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Burden of proof (148,-666)

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Keywords: Burden of proof
Total judgments found: 151

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  • Judgment 4171


    128th Session, 2019
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decisions to dismiss her internal complaints of moral harassment.

    Consideration 7

    Extract:

    It is firmly established in the case law that the person alleging harassment bears the burden of proving the allegation (see Judgments 2745, consideration 20, 3347, consideration 8, 3692, consideration 18, and 3871, consideration 12).

    Reference(s)

    ILOAT Judgment(s): 2745, 3347, 3692, 3871

    Keywords:

    burden of proof; harassment;



  • Judgment 4157


    128th Session, 2019
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the amount of compensation awarded for the moral injury she suffered because her evaluation for 2013 was irregular and contests the partial modification thereof.

    Consideration 7

    Extract:

    With regard to damages, the complainant bears the burden of proof and she or he must provide evidence of the injury suffered, of the alleged unlawful act, and of the causal link between the unlawful act and the injury (see Judgments 3778, consideration 4, 2471, consideration 5, and 1942, consideration 6).
    The mere fact that a decision was initially flawed does not suffice to warrant awarding damages for moral injury. In the present case, the flaw was corrected on the recommendation of the Appeal Board. To be entitled to moral damages, an official must show that she or he has suffered more severe injury than that which an improper decision ordinarily causes (see Judgment 1380, consideration 11).

    Reference(s)

    ILOAT Judgment(s): 1380, 1942, 2471, 3778

    Keywords:

    burden of proof; moral injury;



  • Judgment 4156


    128th Session, 2019
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the amount of compensation awarded for the moral injury she suffered because her evaluation for 2012 was irregular.

    Consideration 5

    Extract:

    With regard to damages, the complainant bears the burden of proof and she or he must provide evidence of the injury suffered, of the alleged unlawful act, and of the causal link between the unlawful act and the injury (see Judgments 3778, consideration 4, 2471, consideration 5, and 1942, consideration 6).
    The mere fact that a decision was initially flawed does not suffice to warrant awarding damages for moral injury. In this case, the flaw was corrected on the recommendation of the Appeal Board. To be entitled to moral damages, an official must have suffered more severe injury than that which an improper decision ordinarily causes (see Judgment 1380, consideration 11).

    Reference(s)

    ILOAT Judgment(s): 1380, 1942, 2471, 3778

    Keywords:

    burden of proof; moral injury;



  • Judgment 4147


    128th Session, 2019
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decision not to retain his candidature for a post.

    Consideration 9

    Extract:

    In keeping with the consistent case law of the Tribunal, the complainant bears the burden of demonstrating that there was a serious defect in the selection process which had an impact on the consideration of his candidature (see Judgment 4023, consideration 2).

    Reference(s)

    ILOAT Judgment(s): 4023

    Keywords:

    burden of proof; selection procedure;



  • Judgment 4146


    128th Session, 2019
    European Southern Observatory
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decisions not to grant him a contract of indefinite duration and not to extend his fixed-term contract beyond nine years of service.

    Consideration 10

    Extract:

    The Tribunal recalled, in Judgment 3861, under 9, that the principle of good faith and the concomitant duty of care require international organisations to treat their staff with due consideration in order to avoid causing them undue injury, and that an employer must consequently inform officials in advance of any action that may imperil their rights or harm their rightful interests. The Tribunal has also observed that in order for there to be misuse of authority, it must be established that the decision rested on considerations extraneous to the organisation’s interests and that the staff member alleging abuse of authority bears the burden of establishing the improper purpose for which the authority was exercised (see, for example, Judgment 3193, under 9).

    Reference(s)

    ILOAT Judgment(s): 3193, 3861

    Keywords:

    burden of proof; good faith; misuse of authority;



  • Judgment 4099


    127th Session, 2019
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to abolish her position.

    Consideration 11

    Extract:

    The complainant raises numerous grievances against WHO, claiming that she was a victim of collusion between certain officials, unfavourable bias, misuse of authority, discrimination and reprisals.
    However, as the Tribunal has stated on many occasions, allegations of this kind can only be accepted if there is sufficient evidence to substantiate them (see, for example, Judgments 1775, consideration 7, 2116, consideration 4(a), 2885, consideration 12, 3380, consideration 9, 3543, consideration 20, or 3914, consideration 7).

    Reference(s)

    ILOAT Judgment(s): 1775, 2116, 2885, 3380, 3543, 3914

    Keywords:

    burden of proof; misuse of authority;



  • Judgment 4097


    127th Session, 2019
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decisions to end her participation in the reassignment process and to terminate her fixed-term appointment further to the abolition of her post.

    Consideration 14

    Extract:

    The complainant bears the burden of proof in establishing bias or personal prejudice (see, for example, Judgment 3753, consideration 13).

    Reference(s)

    ILOAT Judgment(s): 3753

    Keywords:

    bias; burden of proof; personal prejudice;

    Consideration 17

    Extract:

    [T]he complainant bears the evidentiary burden of establishing material damage (see, for example, Judgment 3778, consideration 4)[.]

