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Due process (187,-666)

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Keywords: Due process
Total judgments found: 151

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  • Judgment 4185


    128th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, who alleges that he was the victim of harassment, seeks redress for the injury he considers he has suffered.

    Consideration 9

    Extract:

    The complainant submits that the fact that he was not heard by the Reports Committee vitiates the impugned decision. The Tribunal notes, however, that according to its own rules of procedure, the Reports Committee is under no obligation to conduct hearings. In any event, the complainant submitted full written documentation regarding the review of his performance appraisal report. In its recommendations to the Director of the Centre, the Reports Committee noted that the complainant was invited to be interviewed, but as he was absent on leave it then asked that he submit his observations in writing. The complainant requested a later deadline for submission, but then did not submit anything within the extended deadline. This, in the Tribunal’s view, satisfied the requirement for due process.

    Keywords:

    due process; performance evaluation;



  • 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 13

    Extract:

    The disciplinary proceedings were initiated before the appraisal period concluded. In Judgment 3224 the Tribunal said at consideration 7 that an organisation cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules governing the evaluation of that performance. The decision to commence disciplinary proceedings can, for the purposes of the application of this principle, be characterised as an adverse decision. Even if the EPO believed that nothing was going to change, in terms of the complainant’s conduct, between the time the disciplinary proceedings were commenced and the conclusion of the appraisal period a little over a month later, it was nonetheless obliged to complete the assessment of the complainant’s performance in accordance with Circular No. 366 before initiating the disciplinary proceedings.

    Keywords:

    disciplinary procedure; due process; organisation's duties; patere legem; performance evaluation; unsatisfactory service; work appraisal;



  • Judgment 4111


    127th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former official of the ILO, alleges that he was subjected to harassment and that the investigation into his allegations of harassment was flawed.

    Consideration 4

    Extract:

    [S]ince some of the statements gathered by the investigator were neither recorded nor summarized as such in the investigation report or the annexes thereto, the complainant was unable to respond to them in the comments that he was invited to submit to HRD concerning the report. Nor was he able to verify whether the investigator, in her report, had correctly interpreted the statements of which no minutes were taken. According to the Tribunal’s case law, a complainant must have the opportunity to see the statements gathered in order to challenge or rectify them, if necessary by furnishing evidence (see Judgments 3065, consideration 8, and 3617, consideration 12). This did not occur in this case with regard to the unrecorded statements.
    The Tribunal therefore considers that, in these circumstances, the adversarial principle was disregarded. This plea is well founded.

    Reference(s)

    ILOAT Judgment(s): 3065, 3617

    Keywords:

    adversarial proceedings; due process; duty to inform; evidence; procedural flaw; report; right to be heard; testimony;

    Consideration 3

    Extract:

    The parties do not dispute that the complainant had requested that a number of witnesses be heard, including his former supervisor [...], which was refused. [...] Any administrative decision, even when the authority exercises discretionary power, must be based on valid grounds. In this case, the refusal, without valid grounds, to hear witnesses with regard to the complainant’s allegations constitutes a breach of due process.

    Keywords:

    adversarial proceedings; breach; due process; harassment; inquiry; right to be heard;



  • Judgment 4110


    127th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former official of the ILO, alleges that he was subjected to harassment and that the investigation into his allegations of harassment was flawed.

    Consideration 4

    Extract:

    [S]ince some of the statements gathered by the investigator were neither recorded nor summarized as such in the investigation report or the annexes thereto, the complainant was unable to respond to them in the comments that he was invited to submit to HRD concerning the report. Nor was he able to verify whether the investigator, in her report, had correctly interpreted the statements of which no minutes were taken. According to the Tribunal’s case law, a complainant must have the opportunity to see the statements gathered in order to challenge or rectify them, if necessary by furnishing evidence (see Judgments 3065, consideration 8, and 3617, consideration 12). This did not occur in this case with regard to the unrecorded statements.
    The Tribunal therefore considers that, in these circumstances, the adversarial principle was disregarded.

    Reference(s)

    ILOAT Judgment(s): 3065, 3617

    Keywords:

    adversarial proceedings; due process; duty to inform; evidence; inquiry; 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; right to be heard; testimony; witness;



  • Judgment 4109


    127th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former official of the ILO, alleges that she was subjected to harassment and that the investigation into her allegations of harassment was flawed.

    Consideration 3

    Extract:

    The parties do not dispute that the complainant had requested that the colleagues who had also filed a harassment grievance be heard as witnesses, which was refused. [...] In this case, the refusal, without valid grounds, to hear witnesses with regard to the complainant’s allegations constitutes a breach of due process.

