Evidence (144, 145, 146, 147, 149, 150, 151, 152, 153, 154, 155, 156, 157,-666)
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Keywords: Evidence
Total judgments found: 236
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Judgment 4347
131st Session, 2021
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision of the Director of PAHO to impose on him the disciplinary measure of reassignment with reduction in grade.
Consideration 27
Extract:
The Tribunal, in accordance with its case law, shall not reweigh the evidence but shall limit itself to evaluating the lawfulness of the Board of Appeal’s and Director’s findings and conclusions on the evidence (see, for example, Judgments 4237, consideration 12, 4207, consideration 10, and 3964, consideration 13).
Reference(s)
ILOAT Judgment(s): 3964, 4207, 4237
Keywords:
evidence; misconduct;
Judgment 4343
131st Session, 2021
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to demote him by two grades as a disciplinary measure for harassment.
Consideration 8
Extract:
[I]t is firmly established in the case law that the question of whether or not harassment has occurred must be determined in the light of a careful examination of all the objective circumstances surrounding the events complained of by the alleged victim (see Judgment 3640, consideration 14, and the case law cited therein). Alleged instances of similar conduct involving other staff members would plainly be relevant in this respect.
Reference(s)
ILOAT Judgment(s): 3640
Keywords:
evidence; harassment;
Consideration 6
Extract:
[I]t should be recalled that the complainant bears the burden of proving that there was manifest error in the contested fact-finding. The complainant alleges that the Director General’s decision is, in effect, tainted by erroneous fact-finding by OIOS and/or the JDB. He argues that OIOS did not take into consideration his denials to the allegations or other aspects of his evidence or comments which he made during the investigation and on the draft report. However, as the Tribunal stated in Judgment 3640, consideration 23, the fact that denials were not deemed convincing does not in any way imply that they were not duly taken into consideration.
Reference(s)
ILOAT Judgment(s): 3640
Keywords:
burden of proof; evidence;
Judgment 4291
130th Session, 2020
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the dismissal of his complaint of harassment and abuse of authority.
Consideration 12
Extract:
The complainant’s submissions [...] essentially ask the Tribunal to appraise the evidence presented in the OIOS Preliminary Assessment and in the Internal Audit Investigation Report, and to rule that the Appeals Committee and the Director General have erred in their assessments of the evidence. In Judgment 3593, consideration 12, the Tribunal stated as follows:
“[I]t is not the Tribunal’s role to reweigh the evidence before an investigative body which, as the primary trier of fact, has had the benefit of actually seeing and hearing many of the persons involved, and of assessing the reliability of what they have said. For that reason such a body is entitled to considerable deference. So that where in the present case the Investigation Panel has heard evidence and made findings of fact based on its appreciation of that evidence and the correct application of the relevant rules and case law, the Tribunal will only interfere in the case of manifest error.”
(See also Judgments 4091, consideration 17, 3882, consideration 13, and 3682, consideration 8.)
Reference(s)
ILOAT Judgment(s): 3593, 3682, 3882, 4091
Keywords:
evidence; harassment; inquiry; investigation;
Judgment 4279
130th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject her internal complaint of psychological harassment.
Consideration 7
Extract:
[I]t should be recalled that it is not for the Tribunal, in view of the very nature of its role and the stage at which it intervenes in the disputes referred to it, to review all the findings of fact and assessments of evidence made by an internal investigative body which has gathered, as near as possible to the events, the information necessary to establish the truth of the matters at issue and, in particular, has heard the statements of the parties and various relevant witnesses at first hand. Under its settled case law, the Tribunal will only interfere with the findings of such a body, provided they have been made in the course of a properly-conducted procedure complying with the applicable rules of law, if they involve an obvious error of judgement (see, for example, Judgments 3593, under 12, 3682, under 8, 3831, under 28, or 3995, under 7).
Reference(s)
ILOAT Judgment(s): 3593, 3682, 3831, 3995
Keywords:
evidence; inquiry; investigation;
Judgment 4241
129th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaint challenges the decision to dismiss her complaint of harassment as unsubstantiated.
Considerations 11-12
Extract:
Although the complainant did not provide a list of witnesses in her harassment complaint, she stated therein that she had named witnesses throughout that complaint wherever relevant. She identified about twenty-four persons with reference to various allegations of harassment which she proffered. Initially, between October and November 2016, the IOS interviewed seven of those persons and then transmitted a summary of their testimony to the complainant in December 2016 for her comment. In her response, dated 13 January 2017, the complainant noted that the IOS had not interviewed her or other witnesses whom she had identified. In March 2017, the IOS called five other witnesses. It called the complainant for oral testimony in May 2017. The IOS did not call some of the persons whom the complainant had identified concerning specific allegations, the UNAIDS Chief of Staff and the UNAIDS Executive Director in particular. This was in breach of proper procedure, particularly given that the IOS has not explained why it did not hear those persons (see Judgment 4111, consideration 3).
