Disclosure of evidence (151,-666)
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Keywords: Disclosure of evidence
Total judgments found: 185
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Judgment 4085
127th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject her harassment grievance.
Consideration 2
Extract:
The complainant’s request for the disclosure of documents is rejected because, cast in the most general and imprecise terms, it is made on the speculative basis that something will be found in those documents to further her case. It constitutes an impermissible “fishing expedition” (see, for example, Judgments 2510, under 7, and 3345, under 9).
Reference(s)
ILOAT Judgment(s): 2510, 3345
Keywords:
disclosure of evidence; fishing expedition;
Judgment 4084
127th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to transfer her and the appointment of another staff member without a competitive recruitment process.
Consideration 5
Extract:
The complainant applies for the disclosure of documents in these terms:
“The Complainant hereby requests that she be provided with true copies of the following documents or items simultaneously with the submission of the Administration’s Reply in order to allow for the Complainant to analyse and comment on same in her Rejoinder: any and all accounting records, documents, reports, correspondence, e-mails, notes, records, memoranda, letters, notices, file contents, minutes, minuted phone calls, or any other documents or items in the possession of the Administration that in any way describe, comment on, relate or refer to, control, record, and/or evidence, in general or specifically, the reclassification or establishment of the Complainant’s post. [...]”
The application is dismissed because, cast in these general and imprecise terms, it is based on the mere speculation that something will be found in those documents that will further the complainant’s case. It constitutes an impermissible “fishing expedition” (see, for example, Judgments 2510, under 7, and 3345, under 9).
Reference(s)
ILOAT Judgment(s): 2510, 3345
Keywords:
disclosure of evidence; fishing expedition;
Judgment 4080
127th Session, 2019
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant claims that the Organisation has breached its duty of care towards him following an accident at work, involving a contractor, which resulted in national judicial proceedings.
Consideration 11
Extract:
The complainant’s request for the production of “all the information and reports relating to the accident involving Mr [C.]”[footnote omitted], being couched as it is in excessively broad and vague terms, amounts to a “fishing expedition”. The Tribunal has consistently held that it will not order the production of documents on the basis of such a request (see, for example, Judgments 2497, consideration 15, and 3486, consideration 2). The complainant’s request must therefore be dismissed.
Reference(s)
ILOAT Judgment(s): 2497, 3486
Keywords:
disclosure of evidence; fishing expedition;
Consideration 8
Extract:
Regarding the disclosure of the internal audit report, [...] the Tribunal notes that although the report was eventually forwarded to the complainant on 18 November 2015, following the Director General’s decision of 3 November 2015 to bring disciplinary proceedings against him, the Organisation should have forwarded it to the complainant, under its duty of care towards staff members, at the time when the Belgian Labour Prosecutor’s Office was contemplating taking criminal action against him. Indeed, from an extract of the draft internal audit report included in the dossier, it is clear that in all likelihood the report contained information which could have helped the complainant to defend his case in the event of such action.
Keywords:
disclosure of evidence; duty of care; duty to inform; inquiry; investigation;
Consideration 8
Extract:
There is no need to quash the impugned decision insofar as it refused the disclosure of the internal audit report, since that report was produced subsequently, which has rendered the complainant’s claims regarding this matter moot. [...]
Keywords:
claim moot; disclosure of evidence;
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 13
Extract:
The complainant also sought an order requiring the OPCW to extract certain information from a database concerning the number of inspections. The complainant has not demonstrated this information is necessary to ensure a fair resolution of his complaint and his request is rejected.
Keywords:
disclosure of evidence;
Judgment 4035
126th Session, 2018
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant accuses her former supervisor of moral harassment.
Consideration 9
Extract:
[F]irstly, an official’s right to be informed of the composition of the Appeals Board, the main purpose of which is to enable members of the Board to be recused, does not entitle her or him to be given the names of the Administration’s representative and observer, who are not members of the Board.
Secondly, even assuming that the complainant was entitled to be provided with the documents that she wished to consult, the evidence does not show that the failure to disclose those documents had, in this case, a material impact on her right to be heard.
Keywords:
composition of the internal appeals body; disclosure of evidence; right to information;
Judgment 4033
126th Session, 2018
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant primarily challenges his non-selection for a post.
Consideration 6
Extract:
The complainant requested the disclosure of documents including a copy of the selection report. The Tribunal notes that the complainant was provided with a copy of the regular and adapted selection procedures and a copy of the selection report, redacted to remove references to the other three shortlisted candidates. The complainant contends that the remaining documents were requested to inform him of the reasoning behind the decisions not to select him and to cancel the competition. The Tribunal finds that the complainant has been fully informed of the reasoning for the cancellation of the competition, i.e. procedural flaws, and as such, considering the subject of the present case, this request for documents was speculative.
Keywords:
confidential evidence; disclosure of evidence;
Judgment 4024
126th Session, 2018
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to reclassify her post.