    Keywords:

    adversarial proceedings; breach; due process; harassment; inquiry; right to be heard;

    Consideration 4

    Extract:

    [S]ince some of the statements gathered by the investigator were neither recorded nor summarized as such in the investigation report or the annexes thereto, the complainant was unable to respond to them in the comments that she was invited to submit to HRD concerning the report. Nor was she able to verify whether the investigator, in her report, had correctly interpreted the statements of which no minutes were taken. According to the Tribunal’s case law, a complainant must have the opportunity to see the statements gathered in order to challenge or rectify them, if necessary by furnishing evidence (see Judgments 3065, consideration 8, and 3617, consideration 12). This did not occur in this case with regard to the unrecorded statements.
    The Tribunal therefore considers that, in these circumstances, the adversarial principle was disregarded.

    Reference(s)

    ILOAT Judgment(s): 3065, 3617

    Keywords:

    adversarial proceedings; due process; duty to inform; evidence; procedural flaw; report; right to be heard; testimony;



  • Judgment 4108


    127th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former official of the ILO, alleges that she was subjected to harassment and that the investigation into her allegations of harassment was flawed.

    Consideration 3

    Extract:

    The parties do not dispute that the complainant had requested that the colleagues who had also filed a harassment grievance be heard as witnesses, which was refused. [...] In this case, the refusal, without valid grounds, to hear witnesses with regard to the complainant’s allegations constitutes a breach of due process.

    Keywords:

    adversarial proceedings; due process; harassment; inquiry; testimony;

    Consideration 4

    Extract:

    [S]ince some of the statements gathered by the investigator were neither recorded nor summarized as such in the investigation report or the annexes thereto, the complainant was unable to respond to them in the comments that she was invited to submit to HRD concerning the report. Nor was she able to verify whether the investigator, in her report, had correctly interpreted the statements of which no minutes were taken. According to the Tribunal’s case law, a complainant must have the opportunity to see the statements gathered in order to challenge or rectify them, if necessary by furnishing evidence (see Judgments 3065, consideration 8, and 3617, consideration 12). This did not occur in this case with regard to the unrecorded statements.
    The Tribunal therefore considers that, in these circumstances, the adversarial principle was disregarded.

    Reference(s)

    ILOAT Judgment(s): 3065, 3617

    Keywords:

    adversarial proceedings; due process; duty to inform; evidence; inquiry; 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 9

    Extract:

    [T]he requirement spelled out in the Tribunal’s case law that “an 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” (see Judgments 2475, under 7, 2771, under 15, 3200, under 10, 3315, under 6, 3682, under 13, 3872, under 6, and 3875, under 3) was respected in the present case. At the outset, it is observed that there is no obligation to inform a staff member that an investigation into certain allegations will be undertaken (see Judgment 2605, under 11). The evidence shows that the complainant was informed at the outset of the investigation interview that the interview related to allegations of misconduct and that he was given the opportunity to weigh the evidence presented, respond to the allegations, and to provide any evidence or name any witnesses to support his responses. He was also given the opportunity to submit any further evidence or information in his defence prior to the conclusion of the investigation. There is no principle in the Tribunal’s case law which supports the complainant’s claim that he should have received detailed information about the allegations prior to the investigation interview.

    Reference(s)

    ILOAT Judgment(s): 2475, 2605, 2771, 3200, 3315, 3682, 3872, 3875

    Keywords:

    disciplinary procedure; due process; duty to inform; inquiry; right to reply;



  • 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 25

    Extract:

    [T]he [organization] could not refer to the complainant’s alleged misconduct as a reason not to reinstate him as no disciplinary proceeding has occurred in that regard, so misconduct has never been proven. It is all the more grave when considering that the alleged reason for the abolition of the posts was because of financial constraints. The abolition of a post can never be based on a staff member’s conduct, as that would constitute a hidden sanction. The [organization]’s presentation before the Council of Administration constituted a breach of the duty of care and of the adversarial principle, as the complainant was not given any opportunity to defend himself and his reputation from the allegations. The UPU must respect the dignity of its staff and preserve their reputation.

    Keywords:

    abolition of post; adversarial proceedings; budgetary reasons; due process; duty of care; hidden disciplinary measure; misconduct; reinstatement;



  • Judgment 4064


    127th Session, 2019
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges a request made by the Administration of the FAO that he provide comments, while he was on certified sick leave, on a report issued by the Investigation Panel appointed to investigate allegations of harassment against him.

