Burden of proof (148,-666)
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Keywords: Burden of proof
Total judgments found: 217
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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:
abuse of power; 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:
abuse of power; 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; proportionality;
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; standard of proof in disciplinary procedure;
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 4001
126th Session, 2018
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to confirm the appointment of Ms S. to the post of Head of the Caribbean Section.
Consideration 4
Extract:
The following basic principles as stated, for example, in Judgment 3652, consideration 7, guide the Tribunal where a decision such as this is challenged:
“The Tribunal’s case law has it that a staff appointment by an international organisation is a decision that lies within the discretion of its executive head. Such a decision is subject to only limited review and may be set aside only if it was taken without authority or in breach of a rule of form or of procedure, or if it was based on a mistake of fact or of law, or if some material fact was overlooked, or if there was abuse of authority, or if a clearly wrong conclusion was drawn from the evidence (see Judgment 3537, under 10). Nevertheless, anyone who applies for a post to be filled by some process of selection is entitled to have her or his application considered in good faith and in keeping with the basic rules of fair and open competition. That is a right which every applicant must enjoy, whatever her or his hope of success may be (see, inter alia, Judgment 2163, under 1, and the case law cited therein, and Judgment 3209, under 11). It was also stated that an organisation must abide by the rules on selection and, when the process proves to be flawed, the Tribunal can quash any resulting appointment, albeit on the understanding that the organisation must ensure that the successful candidate is shielded from any injury which may result from the cancellation of her or his appointment, which she or he accepted in good faith (see, for example, Judgment 3130, under 10 and 11).”
A complainant is required to demonstrate that there was a serious defect in the selection process. The following was accordingly relevantly stated in Judgment 1827, consideration 6:
“The selection of candidates for promotion is necessarily based on merit and requires a high degree of judgment on the part of those involved in the selection process. Those who would have the Tribunal interfere must demonstrate a serious defect in it; it is not enough simply to assert that one is better qualified than the selected candidate.”
However, when an organization conducts a competition to fill a post the process must comply with the relevant rules and the case law. The following was accordingly relevantly stated in Judgment 1549, considerations 11 and 13:
“When an organisation wants to fill a post by competition it must comply with the material rules and the general precepts of the case law. [...] The purpose of competition is to let everyone who wants a post compete for it equally. So precedent demands scrupulous compliance with the rules announced beforehand: patere legem quam ipse fecisti. See Judgments 107[...], 729 [...], 1071 [...], 1077 [...], 1158 [...], 1223 [...] and 1359 [...].”
Reference(s)
ILOAT Judgment(s): 1549, 1827, 3652
Keywords:
bias; burden of proof; personal prejudice; selection procedure;
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:
abuse of power; 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; standard of proof; standard of proof in 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; standard of proof in disciplinary procedure;
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:
abuse of power; 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;
Judgment 3920
125th Session, 2018
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her fixed-term appointment pursuant to the abolition of her post.
Consideration 13
Extract:
[W]hen a post is abolished for financial reasons it is incumbent on the organisation to demonstrate that this was genuine, given that the relevant facts are within the knowledge of the organisation (see Judgment 3688, consideration 18).
Reference(s)
ILOAT Judgment(s): 3688
Keywords:
abolition of post; budgetary reasons; burden of proof;
Judgment 3914
125th Session, 2018
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to renew his project-based fixed-term contract.
Consideration 7
Extract:
The Tribunal notes that, notwithstanding that the burden to prove discrimination and bias rests with the complainant, the WTO provides evidence which shows that the contracts of other Rules Division staff members which were project-based were not renewed when they expired [...]. The WTO states that they were not renewed because, as in the case of the complainant, the projects to which the contract holders were assigned had come to an end and in a few cases contracts were extended to facilitate work on ongoing projects or for compassionate reasons.
Keywords:
burden of proof; discrimination;
Consideration 7
Extract:
[T]he burden to prove discrimination and bias rests with the complainant [...].
Keywords:
bias; burden of proof; discrimination;
Judgment 3912
125th Session, 2018
International Centre for Genetic Engineering and Biotechnology
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the classification of her post.
Consideration 13
Extract:
With regard to prejudice, the Tribunal relevantly stated the following in Judgment 1775, consideration 7:
“Although evidence of personal prejudice is often concealed and such prejudice must be inferred from surrounding circumstances, that does not relieve the complainant, who has the burden of proving his allegations, from introducing evidence of sufficient quality and weight to persuade the Tribunal. Mere suspicion and unsupported allegations are clearly not enough, the less so where, as here, the actions of the Organization which are alleged to have been tainted by personal prejudice are shown to have a verifiable objective justification.”
Reference(s)
ILOAT Judgment(s): 1775
Keywords:
bias; burden of proof; evidence; personal prejudice;
Judgment 3902
125th Session, 2018
Centre for the Development of Enterprise
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to pay him the indemnity due in the event of the closure of the CDE.
Consideration 11
Extract:
A steady line of precedent has it 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” (see Judgment 2800, under 21, cited in Judgment 3154, under 7; see also Judgment 3407, under 15).
Reference(s)
ILOAT Judgment(s): 2800, 3154, 3407
Keywords:
bad faith; burden of proof;
Judgment 3887
124th Session, 2017
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to dismiss him, for misconduct, with immediate effect and with reduction of pension entitlements.
Consideration 15
Extract:
The complainant’s assertion that there was a lack of duly established delegations of authority is unsubstantiated. The complainant has not provided any evidence showing that any official had acted ultra vires.
Keywords:
burden of proof; delegated authority;
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