be afforded the opportunity to comment on all relevant issues relating to the contested decision and, in particular, on all the organisation’s arguments (see Judgment 2598, consideration 6).
In this case, the Tribunal notes that, while the members of the Appeal Board met with the acting Chief of the Human Resources Management Department on 21 July 2017, it was only so that they could understand the ITU’s recruitment procedure. The meeting was thus merely an investigative measure, the purpose of which was to enable the Board to obtain information on the recruitment of officials in general, and not an interview relating specifically to the competition procedure at issue. Therefore, contrary to what the complainant submits, it was not a hearing where she was required to be present or where the content of the discussion had to be disclosed. Consequently, the plea regarding a breach of the adversarial principle and the right to be heard in the internal appeal procedure must be dismissed.
Reference(s)
ILOAT Judgment(s): 2598
Keywords:
adversarial proceedings; internal appeal; internal appeals body;
Judgment 4310
130th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to apply the sanction of summary dismissal to him.
Consideration 10
Extract:
[T]he ILO argues that the adversarial principle was duly observed, having regard to the procedure as a whole. It submits that the complainant must have been aware of the content of the investigation report of January 2015 and the allegations made against him, as one of the investigators had explained to him that a report would be compiled on the basis of the interview he had just held with him. During that interview, the complainant was given ample opportunity to respond to the allegations made against him. Furthermore, it submits that the complainant was given the opportunity to provide additional information when he was invited to submit his observations on the proposal for a sanction, which he did. The ILO hence concludes that the complainant exercised his right to be heard on several occasions during the procedure and, in any case, before the final decision to impose a sanction was taken.
However, the fact that the complainant was interviewed during an investigation into certain events and had the opportunity to answer questions relating to those events does not, as the Organization suggests, imply that he was aware of the content of the investigation report subsequently drawn up on the basis of that interview, or of the allegations ultimately upheld by the IAO and the reasons why they were upheld.
Keywords:
adversarial proceedings; due process in disciplinary procedure; procedural rights during investigation;
Judgment 4111
127th Session, 2019
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former official of the ILO, alleges that he was subjected to harassment and that the investigation into his allegations of harassment was flawed.
Consideration 4
Extract:
[S]ince some of the statements gathered by the investigator were neither recorded nor summarized as such in the investigation report or the annexes thereto, the complainant was unable to respond to them in the comments that he was invited to submit to HRD concerning the report. Nor was he able to verify whether the investigator, in her report, had correctly interpreted the statements of which no minutes were taken. According to the Tribunal’s case law, 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, consideration 8, and 3617, consideration 12). This did not occur in this case with regard to the unrecorded statements.
The Tribunal therefore considers that, in these circumstances, the adversarial principle was disregarded. This plea is well founded.
Reference(s)
ILOAT Judgment(s): 3065, 3617
Keywords:
adversarial proceedings; due process; duty to inform; evidence; procedural flaw; report; right to be heard; testimony;
Consideration 3
Extract:
The parties do not dispute that the complainant had requested that a number of witnesses be heard, including his former supervisor [...], which was refused. [...] Any administrative decision, even when the authority exercises discretionary power, must be based on valid grounds. In this case, the refusal, without valid grounds, to hear witnesses with regard to the complainant’s allegations constitutes a breach of due process.
Keywords:
adversarial proceedings; breach; due process; harassment; inquiry; investigation; right to be heard;
Judgment 4110
127th Session, 2019
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former official of the ILO, alleges that he was subjected to harassment and that the investigation into his allegations of harassment was flawed.
Consideration 4
Extract:
[S]ince some of the statements gathered by the investigator were neither recorded nor summarized as such in the investigation report or the annexes thereto, the complainant was unable to respond to them in the comments that he was invited to submit to HRD concerning the report. Nor was he able to verify whether the investigator, in her report, had correctly interpreted the statements of which no minutes were taken. According to the Tribunal’s case law, 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, consideration 8, and 3617, consideration 12). This did not occur in this case with regard to the unrecorded statements.
The Tribunal therefore considers that, in these circumstances, the adversarial principle was disregarded.
