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Evidence (144, 145, 146, 147, 149, 150, 151, 152, 153, 154, 155, 156, 157,-666)

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Keywords: Evidence
Total judgments found: 211

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  • Judgment 2856


    107th Session, 2009
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 11 and 13

    Extract:

    "At the outset, the complainant's grievance was in relation to his appointment, as a result of restructuring, to [a] position [...] at grade P.3. Although the complainant has advanced a number of arguments in support of his complaint, at this juncture, he holds a post at grade P.4 and throughout the material time he has retained his personal P.4 grade. [T]he central issue is whether there is merit to the complainant's contention that he should have been placed in a «genuine P.4 position»."
    "The fundamental flaw in the complainant's position is that he has not adduced any evidence that he had the specific knowledge and skills required to function in a «genuine P.4 position» within the Organization¿s new Oracle-based system. [...] As well, not only has he not adduced any evidence to show that he has the requisite knowledge and skills to work in an Oracle-based system, the evidence shows that he had difficulty performing a number of tasks attributed to his new position."

    Keywords:

    abolition of post; evidence; lack of evidence; qualifications; reassignment; reorganisation; status of complainant;



  • Judgment 2834


    107th Session, 2009
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 10

    Extract:

    "The complainant's plea that the decision not to invite him to an assessment was not based on objective and transparent criteria and was arbitrary appears to be grounded on the complainant's view that other less meritorious and less senior candidates were invited to participate in the assessment centre. Given that a key requirement identified in the vacancy note was managerial skills, in the absence of some evidence showing that the complainant possesses managerial ability or that he has the potential to be a good manager, the complainant's assertion is speculative at best."

    Keywords:

    burden of proof; candidate; competition; criteria; evidence; promotion; seniority;



  • Judgment 2800


    106th Session, 2009
    Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 21

    Extract:

    "Relations between an organisation and its staff must be governed by good faith; an organisation must treat its staff with due consideration and avoid causing them undue injury. Also, it is well established in the case law that bad faith cannot be presumed, it must be proven. Additionally, bad faith requires an element of malice, ill will, improper motive, fraud or similar dishonest purpose."

    Reference(s)

    ILOAT Judgment(s): 2116, 2293

    Keywords:

    burden of proof; evidence; good faith; organisation's duties; staff member's duties; working relations;



  • Judgment 2786


    106th Session, 2009
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 15

    Extract:

    "It is not open to an international organisation to justify a decision by conducting further enquiries after the internal appeal proceedings have been concluded, much less by conducting enquiries into a charge of misconduct that was not relied upon as the basis for rejecting an internal appeal. So to do is not only to deprive a person of his/her right to be heard in answer to a charge of misconduct, including by testing the evidence against him/her, but also to render the appeal proceedings futile."

    Keywords:

    breach; decision; evidence; grounds; inquiry; internal appeal; investigation; organisation's duties; refusal; right to reply; serious misconduct;



  • Judgment 2773


    106th Session, 2009
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 9

    Extract:

    "While internal investigative reports cannot be the sole basis for disciplinary action against a staff member, they may nevertheless serve as a basis for initiating disciplinary proceedings if they yield indications of irregularities justifying this (see, in this respect, Judgment 2365, under 5(e)). When the organisation concerned initiates proceedings in the light of such reports, it is not itself obliged to repeat all the investigations recorded in these documents, but must simply ensure that the person in question is given the opportunity to reply to the findings they contain so as to respect the rights of defence."

    Reference(s)

    ILOAT Judgment(s): 2365

    Keywords:

    adversarial proceedings; disciplinary charges; disciplinary procedure; evidence; inquiry; investigation; investigation report; right to reply;



  • Judgment 2771


    106th Session, 2009
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 17

    Extract:

    "Hearsay evidence is not necessarily inadmissible. The question is always one of its probative value."