    Judgment keywords

    Keywords:

    due process; harassment; inquiry; sick leave;

    Considerations 8-9

    Extract:

    Based on the evidence before the Tribunal, there is nothing in the FAO rules regime and no proven practice which provide guidance on how the requirement of Part II(b)(iv)(g) of the Policy on the Prevention of Harassment is to be fulfilled where a staff member who is accused of harassment is on certified sick leave. Given the FAO’s duty under the Policy on the Prevention of Harassment to investigate harassment complaints, it is reasonable that it could ask a staff member who is on sick leave to comment upon an IP report if doing so would not exacerbate the illness which occasioned the grant of sick leave and if she or he is fit to do so.
    [...] In the Tribunal’s view, the FAO took reasonable steps to discharge its duty to accord due process to the complainant, as well as its duty of care and its duty to be fair to him, while it sought to discharge its duty to implement its Policy on the Prevention of Harassment.

    Keywords:

    due process; duty of care; harassment; health reasons; inquiry; medical fitness; sick leave;



  • Judgment 4060


    127th Session, 2019
    International Criminal Court
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, an ICC Senior Security Officer, contests the decision to temporarily withdraw his authorisation to carry a firearm.

    Consideration 18

    Extract:

    The ICC’s failure to provide the complainant with adequate reasons for the 12 June 2014 decision constitutes a breach of the complainant’s due process rights and, accordingly, the decision is unlawful. This would warrant an order setting aside the decision, however, as noted above, such an order is unnecessary as the decision is no longer in force. The complainant is nonetheless entitled to moral damages for the breach of his due process rights.

    Keywords:

    damages; due process; duty to substantiate decision; moral damages; motivation;



  • Judgment 4050


    126th Session, 2018
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to impose on him the disciplinary sanction of relegation in step.

    Consideration 14

    Extract:

    The claims of breach of due process are unfounded.
    [...] (b) The complainant claims that he should have had 15 days to respond to the new allegation of misconduct regarding the charge of breach of confidentiality, as it was not included in the Article 100 report. In a similar situation the Tribunal concluded as follows: “The Tribunal notes that the Disciplinary Committee addressed this issue explicitly in the proceedings and in its final report. The Disciplinary Committee has the prerogative to immediately address something which occurs during the proceedings, in the interest of procedural efficiency. As the complainant was given the opportunity to comment on the alleged breach of confidentiality, the principle of due process was respected. The complainant had adequate time to prepare his defence.” (See Judgment 3971, under 15.) These conclusions are applicable to the present case.

    Reference(s)

    ILOAT Judgment(s): 3971

    Keywords:

    disciplinary procedure; due process;



  • Judgment 4011


    126th Session, 2018
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss her for misconduct.

    Consideration 9

    Extract:

    The basic applicable principles regarding the right to due process at the investigative stage of disciplinary proceedings were stated by the Tribunal as follows in Judgment 2771, consideration 15:
    “The general requirement with respect to due process in relation to an investigation – that being the function performed by the Investigation Panel in this case – is as set out in Judgment 2475, namely, that the ‘investigation be conducted in a manner designed to ascertain all relevant facts without compromising the good name of the employee and that the employee be given an opportunity to test the evidence put against him or her and to answer the charge made’. At least that is so where no procedure is prescribed. Where, as here, there is a prescribed procedure, that procedure must be observed. Additionally, it is necessary that there be a fair investigation, in the sense described in Judgment 2475 and that there be an opportunity to answer the evidence and the charges.”
    However, due process must also be observed at all other stages of disciplinary proceedings. Accordingly, the following was stated in Judgment 2786, consideration 13:
    “Due process requires that a staff member accused of misconduct be given an opportunity to test the evidence relied upon and, if he or she so wishes, to produce evidence to the contrary. The right to make a defence is necessarily a right to defend oneself before an adverse decision is made, whether by a disciplinary body or the deciding authority (see Judgment 2496, under 7).”

    Reference(s)

    ILOAT Judgment(s): 2475, 2496, 2771, 2786

    Keywords:

    disciplinary procedure; due process; inquiry;



  • Judgment 4005


    126th Session, 2018
    International Criminal Court
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss her complaint of harassment.

    Consideration 6

    Extract:

    In support of her position, the complainant relies on the Tribunal’s statement that “[a] fundamental principle of the adversarial process is the right to know and have an opportunity to respond to the evidence adduced by the opposing party” (see Judgment 3216, consideration 6), and that the non-disclosure of evidence in the absence of a reason in law “constitutes a serious breach of the complainant’s right to procedural fairness” (see Judgment 3264, consideration 16). The Tribunal’s case law also relevantly states that “[a] staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against [her or] him” (see Judgment 2700, consideration 6).