    Reference(s)

    ILOAT Judgment(s): 3778

    Keywords:

    burden of proof; material damages;



  • Judgment 4081


    127th Session, 2019
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision of the Director General not to allow him to carry out an assignment outside the Organisation.

    Consideration 19

    Extract:

    The Tribunal recalls its case law according to which “[t]here will indeed be misuse of authority where an administration acts for reasons that are extraneous to the organisation’s best interests and seeks some objective other than those which the authority vested in it is intended to serve” (see Judgment 1129, consideration 8). Moreover, “misuse of authority may not be presumed and the burden of proof is on the party that pleads it” (see Judgment 3939, consideration 10).

    Reference(s)

    ILOAT Judgment(s): 1129, 3939

    Keywords:

    burden of proof; misuse of authority; organisation's interest;



  • Judgment 4067


    127th Session, 2019
    Organisation for the Prohibition of Chemical Weapons
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decision not to extend his contract.

    Consideration 11

    Extract:

    As is well established, bad faith or misuse of authority must be proved and is never presumed, and the party alleging bad faith or misuse of authority must prove it (see, for example, Judgments 2800, consideration 21, and 3939, consideration 10).

    Reference(s)

    ILOAT Judgment(s): 2800, 3939

    Keywords:

    bad faith; burden of proof; misuse of authority;



  • Judgment 4051


    126th Session, 2018
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss him for misconduct.

    Consideration 5

    Extract:

    Consistent precedent has it that disciplinary decisions are within the discretionary authority of the executive head of an international organization and are subject to only limited review. In Judgment 3297, consideration 8, the Tribunal stated that it will interfere only if the decision is tainted by a procedural or substantive flaw. Additionally, the Tribunal will not interfere with the fact findings of an investigative body unless there is manifest error (see, for example, Judgment 3872, consideration 3). In disciplinary matters, the burden of proof lies with the employer, which must demonstrate that the complainant did indeed engage in the conduct of which he was accused (see, for example, Judgments 3297, consideration 8, and 3875, consideration 8).

    Reference(s)

    ILOAT Judgment(s): 3297, 3872, 3875

    Keywords:

    burden of proof; disciplinary measure; discretion; judicial review;



  • Judgment 4047


    126th Session, 2018
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to impose on her with immediate effect the disciplinary measure of dismissal for serious misconduct.

    Considerations 6, 9 and 13

    Extract:

    Overall, the case law of the Tribunal is clear and consistent. It was recently referred to in Judgment 3863, consideration 8 (see, also, Judgment 3882, consideration 14, as another recent example), in which the Tribunal said:
    “[A]ccording to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14). It is equally well settled that the ‘Tribunal will not engage in a determination as to whether the burden of proof has been met, instead, the Tribunal 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 Judgment 2699, consideration 9).”
    It is legally irrelevant, for the purposes of the Tribunal’s judicial determination of the complaint, that, as the EPO points out in the reply, the same formulation is used in the English common law to establish the standard of proof in criminal proceedings.[...]
    The test [in question] is to be applied by the decision-maker who has to decide whether there has been misconduct and the appropriate sanction. Usually that is the executive head of an organisation or her or his delegate. However it is also a test to be applied by bodies such as a disciplinary committee, though whether it does in any given case will ultimately depend on the role such a body has under the organisation’s rules. Under Article 102 of the Service Regulations for permanent employees of the Office, the Disciplinary Committee is obliged to deliver a reasoned opinion on thedisciplinary measure appropriate to the facts complained of and transmit the opinion to, in this case, the President. This could only be done if the Disciplinary Committee concluded that the staff member had, on the facts, engaged in misconduct warranting a disciplinary measure. Plainly enough, the Disciplinary Committee must be satisfied that the evidence establishes beyond reasonable doubt that the misconduct occurred. There would be no utility in the Disciplinary Committee applying some other standard before reporting to the President.[...]
    In some circumstances, it may be that if one of a number of sets of charges was assessed applying the appropriate standard of proof and a conclusion of guilt reached, the imposition of a particular disciplinary sanction might be justified by reference to the proof of that set of charges beyond a reasonable doubt notwithstanding the failure to apply the appropriate standard in relation to the other sets of charges.

    Reference(s)

    ILOAT Judgment(s): 2699, 3649, 3863, 3882

    Keywords:

    burden of proof; disciplinary procedure; standard of proof;



  • Judgment 4034


    126th Session, 2018
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant claims that she was subjected to harassment.

    Consideration 16

    Extract:

    According to the Tribunal’s case law, “an allegation of harassment must be borne out by specific facts, the burden of proof being on the person who pleads it, and [...] an accumulation of events over time may be cited to support an allegation of harassment” (see Judgment 3347, under 8).

    Reference(s)

    ILOAT Judgment(s): 3347

    Keywords:

    burden of proof; harassment;



  • Judgment 4010


    126th Session, 2018
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges his performance appraisals for 2012 and the decisions to renew his fixed-term appointment for a period of six months rather than one year and, subsequently, not to renew it beyond its expiry.

    Consideration 9

    Extract:

    The complainant bears the burden of establishing bias and has failed to do so (see, for example, Judgment 3753, consideration 13).