    Keywords:

    admissibility of evidence; appraisal of evidence; evidence;

    Consideration 14

    Extract:

    "In support of his argument that he was denied due process by the [Investigation] Panel the complainant relies on Judgment 2254 where it was said that, "before deciding a disciplinary sanction, an organisation should inform the person concerned that disciplinary proceedings have been initiated and should allow him ample opportunity to take part in adversarial proceedings, in the course of which he is given the opportunity to express his point of view, put forward evidence and participate in the processing of the evidence submitted in support of the charges against him". That statement relates to the situation where disciplinary proceedings have been initiated. However, and as its name suggests, the function of the Panel was to investigate. Contrary to the arguments of the complainant, the requirement that it "assess the reliability of the source or sources of information and the evidence submitted" does not render it a judicial body. The assessment of the reliability of evidence is a function that is properly described as "judicial" only when reposed in a judicial body."

    Reference(s)

    ILOAT Judgment(s): 2254

    Keywords:

    appraisal of evidence; disciplinary procedure; evidence; evidence during investigation; inquiry; investigation; sexual harassment;

    Consideration 18

    Extract:

    "The complainant points to cases in which the Tribunal observed that the complainant had not been present when statements were taken and not given the opportunity to cross-examine witnesses (for example, Judgments 999 and 2475), to object to evidence (for example, Judgment 2468) or to have a verbatim record of the evidence (for example, Judgment 1384). These are matters that, in the cases concerned, would have ensured that the requirements of due process were satisfied. However, they are not the only means by which due process can be ensured. In the present case, the complainant was informed of the precise allegations made against him [...], and provided with the summaries of the witnesses' testimonies relied upon by the Investigation Panel, even if not verbatim records. He was able to and did point out to the Assistant Director-General and, later, the Director of the Human Resources Management Division, inconsistencies in the evidence, its apparent weaknesses and other matters that bore upon its relevance and probative value, before the finding of unsatisfactory conduct was made [...]. In this way, the complainant was able to confront and test the evidence against him, even though he was not present when statements were made and not able to cross-examine the witnesses who made them. Moreover, the complainant had and exercised a right of appeal to the Appeals Committee. There is no suggestion that he was in any way circumscribed in the way his appeal was conducted. Accordingly, the process, viewed in its entirety from the making of the subordinate's harassment complaint until the Committee reported to the Director-General, was one that satisfied the requirements of due process."

    Reference(s)

    ILOAT Judgment(s): 999, 1384, 2468, 2475

    Keywords:

    adversarial proceedings; disciplinary procedure; due process; evidence; inquiry; investigation; organisation's duties; right to reply; testimony;

    Consideration 15

    Extract:

    "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."

    Reference(s)

    ILOAT Judgment(s): 2475

    Keywords:

    adversarial proceedings; appraisal of evidence; disciplinary procedure; due process; evidence; inquiry; investigation; organisation's duties; procedure before the tribunal; respect for dignity; right to reply;

    Consideration 2

    Extract:

    The first two charges of harassment upon which the finding of unsatisfactory conduct was based related to events which, according to the subordinate, occurred during a mission which she and the complainant undertook in Latin America in November 2003. The subordinate claimed that, during the mission, the complainant began complimenting her on her clothing and physical appearance, arranged hotel reservations so that they would have rooms on the same floor, suggested on most evenings that she join him in his room for a drink and alluded most mornings to the fact that she had slept alone. She claimed that, on 16 November 2003 in San Salvador, the complainant became agitated when he did not find her in her room, arranged for hotel staff to open her room and shouted at her in the hotel lobby in front of everyone. The second event occurred, according to the subordinate, in Honduras on 18 November 2003 when the complainant embraced and kissed her in the hallway of their hotel. [...]