    Reference(s)

    ILOAT Judgment(s): 2700, 3216, 3264

    Keywords:

    adversarial proceedings; disclosure of evidence; due process;



  • 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 18

    Extract:

    The complainant’s argument is that the decision of the President was based on evidence “not available to the complainant”. However this plea conflates evidence with the record of evidence. It is not suggested by the complainant in his pleas that he or his legal representatives did not attend the oral hearing. Accordingly, he was aware of the evidence and it was thus available to him even if, as a matter of fact, he had not been furnished with a transcript. This plea is unfounded and is rejected.

    Keywords:

    due process; evidence;



  • Judgment 3872


    124th Session, 2017
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss him for misconduct.

    Consideration 6

    Extract:

    The Tribunal’s case law requires due process to be observed in disciplinary proceedings prior to imposing a disciplinary sanction against a staff member. As to due process in the context of an investigation in such proceedings, the Tribunal stated as follows in Judgment 2771, consideration 15 [...].

    Reference(s)

    ILOAT Judgment(s): 2771

    Keywords:

    disciplinary procedure; due process;



  • Judgment 3863


    124th Session, 2017
    International Criminal Court
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the termination of his appointment on disciplinary grounds.

    Consideration 18

    Extract:

    The case law of the Tribunal establishes that, as a general rule, a staff member must have access to all evidence on which the authority bases (or intends to base) its decision against her or him. Under normal circumstances, such evidence cannot be withheld on grounds of confidentiality (see Judgment 2700, consideration 6, cited recently in Judgments 3688, 3613, 3586, 3490, 3380, 3347, 3290, 3285, 3272 and 3264, for example). The complainant is also entitled to have an opportunity to test the evidence and produce evidence to the contrary (see, for example, Judgment 2786, consideration 13).

    Reference(s)

    ILOAT Judgment(s): 2700, 2786

    Keywords:

    confidential evidence; due process; evidence;



  • Judgment 3862


    124th Session, 2017
    International Criminal Court
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the termination of her appointment on disciplinary grounds.

    Consideration 11

    Extract:

    The case law of the Tribunal establishes that, as a general rule, a staff member must have access to all evidence on which the authority bases (or intends to base) its decision against her or him. Under normal circumstances, such evidence cannot be withheld on grounds of confidentiality (see Judgment 2700, consideration 6, cited recently in Judgments 3688, 3613, 3586, 3490, 3380, 3347, 3290, 3285, 3272 and 3264, for example).

    Reference(s)

    ILOAT Judgment(s): 2700

    Keywords:

    confidential evidence; due process; evidence;



  • Judgment 3848


    124th Session, 2017
    International Organization for Migration
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to renew his special short-term contract for serious misconduct.

    Consideration 9

    Extract:

    The Director General’s unlawful imposition of a disguised disciplinary measure deprived the complainant of the requirements of due process and consultation with the Staff Association Committee that would have been open to him in an adversarial proceeding had a disciplinary measure been imposed.

    Keywords:

    due process; hidden disciplinary measure;



  • Judgment 3846


    124th Session, 2017
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant objects to the working conditions to which she was subjected during a secondment and contends that the ITU breached the rules on performance appraisals.

    Consideration 6

    Extract:

    [T]he refusal of the Appeal Board to authorise the filing of a rejoinder by the complainant does not constitute a breach of the adversarial principle, because the [organisation]’s reply did not disclose any genuinely new facts. The Appeal Board was under no obligation to call the witnesses whom the complainant wished it to hear, since it was for that body to decide whether such a step was appropriate.

    Keywords:

    adversarial proceedings; due process; internal appeals body;



  • Judgment 3757


    123rd Session, 2017
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss him summarily.

    Consideration 6

    Extract:

    The impugned decision rightly emphasises that adducing material evidence is especially difficult in cases of corruption or market manipulation where nothing is put in writing by either party and everything often takes place without the involvement of third persons who might be called as witnesses. A staff member who is accused of such dealings is certainly entitled to due process offering him every opportunity to defend his interests, and the burden of proof always falls upon the Administration. However, the latter’s investigation will not be required to culminate in the establishment of absolute proof. All that is needed is a set of precise and concurring presumptions removing any reasonable doubt that the acts in question actually took place (see Judgments 1384, under 10, 3137, under 6, and 3297, under 8).

    Reference(s)

    ILOAT Judgment(s): 1384, 3137, 3297

    Keywords:

    burden of proof; due process; evidence;

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Last updated: 12.08.2019 ^ top