Consideration 14
Extract:
The Joint Appeals Board observed that the information and explanation which the complainant received about the reclassification were insufficient, particularly after such a delay in the process, and that additional information should have been given to her at the end of the process. The complainant states that she requested a copy of the “reclassification review document” from MTHR but never received it. The IAEA states that there is no such document. It is however noted that the IAEA provided documents to the Joint Appeals Board, which it did not provide to the complainant. It is also noted that the IAEA did not provide a copy of the full job evaluation report, which included the desk audit report and the proposed job description for Policy Associate, DGOP, until it submitted its reply in these proceedings. It confirmed that Ms S.G. prepared the document, which is dated July 2013. The IAEA should have provided these documents to the complainant much earlier, and, in any event, in time to enable her to properly prepare and present her internal appeal. The IAEA thereby breached the principle of procedural fairness.
Keywords:
disclosure of evidence;
Judgment 4023
126th Session, 2018
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the validity of a competition procedure in which he participated and the lawfulness of the ensuing appointment.
Considerations 5-8
Extract:
Preliminarily to examining the other grounds relied on by the complainant, however, the Tribunal will consider his request for the disclosure of the competition documents without any redactions. According to the case law, 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 him, and, under normal circumstances, such evidence cannot be withheld on grounds of confidentiality. It follows that a decision cannot be based on a material document that has been withheld from the concerned staff member. The Tribunal has consistently affirmed the confidentiality of the records of the discussions regarding the merits of the applicants for a post. However, this does not extend to the reports regarding the results of the selection process with appropriate redactions to ensure the confidentiality of third parties (see Judgment 3272, considerations 14 and 15, and the case law cited therein, as well as Judgment 3077, consideration 4). [...]
The IAEA did not disclose to the complainant the evaluator’s notes from the testing process and the related candidates’ identification keys. It considered that, on the basis of Judgment 3272, the discussions of the members of the selection panel concerning the relative merits of the candidates should remain confidential. The Tribunal agrees with this last contention and further determines that the other documents were not inappropriately redacted. Therefore, it will not order the disclosure of the transcripts of the interviews in these proceedings. The request for disclosure is dismissed.
Reference(s)
ILOAT Judgment(s): 3077, 3272
Keywords:
confidential evidence; disclosure of evidence; selection board; selection procedure;
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 4003
126th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks compensation for damages related to her arrest and detention in Libya while on an official mission.
Consideration 15
Extract:
The Tribunal finds that the reasons given in the [...] decision to reject the complainant’s claim for compensation were not supported by the evidence. Moreover, the Registrar relied on documents to which he refused to give the complainant access, while mischaracterizing the findings of those documents in a clear breach of her due process rights. He also misinformed the complainant that he had been ordered to destroy the consultant’s report and therefore could not give her a copy while knowing full well that the disclosure of the report to the complainant had already been approved. This constitutes an act of bad faith. The Registrar’s correspondence with the complainant shows that he repeatedly threatened her with charges of misconduct and possible disciplinary action unless she accepted the ICC’s offer during conciliation proceedings. This was an abuse of power and further evidence of bad faith.
Keywords:
abuse of power; bad faith; confidential evidence; disclosure of evidence; misuse of authority;
Judgment 3995
126th Session, 2018
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the measures taken by IFAD following its investigation into his allegations of harassment.
Consideration 5
Extract:
[T]he Tribunal considers that IFAD was wrong to refuse the complainant’s request for disclosure of the reports drawn up by the AUO at the end of the investigation into the conduct of the two supervisors targeted by his complaint.
The Tribunal has consistently held that a staff member must, as a general rule, have access to all the evidence on which the competent authority bases its decision concerning her or him (see, for example, Judgments 2229, under 3(b), 2700, under 6, 3214, under 24, or 3295, under 13). This implies, amongst other things, that an organisation must forward to a staff member who has filed a harassment complaint the report drawn up at the end of the investigation of that complaint (see, for example, Judgments 3347, under 19 to 21, and 3831, under 17).
Of course, this obligation to disclose must be balanced against the need to respect the confidential nature of some aspects of an inquiry, particularly that of the witness statements gathered in the course of the inquiry. As the Tribunal’s case law has confirmed, such confidentiality may be necessary in order to ensure witnesses’ protection and freedom of expression (see, in particular, Judgments 3732, under 6, and 3640, under 19 and 20). Moreover, in this case the confidentiality of some information related to the investigation was expressly required by the [applicable] provisions on this matter [...].
Reference(s)
ILOAT Judgment(s): 2229, 2700, 3214, 3295, 3347, 3640, 3732, 3831
Keywords:
confidential evidence; disclosure of evidence; due process; harassment;
Considerations 5-6
Extract:
That is why the Tribunal, after examining in camera the investigation reports produced by IFAD at its request, concluded that, while it was appropriate to order that they be shared with the complainant, they should first be redacted in order to remove any indications and passages which might reveal the identity of the witnesses. These same considerations will lead the Tribunal to deny the complainant’s request for disclosure of all the evidence stemming from the investigation process because, apart from the fact that producing it would be of little use at this stage of the proceedings, it might reveal some items of information which should legitimately remain confidential.