Reference(s)
ILOAT Judgment(s): 3065, 3617
Keywords:
adversarial proceedings; due process; duty to inform; evidence; inquiry; investigation; right to be heard; testimony;
Consideration 3
Extract:
The parties do not dispute that the complainant had requested that the colleagues who had also filed a harassment grievance be heard as witnesses, which was refused. [...] In the present case, the refusal, without valid grounds, to hear witnesses with regard to the complainant’s allegations constitutes a breach of due process.
Keywords:
adversarial proceedings; due process; evidence; harassment; inquiry; investigation; right to be heard; testimony; witness;
Judgment 4109
127th Session, 2019
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former official of the ILO, alleges that she was subjected to harassment and that the investigation into her allegations of harassment was flawed.
Consideration 3
Extract:
The parties do not dispute that the complainant had requested that the colleagues who had also filed a harassment grievance be heard as witnesses, which was refused. [...] In this case, the refusal, without valid grounds, to hear witnesses with regard to the complainant’s allegations constitutes a breach of due process.
Keywords:
adversarial proceedings; breach; due process; harassment; inquiry; investigation; right to be heard;
Consideration 4
Extract:
[S]ince some of the statements gathered by the investigator were neither recorded nor summarized as such in the investigation report or the annexes thereto, the complainant was unable to respond to them in the comments that she was invited to submit to HRD concerning the report. Nor was she able to verify whether the investigator, in her report, had correctly interpreted the statements of which no minutes were taken. According to the Tribunal’s case law, 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, consideration 8, and 3617, consideration 12). This did not occur in this case with regard to the unrecorded statements.
The Tribunal therefore considers that, in these circumstances, the adversarial principle was disregarded.
Reference(s)
ILOAT Judgment(s): 3065, 3617
Keywords:
adversarial proceedings; due process; duty to inform; evidence; procedural flaw; report; right to be heard; testimony;
Judgment 4108
127th Session, 2019
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former official of the ILO, alleges that she was subjected to harassment and that the investigation into her allegations of harassment was flawed.
Consideration 3
Extract:
The parties do not dispute that the complainant had requested that the colleagues who had also filed a harassment grievance be heard as witnesses, which was refused. [...] In this case, the refusal, without valid grounds, to hear witnesses with regard to the complainant’s allegations constitutes a breach of due process.
Keywords:
adversarial proceedings; due process; harassment; inquiry; investigation; testimony;
Consideration 4
Extract:
[S]ince some of the statements gathered by the investigator were neither recorded nor summarized as such in the investigation report or the annexes thereto, the complainant was unable to respond to them in the comments that she was invited to submit to HRD concerning the report. Nor was she able to verify whether the investigator, in her report, had correctly interpreted the statements of which no minutes were taken. According to the Tribunal’s case law, 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, consideration 8, and 3617, consideration 12). This did not occur in this case with regard to the unrecorded statements.
The Tribunal therefore considers that, in these circumstances, the adversarial principle was disregarded.
Reference(s)
ILOAT Judgment(s): 3065, 3617
Keywords:
adversarial proceedings; due process; duty to inform; evidence; inquiry; investigation; procedural flaw; right to be heard; testimony;
Judgment 4101
127th Session, 2019
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who alleges that he was subjected to moral harassment, challenges the refusal to extend his special leave without pay and to grant him certain accommodations with regard to his working arrangements.
Consideration 16
Extract:
[T]he Director of the Centre was not obliged to refer the matter to a Commission of Inquiry. Paragraph 22 of Circular No. 13/2009 expressly provides that the Director may close the file “if the accusations of the alleged victim are insufficiently well founded”. In that case, her only obligation was to respond point by point to the complainant’s allegations. Considering the nature of the allegations and the answers given, the Director was not required to provide any further justification to the complainant (see Judgment 3149, consideration 17). The sole purpose of the preliminary assessment of such a complaint is to determine whether there are grounds for opening an investigation (see Judgment 3640, consideration 5). In the absence of a contrary provision, the adversarial principle did not need to be applied at this preliminary stage of the procedure for opening a harassment investigation.
Reference(s)
ILOAT Judgment(s): 3149, 3640
Keywords:
adversarial proceedings; harassment; inquiry; investigation; motivation; motivation of final decision;
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