    Keywords:

    evidence; sexual harassment;

    Consideration 5

    Extract:

    Before dealing further with the complainant’s arguments, it is convenient to refer to the content of the Policy. The Policy defines “harassment” as meaning:
    “any improper behaviour by an FAO staff member […] that is directed at, and is offensive to, another individual and which that staff member knew or ought reasonably to have known would be unwelcome. It comprises objectionable conduct or comment made on either a one-time or continuous basis that demeans, belittles, or causes personal humiliation or embarrassment to an individual.”
    There are then set out examples of harassment, including “degrading public tirades by a supervisor or colleague”. Additionally, the definition sets out what is included in the notion of “sexual harassment”. It is unnecessary to refer to those examples as it is clear that, if the incident in the hallway of the hotel in Honduras occurred, it constitutes sexual harassment. However, the complainant challenges the finding in relation to the incident in San Salvador on the basis that the FAO held a single incident to constitute harassment, whereas the definition refers to “public tirades”. This argument must be rejected. The definition allows that harassment may consist of a single objectionable act that demeans or causes embarrassment. The alleged incidents in the hotel lobby in San Salvador and in the hallway of the hotel in Honduras satisfy that test.

    Keywords:

    evidence; sexual harassment;

    Consideration 23

    Extract:

    As is usual in relation to events of the kind alleged to have occurred in the hallway of the hotel in Honduras, the only direct evidence was that of the subordinate herself. The charge in relation to this matter depended on her credibility and that of the complainant. To some extent, the subordinate’s credibility was bolstered by evidence that she reported the incident to her husband in a telephone call the next morning. That evidence, albeit that there were no independent witnesses, was sufficient to support the finding of sexual harassment.

    Keywords:

    evidence; sexual harassment;



  • Judgment 2758


    105th Session, 2008
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    "[D]eceit consists in the manoeuvres of one party to mislead the other and obtain his or her consent. Deceit cannot be presumed; it must be proved, if necessary by means of strong, precise and concurring presumptions."

    Keywords:

    admissibility of evidence; definition; evidence; lack of consent;



  • Judgment 2745


    105th Session, 2008
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 19

    Extract:

    "It was said in Judgment 2524 that, although harassment and mobbing do not require bad faith or prejudice or other malicious intent, 'behaviour will not be characterised as harassment or mobbing if there is a reasonable explanation for the conduct in question'. Thus, it was said in Judgment 2370 that conduct that 'had a valid managerial purpose or was the result of honest mistake, or even mere inefficiency' would not constitute harassment. However and as pointed out in Judgment 2524, 'an explanation which is prima facie reasonable may be rejected if there is evidence of ill will or prejudice or if the behaviour in question is disproportionate to the matter which is said to have prompted the course taken'."

    Reference(s)

    ILOAT Judgment(s): 2370, 2524

    Keywords:

    bias; condition; conduct; consequence; definition; evidence; good faith; grounds; intention of parties; judgment of the tribunal; mistake of fact; organisation's duties; proportionality; qualifications; respect for dignity;



  • Judgment 2728


    105th Session, 2008
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 12

    Extract:

    The complainant submits that the Director-General's decision not to extend his appointment is unlawful. "There is no material to support a finding of bias or other abuse of discretion. Certainly, none is to be discerned from the fact that the complainant's former post has not yet been opened to competition."

    Keywords:

    bias; competition; contract; decision; discretion; evidence; executive head; lack of evidence; misuse of authority; non-renewal of contract;



  • Judgment 2642


    103rd Session, 2007
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 25

    Extract:

    Because various incidents were, to a large extent, not disputed, the Tribunal is able to substitute its own decision for that of the Director-General. In this regard, it is convenient to note that the Grievance Panel found that Mr A. exhibited “a pattern of behaviour” that, although not properly characterised as “clearly inappropriate or sexually harassing”, could be characterised as “a more than usually personal approach to management and to relationships in the workplace”, and said that it “did appear to some as ambiguous and open to differing interpretations”. Clearly, Mr A. had made remarks to her that could be characterised as “flirtatious”, as could the remark to her secretary, Ms Z. In that context, it was not unreasonable to take Mr A.’s remark that he would be happy to give her a five-year extension after two years “if [they got] on well” as having a sexual sub text. Moreover, it is not disputed that the complainant said something to Mr A. to indicate that she found his remarks offensive. And in this, her actions were entirely reasonable: “flirtatious” remarks made in the workplace by a male supervisor to female staff inevitably diminish their professional standing. Having made clear to Mr A. that she found his remarks offensive, he should reasonably have known that she would also find inappropriate physical contact offensive. The complainant’s claim of inappropriate physical contact, whether it be described as “stroking” or an “up-and down motion” – a distinction which is, at best, elusive – was supported by her near contemporaneous account to the Human Resources Officer who described her as exhibiting a mixture of anger and fear. Given the undisputed accounts by Ms X and Ms Y of the behaviour of Mr A., the overwhelming weight of the evidence requires a finding that the complainant was sexually harassed.

    Keywords:

    evidence; sexual harassment;



  • Judgment 2619


    103rd Session, 2007
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    "The decision to grant special leave must be made on a case-by-case basis. It is not possible to assume that, because special leave has been granted to one staff member, it must be granted to all, unless all cases are identical in fact and in law. [...] Discrimination cannot be established until it is proved that staff members in identical situations were treated differently."

    Keywords:

    breach; discretion; equal treatment; evidence; exception; official; organisation's duties; special leave;



  • Judgment 2616


    102nd Session, 2007
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 24

    Extract:

    "The failure of the [Joint Disciplinary Committee] and, in turn, the Director-General to take into account the highly relevant evidence as to the complainant's health [...] constitutes an error of law."

    Keywords:

    advisory body; disciplinary procedure; disregard of essential fact; evidence; executive head; health reasons; organisation's duties;



  • Judgment 2558


    101st Session, 2006
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5(b)

    Extract:

    The complainant accuses the Appeals Committee of having breached her defence rights by refusing to call on the Office to produce the documents she requested. "Ideally, the Appeals Committee would have given reasons for rejecting the complainant's offer of additional evidence in the form of the testimonies of seven witnesses and 15 documents that the Office was being asked to produce, or would at least have made it clear in its opinion that the evidence already produced was sufficient to lead it to an objective assessment of the relevant facts. The complainant, however, offers no convincing explanation that all these items of evidence are really relevant. The Tribunal cannot therefore consider the rejection of the proffered evidence as constituting abuse of the broad discretion that internal appeals bodies must enjoy in this area."

    Keywords:

    breach; complainant; disclosure of evidence; discretion; evidence; grounds; internal appeals body; misuse of authority; offer; oral proceedings; organisation; refusal; report; request by a party; right to reply; testimony;



  • Judgment 2524


    100th Session, 2006
    Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 26

    Extract:

    "The Joint Appeals Panel [examining a case of alleged harassment] fell into [...] error by analysing certain of the incidents upon which the complainant relied as separate or independent events without considering them in their overall context."

    Keywords:

    effect; evidence; harassment; internal appeal; internal appeals body; moral injury; organisation's duties; respect for dignity;

    Consideration 25

    Extract:

    "There were [...] fundamental errors of law in the approach of the [Joint Appeals] Panel. It proceeded on the basis that it was necessary to establish an intention to 'intimidate, insult, harass, abuse, discriminate or humiliate a colleague' and concluded that there must be 'bad faith or prejudice or other malicious intent' before that intention could be inferred. That is not correct. Harassment and mobbing do not require any such intent. However, behaviour will not be characterised as harassment or mobbing if there is a reasonable explanation for the conduct in question. (See Judgment 2370, under 17.) On the other hand, an explanation which is prima facie reasonable may be rejected if there is evidence of ill will or prejudice or if the behaviour in question is disproportionate to the matter which is said to have prompted the course taken."

