Procedural rights during investigation (784,-666)

You searched for:
Keywords: Procedural rights during investigation
Total judgments found: 9

• Judgment 4310

  
  130th Session, 2020
  International Labour Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to apply the sanction of summary dismissal to him.

  Consideration 6

  Extract:

  Although this is not an indispensable condition for due process (see Judgments 3295, under 8, and 4106, under 9), it is preferable that the subject of an investigation should be notified of the opening of an investigation into her or his conduct and the charges against her or him before being heard, so that she or he has an opportunity to explain her or his conduct and to submit any exculpatory evidence. If this does not occur, that information must, in any event, be provided at the beginning of the hearing.
  [A]t the beginning of the interview, one of the investigators explained that it was a “follow-up” to the audit report of 2012 and to “certain things” that had come to the IAO’s attention. He then emphasised that the interview was confidential, adding that “for example, [the] report goes to the Director-General afterwards. [There’s] a committee in Geneva which is responsible for reading reports from the [Investigation] Unit, and then [makes] direct recommendations to the Director-General.” Given that the complainant had not been notified in advance and was unaware of the content of the 2012 audit report, such general statements cannot be considered sufficient to inform him of the opening of an investigation and the charges against him. The investigators failed to indicate plainly the allegations against him. They merely questioned him on the events leading to the finding of misconduct on eight counts for which the disciplinary sanction was ultimately imposed. It is true that at the end of the interview, the investigators mentioned, in a very cursory manner, that a report on the interview would be forwarded to the Director of the IAO and the Committee on Accountability, which could recommend “disciplinary action or sanctions or things like that” to the Director-General. However, that explanation had to be clearly expressed at the beginning of the interview.

  Reference(s)

  ILOAT Judgment(s): 3295, 4106
  

  Keywords:

  notification of allegations; opening of an investigation; procedural rights during investigation;
  

  Consideration 10

  Extract:

  [T]he ILO argues that the adversarial principle was duly observed, having regard to the procedure as a whole. It submits that the complainant must have been aware of the content of the investigation report of January 2015 and the allegations made against him, as one of the investigators had explained to him that a report would be compiled on the basis of the interview he had just held with him. During that interview, the complainant was given ample opportunity to respond to the allegations made against him. Furthermore, it submits that the complainant was given the opportunity to provide additional information when he was invited to submit his observations on the proposal for a sanction, which he did. The ILO hence concludes that the complainant exercised his right to be heard on several occasions during the procedure and, in any case, before the final decision to impose a sanction was taken.
  However, the fact that the complainant was interviewed during an investigation into certain events and had the opportunity to answer questions relating to those events does not, as the Organization suggests, imply that he was aware of the content of the investigation report subsequently drawn up on the basis of that interview, or of the allegations ultimately upheld by the IAO and the reasons why they were upheld.

  Keywords:

  adversarial proceedings; due process in disciplinary procedure; procedural rights during investigation;
  

  
  
  

• Judgment 4227

  
  129th Session, 2020
  Food and Agriculture Organization of the United Nations
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to dismiss him for misconduct.

  Consideration 13

  Extract:

  The fourth of the complainant’s procedural grounds is that during the investigation and disciplinary process the allegations against him shifted. While the focus of the factual foundation of the charges varied during the entire process, the substance of the charges remained constant. This is not a case analogous to that arising in Judgment 4063.

  Reference(s)

  ILOAT Judgment(s): 4063
  

  Keywords:

  notification of allegations; procedural rights during investigation;
  

  Consideration 12

  Extract:

  The third ground is that not all those who should have been interviewed were in fact interviewed. The complainant identifies five such people. The defendant organization points to the fact that he did not proffer the names of these five people when asked towards the conclusion of his interview on 17 July 2014 whether there was anyone else the investigating officers should speak to and also says, correctly, the complainant has failed to demonstrate that the decision not to interview these five people flawed, in a material way, the investigation process.

  Keywords:

  inquiry; investigation; procedural rights during investigation; witness;
  

  
  
  

• Judgment 4039

  
  126th Session, 2018
  International Labour Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant, who alleges that he is the victim of institutional harassment and discrimination, seeks redress for the injury he considers he has suffered.

  Consideration 6

  Extract:

  The sole purpose of an investigation is to establish the existence of facts that may be contested during disciplinary proceedings in which the rights of defence must be scrupulously safeguarded. The Tribunal considers that it is “clear that the rules relating to due process, in particular, which must be respected scrupulously during the actual disciplinary proceedings [...] (see, for example, Judgment 2475), do not apply during the investigation of matters brought before an internal auditing body” (see Judgment 2589, under 7). The Tribunal holds that, while it is preferable to notify the person concerned that she or he is to be the subject of an investigation, except where this would be liable to compromise the outcome of the investigation, such notification is not a requisite element of due process (see Judgment 3295, under 8).
  Once the investigation is opened, the organisation is under an obligation to provide the person concerned with an opportunity to explain her or his conduct and to present any information on her or his behalf. The Uniform Guidelines for Investigations do not, however, stipulate when the person concerned must be given this opportunity, since the aforementioned paragraph 17 of the Guidelines provides that this matter “is regulated by the rules, policies and procedures of the Organization”. In the International Labour Office there is no internal manual or practical guide setting out the procedure to be followed when conducting such interviews. Like the JAAB, the Tribunal considers that the above-mentioned opportunity should preferably be afforded before rather than during the interview. However, in this case, there is nothing to indicate that the complainant was in any way prevented from defending himself on account of the manner in which the investigation was conducted (see, in this connection, Judgment 2771, under 18).