    Reference(s)

    ILOAT Judgment(s): 3753

    Keywords:

    bias; burden of proof;



  • Judgment 3996


    126th Session, 2018
    Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to investigate her claim of harassment, the decision to permanently transfer her and the decision to offer her an extension of appointment in her new position.

    Consideration 4B

    Extract:

    [T]he complainant bears the burden of proving malice, bad faith or misuse of authority (see Judgment 3743, under 12, and the judgments cited therein).

    Reference(s)

    ILOAT Judgment(s): 3743

    Keywords:

    bad faith; burden of proof; misuse of authority;



  • Judgment 3969


    125th Session, 2018
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the EPO’s decision to impose upon her the disciplinary measure of downgrading.

    Consideration 10

    Extract:

    The overarching legal principles in a case such as the present have recently been discussed by the Tribunal in Judgment 3862, consideration 20. The Tribunal observed:
    “[A]ccording to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14). It is equally well settled that the ’Tribunal will not engage in a determination as to whether the burden of proof has been met, instead, the Tribunal 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 Judgment 2699, consideration 9).”

    Reference(s)

    ILOAT Judgment(s): 2699, 3649, 3862

    Keywords:

    burden of proof; disciplinary procedure;



  • Judgment 3964


    125th Session, 2018
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decision to impose on him the disciplinary measure of dismissal for serious misconduct.

    Consideration 9

    Extract:

    The overarching legal principles in a case such as the present have recently been discussed by the Tribunal in Judgment 3862, consideration 20. The Tribunal observed: “the executive head of an international organisation is not bound to follow the recommendation of any internal appeal body nor bound to adopt the reasoning of that body. However an executive head who departs from a recommendation of such a body must state the reasons for disregarding it and must motivate the decision actually reached. In addition, according to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14).

    Reference(s)

    ILOAT Judgment(s): 3649, 3862

    Keywords:

    burden of proof; disciplinary measure; duty to substantiate decision; final decision; misconduct; standard of proof;



  • Judgment 3939


    125th Session, 2018
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to extend his appointment beyond the statutory retirement age.

    Consideration 10

    Extract:

    The complainant submits that the impugned decision, which was taken at a time when the relationship between the ISAU and the Administration of UNESCO was fraught, is tainted with abuse of authority in that it stemmed from a wish to harm the interests of the Association and the members of its Executive.
    However, as the Tribunal has repeatedly stated, misuse of authority may not be presumed and the burden of proof is on the party that pleads it (see, for example, Judgments 2116, under 4(a), 2885, under 12, or 3543, under 20). While some documents in the file show that there was a certain amount of tension between the ISAU and the Organization’s services, they are not sufficient to establish that the decision to deny the complainant’s request was based on reasons connected with that tension.

    Reference(s)

    ILOAT Judgment(s): 2116, 2885, 3543

    Keywords:

    burden of proof; misuse of authority;



  • Judgment 3929


    125th Session, 2018
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decisions to abolish her post and to terminate her appointment while she was on sick leave.

    Consideration 12

    Extract:

    According to the Tribunal’s case law: “[w]hether the post was abolished for financial reasons is a question of fact. Those facts were within the knowledge of [the organization] and it must show that when it advanced financial reasons as a ground for the abolition of the complainant’s post this was genuine. It has not done so. In the absence of that evidence, it is determined that the complainant’s post was unlawfully abolished and the claim on this ground is well founded” (see Judgment 3688, under 18). In the Tribunal’s view, the UPU has not presented sufficient evidence to support its assertion that the abolition of posts was for urgent financial reasons.

    Reference(s)

    ILOAT Judgment(s): 3688

    Keywords:

    abolition of post; budgetary reasons; burden of proof;



  • Judgment 3928


    125th Session, 2018
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decisions to abolish his post and to terminate his appointment while he was on sick leave.

    Consideration 13

    Extract:

    According to the Tribunal’s case law: “[w]hether the post was abolished for financial reasons is a question of fact. Those facts were within the knowledge of [the organization] and it must show that when it advanced financial reasons as a ground for the abolition of the complainant’s post this was genuine. It has not done so. In the absence of that evidence, it is determined that the complainant’s post was unlawfully abolished and the claim on this ground is well founded” (see Judgment 3688, under 18). In the Tribunal’s view, the UPU has not presented sufficient evidence to support its assertion that the abolition of posts was for urgent financial reasons.

    Reference(s)

    ILOAT Judgment(s): 3688

    Keywords:

    abolition of post; budgetary reasons; burden of proof;



  • Judgment 3927


    125th Session, 2018
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to suspend her without pay for three months for misconduct.

    Consideration 12

    Extract:

    The complainant asserts that the Director General was biased against her and that his decision to suspend her was vitiated by malice against her for her role as a staff representative. These allegations are unfounded. She has not provided any persuasive evidence to substantiate them, whereas the consistent case law of the Tribunal requires that such allegations be proved, since bias and bad faith cannot be presumed (see Judgments 3886, consideration 8, and 3738, consideration 9).

    Reference(s)

    ILOAT Judgment(s): 3738, 3886

    Keywords:

    bad faith; bias; burden of proof;

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Last updated: 12.08.2019 ^ top