    Reference(s)

    ILOAT Judgment(s): 2370

    Keywords:

    bias; criteria; evidence; good faith; harassment; moral injury; organisation's duties; respect for dignity;



  • Judgment 2522


    100th Session, 2006
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    "The Tribunal concludes that the internal appeal proceedings were not conducted with due diligence or with the care owed by an international organisation to its staff. The complainant had reason to believe that the Agency was making every effort to hamper the proceedings to prevent them from being concluded within a reasonable time. He was not informed of the final outcome of his internal appeal until nearly two months after the Director General had taken his final decision. Moreover, the latter replied to the complainant's request for review more than three months after the request was submitted, and only after an appeal had been lodged with the Joint Appeals Board. The Tribunal concludes from the above that the complainant suffered moral injury."

    Keywords:

    decision; delay; due process; evidence; internal appeal; late decision; moral injury; organisation's duties; procedure before the tribunal; reasonable time; staff member's interest; time limit;



  • Judgment 2521


    100th Session, 2006
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 12

    Extract:

    "The Tribunal has frequently pointed out that it is for the person alleging harassment to prove specific facts supporting that allegation (see Judgments 2067, 2100, 2370 and 2406). [...] As with the facts relied on to establish harassment, it is for the person making the allegation to establish that the acts or decisions in question were accompanied by some purpose or attitude which allows them to be so characterised."

    Reference(s)

    ILOAT Judgment(s): 2067, 2100, 2370, 2406

    Keywords:

    burden of proof; case law; decision; evidence; harassment; moral injury; organisation's duties; respect for dignity;

    Consideration 10

    Extract:

    In a case of moral harassment, the existence of "other complaints [...] might [...] support [...] the claim of harassment, but the absence of complaint could not be used to support the contrary proposition."

    Keywords:

    complaint; evidence; harassment; lack of evidence; moral injury; organisation's duties; respect for dignity; subsidiary;



  • Judgment 2510


    100th Session, 2006
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    "The Tribunal has consistently held that it will not order the production of documents on the speculative basis that something might be found to further the complainant's case."

    Keywords:

    disclosure of evidence; evidence; further submissions; order; procedure before the tribunal; request by a party; submissions;



  • Judgment 2507


    100th Session, 2006
    Pan American Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    "Criticism of a subordinate's performance and behaviour, even in inappropriately strong language, does not, of itself, evidence harassment or prejudice. Certainly, that is so where [...] the performance and behaviour in question are confirmed by other senior and responsible officials. That being so, and there being no other evidence to support the complainant's claims, the allegations of harassment and prejudice must be rejected."

    Keywords:

    bias; conduct; different appraisals; evidence; harassment; moral injury; organisation's duties; performance report; respect for dignity; supervisor; work appraisal;



  • Judgment 2494


    100th Session, 2006
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 4

    Extract:

    "Eurocontrol contends that Mr R.'s complaint is time-barred because it was filed more than three months after the notification of the decision rejecting his internal complaint. However, the Agency has produced no evidence of the date on which that decision was effectively notified. Failing such evidence, which it is the Agency's responsibility to provide, that complaint must be regarded as having been filed in good time."

    Keywords:

    burden of proof; complaint; date of notification; decision; disclosure of evidence; evidence; internal appeal; lack of evidence; organisation's duties; receivability of the complaint; refusal; time bar; time limit;



  • Judgment 2475


    99th Session, 2005
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 22

    Extract:

    The complainant was dismissed on the grounds of misconduct following an investigation. "The procedure adopted in this case was clearly flawed in that the complainant was denied the opportunity to question any of the persons whose statements were used against him, evidence of little probative value was relied upon and, at least to some extent, he was required to prove his innocence instead of having the matters alleged proven against him. [...] It follows that the [...] decision [...] to dismiss the complainant must be set aside. The complainant shall be reinstated [...] and shall receive all arrears of salaries and other benefits; he must account for any earnings from other employment."

    Keywords:

    adversarial proceedings; breach; burden of proof; consequence; disciplinary measure; evidence; inquiry; investigation; lack of evidence; procedural flaw; reinstatement; serious misconduct; staff member's duties; termination of employment; testimony;

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