  Reference(s)

  ILOAT Judgment(s): 2475, 2589, 2771, 3295
  

  Keywords:

  disciplinary procedure; duty to inform about the investigation; inquiry; investigation; procedural rights during investigation; right to be heard;
  

  Considerations 7-9

  Extract:

  [T]he Tribunal has consistently held that no general principle obliges an international organisation to make provision for staff members under investigation to be assisted by a staff representative when they are interviewed (see Judgment 2589, under 7). [...]
  It is true that new facts discovered during an investigation may sometimes corroborate the original allegation. In this case, however, the alleged inflation of the complainant’s overtime during the 2013 International Labour Conference has nothing to do with the allegation relating to the circumstances in which his spouse was employed. The suggestion that the excessive amount of overtime that the complainant was accused of having claimed might have been explained by the financial loss resulting from the refusal to recruit his spouse for the Conference does not in itself establish an adequate link between the two allegations.
  As this was a new allegation, the IAO should have acted in accordance with paragraphs 27 to 30 of the Uniform Guidelines for Investigations and should at least have determined whether there were legitimate grounds warranting a new investigation on that issue. There is nothing in the file to show – and the defendant organisation does not submit – that the IAO conducted a preliminary evaluation before investigating the new allegation.

  Reference(s)

  ILOAT Judgment(s): 2589
  

  Keywords:

  assistance during investigation; inquiry; investigation; procedural rights during investigation;
  

  
  
  

• 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 11

  Extract:

  The complainant was provided with summaries of the interviews of Ms E. and Ms B., as well as her own, and was given ample opportunity to comment on them, of which she availed herself. The auditors found that, in substance, the alleged statements had in fact been made by the complainant, based solely on the three witness testimonies (of Ms B., Ms E. and the complainant). The auditors were tasked only with a fact-finding investigation, so they made no qualitative judgement on the complainant’s statements in question and merely limited themselves to verifying whether or not the incident had occurred. Considering this, and the fact that the complainant had a summarized version of each of the interviews, she had all the evidence on which the authority based its decision (see Judgment 3863, under 18).

  Reference(s)

  ILOAT Judgment(s): 3863
  

  Keywords:

  adversarial proceedings; confidential evidence; disciplinary procedure; inquiry; investigation; procedural rights during investigation;
  

  
  
  

• Judgment 3875

  
  124th Session, 2017
  European Organization for Nuclear Research
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to dismiss him on disciplinary grounds.

  Consideration 5

  Extract:

  An investigation aimed at identifying the perpetrator of an undisputed incident of computer hacking has no chance of success unless rigorous protective measures are taken immediately, as a first step, in order to put an end to the damage caused by this unlawful action. The evidence in the file shows, firstly, that the conduct of the investigators towards an employee whom they could objectively regard as the prime suspect did not go beyond what was necessary in the circumstances. Had they not seized all the data in his possession, and had he not been removed temporarily from his workplace, it would have been easy for him, if he was the guilty party, to erase any data which might have proved that he was implicated in the hacking which formed the subject of the investigation.

  Keywords:

  evidence during investigation; hacking; inquiry; investigation; procedural rights during investigation;
  

  
  
  

• Judgment 3200

  
  115th Session, 2013
  Food and Agriculture Organization of the United Nations
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to impose on her the disciplinary measure of demotion.

  Consideration 9

  Extract:

  The complainant was demoted from grade P-3 to grade P-2 on the grounds that she had harassed and intimidated Ms A., a staff member over whom she had authority.
  
  When the complainant asked towards the beginning of the interview who was accusing her she was told, in effect, that this information would emerge from the questions. This is not what paragraph 5.2 requires. In order to understand what the allegations are and how to respond and frame a defence, an accused would need to be told who had made the allegations. The identity of the accuser is a significant piece of information necessary to inform the accused of the factual context in which the accused’s alleged conduct was said to have occurred. The obligation to inform the accused of the allegations includes an obligation to identify the accuser as part of the factual matrix of what constitutes “the allegation”.

  Keywords:

  disclosure of evidence; opening of an investigation; procedural rights during investigation; witness;
  

  Consideration 8

  Extract:

  It will often be fair to the accused to give notice of the allegations some time before the interview, perhaps even days, so that the accused has an opportunity to gather their thoughts about who might give evidence on the accused’s behalf and, in appropriate cases, identify documents which might assist the accused’s defence. Of course, as paragraph 5.2 [of the OSDI Quality Assurance Manual] also contemplates, such notice might be inappropriate if it compromised the integrity of the investigation, but that is likely not to be the norm. However, what is clear is that this step of informing the accused of the allegations should occur before the interview.