There was also a breach of proper procedure when, notwithstanding the clear discrepancies between critical aspects of the evidence given by the complainant and the three persons whom she accused of harassment (some of which the complainant had detailed in her response of January 2017 and later in her oral testimony), the IOS did not call those persons again to clear the discrepancies (as contemplated by Article 24 of the Investigation Process) in order to determine the truth and properly establish the facts. Moreover, the IOS erred when contrary to the indication contained in paragraph 3.1.5 of the Policy, that harassment is normally prolonged and persistent, as well as the settled principle that an accumulation of events over time may be cited in support of an allegation of harassment, the IOS rejected each allegation of harassment separately without considering whether cumulatively they provided proof of harassment.
Reference(s)
ILOAT Judgment(s): 4111
Keywords:
due process; evidence; harassment; inquiry; investigation; witness;
Consideration 13
Extract:
The Tribunal has stated that it is by no means abnormal that the investigations conducted with a view to ascertaining the truth of the statements contained in a complaint should be widened to encompass other similar behaviour on the part of the alleged harasser. It noted that it is in fact often the best means of corroborating the allegations of the complainant in an area where it may be impossible to produce material evidence. It has further stated that, more generally, the question whether or not harassment has occurred must be determined in the light of a careful examination of all the objective circumstances surrounding the events complained of by the alleged victim (see, for example, Judgments 3233, consideration 6, and 3640, consideration 14). The Tribunal notes that notwithstanding that Mr F.C. had testified that he sustained treatment that was similar to that which the complainant alleged at the hands of the DXD/MER, who was then his second-level supervisor, his testimony found no place in the IOS’s analysis.
Reference(s)
ILOAT Judgment(s): 3233, 3640
Keywords:
burden of proof; evidence; flaw; harassment; inquiry; investigation;
Judgment 4237
129th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision – taken after his resignation – to find him guilty of serious misconduct, and the decision to withhold from his separation entitlements an amount corresponding to financial losses allegedly incurred by WHO as a result of his misconduct.
Consideration 12
Extract:
According to the Tribunal’s case law (see, for example, Judgments 3757, under 6, 4024, under 6, 4026, under 5, and 4091, under 17), “where an internal appeal body has heard evidence and made findings of fact, the Tribunal will only interfere if there is manifest error (see Judgment 3439, consideration 7)”. Moreover, where there is an investigation by an investigative body in disciplinary proceedings, “it is not the Tribunal’s role to reweigh the evidence collected by an investigative body the members of which, having directly met and heard the persons concerned or implicated, were able immediately to assess the reliability of their testimony. For that reason, reserve must be exercised before calling into question the findings of such a body and reviewing its assessment of the evidence. The Tribunal will interfere only in the case of manifest error (see Judgments 3682, under 8, and 3593, under 12)” (see Judgment 3757, under 6).
Reference(s)
ILOAT Judgment(s): 3439, 3593, 3682, 3757, 3757, 4024, 4026, 4091
Keywords:
disciplinary procedure; evidence; inquiry; internal appeal; investigation;
Judgment 4207
129th Session, 2020
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the Director General’s decision to endorse the conclusion of the Office of Internal Oversight Services that it was unable to make a conclusive determination on her sexual harassment claim and to reject her related request for damages.
Consideration 10
Extract:
[I]t must also be observed that it is well settled in the case law that “it is not the Tribunal’s role to reweigh the evidence before an investigative body which, as the primary trier of fact, has had the benefit of actually seeing and hearing many of the persons involved, and of assessing the reliability of what they have said. For that reason such a body is entitled to considerable deference. So that where [an investigative body] has heard evidence and made findings of fact based on its appreciation of that evidence and the correct application of the relevant rules and case law, the Tribunal will only interfere in the case of manifest error” (see Judgment 3593, consideration 12).
Reference(s)
ILOAT Judgment(s): 3593
Keywords:
deference; evidence; inquiry; investigation;
Judgment 4118
127th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the findings of the Medical Committee according to which his invalidity is not of occupational origin.
Consideration 7
Extract:
The Tribunal notes that, according to the latest correspondence submitted by the parties, the Office did ultimately provide the complainant with a copy of his medical file including, in particular, the [...] report of Dr V. However, the complainant is still not satisfied on this point, as he asserts that the file that was provided to him is incomplete and its contents unlawful. But in any case, that claim, made after the close of the written proceedings, cannot be considered by the Tribunal in the context of the present judgment.
Keywords:
closure of written proceedings; evidence;
Judgment 4115
127th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to downgrade him for serious misconduct.
Consideration 7
Extract:
Contemporaneous documents are often more reliable than subsequent oral testimony.
Keywords:
evidence; testimony;
Consideration 15
Extract:
The complainant sought moral damages by way of relief but advanced no evidence, or even argument, to support this claim.