  Keywords:

  duty to inform about the investigation; notification of allegations; procedural rights during investigation;
  

  Consideration 11

  Extract:

  "Paragraph 5.2 [of the OSDI Quality Assurance Manual] must be interpreted in a manner consistent with the fundamental right of due process to know the name of the accuser except in those circumstances where revealing the identity of the accuser could undermine the integrity of the investigation."

  Reference(s)

  Organization rules reference: Paragraph 5.2 of the OSDI Quality Assurance Manual
  
  

  Keywords:

  adversarial proceedings; disclosure of evidence; duty to inform; opening of an investigation; procedural rights during investigation; witness;
  

  
  
  

• Judgment 2741

  
  105th Session, 2008
  International Olive Oil Council
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 3

  Extract:

  The complainant asserts that he was deliberately excluded from the decisive initial phase of the investigation, which made it impossible for him to prevent any tampering with the equipment seized in his office. He argues that because the search of his computer equipment was carried out in secrecy, his “worker’s dignity” and his right to privacy were unjustifiably violated which, in his view, renders the evidence thus gathered inadmissible. […] Any worker has the right to be protected against arbitrary or unlawful interference by an employer in his or her private life or correspondence. Any interference in a worker’s private life ordered exceptionally by an employer to safeguard the normal and secure functioning of a company’s information technology system must be undertaken in the presence of the worker or his or her representatives. If that is not possible owing to the urgency of the situation, all reasonable precautions should be taken to ensure that the accessing of the worker’s personal files remains within the bounds of what is required for company security, that any unjustified disclosure or dissemination of personal information is avoided and that any tampering with the computer equipment is prevented. In addition, the person concerned must be informed without delay of the investigations conducted and given all reasonable means to assert his or her rights. These basic principles are applicable to employment relations within international organisations.

  Keywords:

  inquiry; investigation; procedural rights during investigation; right to privacy;
  

  Consideration 4(a)

  Extract:

  A disciplinary penalty can be imposed only at the close of an adversarial procedure that fully guarantees the presumption of innocence and the staff member’s right to be heard. The facts complained of must be clearly stated and notified in good time so that the staff member can participate actively and fully in the taking of evidence both before the body responsible for conducting the investigation and before the advisory disciplinary body and the decision-making authority. These bodies must scrupulously avoid taking evidence from one party without the other’s knowledge, whether or not the evidence is prejudicial to the staff member (see Judgments 1133, 1212, 2254, under 6, and 2475, under 20).

  Reference(s)

  ILOAT Judgment(s): 1133, 1212, 2254, 2475
  

  Keywords:

  adversarial proceedings; due process in disciplinary procedure; procedural rights during investigation;
  

  
  
  

• Judgment 2589

  
  102nd Session, 2007
  International Atomic Energy Agency
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 7

  Extract:

  No general principle obliges the Agency to make provision for staff members under investigation to be assisted by a staff representative when they are interviewed at this stage of the proceedings.

  Keywords:

  assistance during investigation; procedural rights during investigation; staff representative;
  

  Consideration 7

  Extract:

  It is [...] clear that the rules relating to due process, in particular, which must be respected scrupulously during the actual disciplinary proceedings, as the Tribunal points out in the judgments to which the complainant refers (see, for example, Judgment 2475), do not apply during the investigation of matters brought before an internal auditing body such as the OIOS. The terms of reference of the OIOS do specify that investigations shall respect the rights of staff members, but in this connection they establish precise rules which have been followed in this case.

  Reference(s)

  ILOAT Judgment(s): 2475
  

  Keywords:

  procedural rights during investigation;
  

  
  
  

• Judgment 1977

  
  89th Session, 2000
  International Atomic Energy Agency
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 6

  Extract:

  "[The complainant] argues that because the Tribunal found in Judgment 1763 that the Director of the Division of Personnel should not have both collected evidence at the investigation stage and sat as chairman of the Joint Disciplinary Board at the deliberative stage, the consequence must be that any evidence collected in that flawed process must be forever tainted [...] The complainant is wrong. Judgment 1763 did not find that the investigation process was itself flawed but made it clear that the manner in which it had been carried out in part by a person who was also Chairman of the Joint Disciplinary Board vitiated the latter's deliberative functions. The evidence itself remained both admissible and relevant and as long as both the [Office of Internal Audit and Evaluation Support] and the ad hoc panel offered the complainant full opportunity to comment on and respond to it, which they did, the complainant has no legitimate grounds for objecting thereto."

  Reference(s)

  ILOAT Judgment(s): 1763
  

  Keywords:

  admissibility of evidence; appraisal of evidence; conflict of interest; disciplinary procedure; evidence; evidence during investigation; inquiry; investigation; procedural rights during investigation; right to be heard;