Keywords:
evidence; moral injury;
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;
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 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 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 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 12
Extract:
As the Tribunal stated in Judgment 3872, under 2, “[c]onsistent precedent has it that decisions which are made in disciplinary cases are within the discretionary authority of the executive head of an international organization and are subject to limited review. The Tribunal will interfere only if the decision is tainted by a procedural or substantive flaw (see Judgment 3297, under 8). Moreover, where there is an investigation by an investigative body in disciplinary proceedings, the Tribunal’s role is not to reweigh the evidence collected by it, as reserve must be exercised before calling into question the findings of such a body and reviewing its assessment of the evidence. The Tribunal will interfere only in the case of manifest error (see Judgment 3757, under 6)”.
Reference(s)
ILOAT Judgment(s): 3297, 3757, 3872
Keywords:
disciplinary procedure; evidence; judicial review; manifest error;
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:
Where any internal appeal body has heard evidence and made findings of fact, the Tribunal will only interfere in the case of manifest error (see Judgment 3831, consideration 28, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 3831
Keywords:
evidence; internal appeals body; manifest error;
Judgment 4091
127th Session, 2019
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant primarily challenges the amount of compensation offered to her by the IAEA in respect of a harassment complaint.
Consideration 17
Extract:
[T]he complainant is asking the Tribunal to reweigh the evidence. As stated in Judgment 3593, under 12, the Tribunal has consistently held:
“[...] that it is not the Tribunal’s role to reweigh the evidence before an investigative body which, as the primary trier of fact, has had the benefit of actually seeing and hearing many of the persons involved, and of assessing the reliability of what they have said. For that reason such a body is entitled to considerable deference. So that where in the present case the Investigation Panel has heard evidence and made findings of fact based on its appreciation of that evidence and the correct application of the relevant rules and case law, the Tribunal will only interfere in the case of manifest error.”
(See also Judgments 3995, under 7, 3882, under 13, and 3682, under 8.)
Reference(s)
ILOAT Judgment(s): 3593, 3682, 3882, 3995
Keywords:
disciplinary procedure; evidence; inquiry; internal appeals body; investigation; judicial review; manifest error; testimony;
Judgment 4077
127th Session, 2019
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The UPU applies for interpretation and review of Judgment 3928 alleging errors of fact, inter alia, and asserts that it is impossible to give effect to the Tribunal’s order to reinstate the complainant. The complainant applies for execution of Judgment 3928.
Consideration 6
Extract:
The UPU submits that the transcripts of the April 2018 meetings of the Council of Administration annexed to the complainant’s submissions are irreceivable as they are not official transcripts. It asserts that these transcripts were made by the complainant, and that the Summary Record provided by the Secretary General of the Council of Administration, which was not prepared in transcript format, is the only official record of the meetings of the Council of Administration. The Tribunal acknowledges that the contested annexes are unofficial documents but observes that although the UPU states that these documents were not “confirmed or verified”, it does not contest specifically any part of them.
Keywords:
evidence;
Judgment 4026
126th Session, 2018
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to reclassify her post.
Consideration 5
Extract:
The Tribunal has consistently stated that it is not its role to reweigh the evidence before an internal appeal body. In addition, where an internal appeal body has heard evidence and made findings of fact, the Tribunal will only interfere if there is manifest error (see Judgment 3439, consideration 7).
Reference(s)
ILOAT Judgment(s): 3439
Keywords:
evidence; internal appeals body;
Judgment 4024
126th Session, 2018
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to reclassify her post.
Considerations 6-9
Extract:
[I]t is not the role of the Tribunal to reweigh the evidence before an internal appeal body. In addition, where an internal appeal body has heard evidence and made findings of fact, the Tribunal will only interfere if there is manifest error (see Judgment 3439, consideration 7). [...]
In the Tribunal’s view, there was sufficient evidence upon which the Joint Appeals Board could have concluded, as it did, that the reclassification process was conducted in accordance with the relevant provisions of AM.II/3. The Tribunal also notes that reasons were given for the decision not to reclassify the complainant’s post. In short, the Tribunal is not persuaded that the results of the evaluation or of the reclassification exercise involved a mistaken conclusion (see Judgment 3589, consideration 4). In the foregoing premises, the complainant was not financially disadvantaged by the decision not to reclassify her post.
Reference(s)
ILOAT Judgment(s): 3439, 3589
Keywords:
evidence; internal appeals body;
Judgment 4019
126th Session, 2018
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to grant her a promotion in the 2013 promotion exercise.
Considerations 8-9
Extract:
In response to its request that Eurocontrol forward the Promotion Board’s report on the disputed promotion exercise in order that it might examine it in camera, the Tribunal was informed that the Board had not drawn up any such reports since 2010. This practice, which is unusual to say the least, makes it impossible for the Tribunal to ascertain whether the complainant’s merits were in fact examined by the Board, as the defendant organisation alleges. However, even if this had been the case, which is extremely doubtful in light of the submissions in the file, the examination would have been distorted by the absence of any support for the promotion proposal from the complainant’s supervisors during the consultations preceding the Board’s deliberations, which was due to the above-mentioned administrative error.
This procedural flaw breached the complainant’s right to benefit from a fair and informed comparison of her merits with those of other servants who were eligible for the same grade promotion, which renders unlawful the decision taken with regard to her at the end of the promotion exercise.
Keywords:
evidence;
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