Nevertheless, by refusing to disclose the AUO reports to the complainant during the internal appeal process, when it should have done so in the redacted form described above, IFAD unlawfully deprived him of a genuine opportunity to challenge the findings of the investigation. In addition, although IFAD submits that on 5 May 2014 the complainant received an email summarising those findings, having regard to the text of that email, this action did not remedy the non-disclosure of the investigation reports themselves.
Lastly, in this case, the fact that the complainant was ultimately able to obtain copies of these reports during the proceedings before the Tribunal does not remedy the flaw tainting the internal appeal process. While the Tribunal’s case law recognises that, in some cases, the non-disclosure of evidence can be corrected when this flaw is subsequently remedied in proceedings before it (see, for example, Judgment 3117, under 11), that is not the case where the document in question is of vital importance having regard to the subject matter of the dispute, as it is here (see Judgments 2315, under 27, 3490, under 33, or the above-mentioned Judgment 3831, under 16, 17 and 29).
It follows from the foregoing, without it being necessary to examine the complainant’s other pleas, that the decision of 11 September 2015 must be set aside, since it was reached at the end of an internal appeal process which was unlawful in three respects.
At this stage of proceedings, the Tribunal would normally have referred the case back to IFAD in order that it might be taken up again in proceedings complying with due process. However, in view of the time which has elapsed since the events and since, as stated earlier, the complainant has now received the investigation reports and been able to comment on them, the Tribunal considers it more appropriate, in the particular circumstances of the case, to deal directly with the merits of the case.
Reference(s)
ILOAT Judgment(s): 2315, 3117, 3490, 3831
Keywords:
disclosure of evidence; hearings in camera;
Judgment 3909
125th Session, 2018
Intergovernmental Organisation for International Carriage by Rail
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the non-renewal of his temporary appointment.
Consideration 2
Extract:
The Tribunal considers that the complainant’s request has become moot since [...] the requested items have been provided.
Keywords:
claim moot; disclosure of evidence;
Judgment 3907
125th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to abolish her post and terminate her fixed-term appointment.
Consideration 27
Extract:
The complainant sought the disclosure by the ICC of specific documents. It appears from the pleadings that she subsequently obtained documents which may have satisfied, either partially or completely, this request. In any event, given the Tribunal’s findings in this case, an order for the production of documents will not be made.
Keywords:
disclosure of evidence;
Judgment 3877
124th Session, 2017
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the date on which her retroactive promotion took effect.
Consideration 3
Extract:
With regard to the request for the production of documents, the request was cast in the most general and imprecise terms and is rejected (see Judgments 2497, under 15, 3345, under 9, and 3418, under 13).
Reference(s)
ILOAT Judgment(s): 2497, 3345, 3418
Keywords:
disclosure of evidence;
Judgment 3831
124th Session, 2017
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her allegations of harassment.
Consideration 17
Extract:
A consideration of the [organisation]’s claim of confidentiality in this case is unnecessary. The fact that it voluntarily produced a copy of the [...] report with minimal redactions in its reply in these proceedings before the Tribunal completely undermines the claim of confidentiality.
Keywords:
confidential evidence; delay; disclosure of evidence;
Consideration 29
Extract:
[T]his case illustrates the difficulties that accrue from a failure to disclose materials in a timely manner. In addition to compromising a staff member’s ability to challenge an administrative decision in the internal appeal, it also undermines the purpose of the pleadings and negatively impacts the adjudicative process before the Tribunal.
Keywords:
confidential evidence; disclosure of evidence; due process;
Considerations 11 and 14-16
Extract:
It is [...] important to note that beyond a provision in the OIOS Procedures which provides that the reporter of the alleged misconduct shall be informed that the investigation has been concluded, there are no provisions in the IAEA Administrative Manual that have been referred to by the parties which provide for or authorize the disclosure of any investigative materials or the OIOS report to the reporter of the alleged misconduct. Further, Judgment 3250 relied on by the complainant does not support such disclosure. In that case, the Tribunal did not make a finding regarding disclosure, as the organisation had provided the relevant report to the complainant prior to the filing of the complaint with the Tribunal. Thus, in the present case, at the time the complainant was informed of the Administration’s decision to close her harassment case, the IAEA was under no obligation, statutory or otherwise, to disclose the OIOS report or its investigative materials to the complainant. However, this does not end the matter.
[...]
Additionally, although the case law establishes that due process requires that the subject of an investigation is entitled to comment on an investigation report in order to respond to the allegations against her or him, the case law does not extend this right to the reporter of alleged misconduct.
Although the IAEA accepts that an administrative decision cannot be based on material that was not provided to the staff member, it points out that in stating that this principle is a “general rule” the Tribunal has acknowledged that there are exceptions to this general rule. For example, in Judgment 3264, under 16, the Tribunal recognized that in principle there may be a reason in law for non-disclosure of a report; in Judgment 3272 the Tribunal affirmed the confidentiality of records of the discussions regarding the merits of applicants for a post; and in Judgment 2700, under 6, the Tribunal accepted that “there may indeed be some special cases in which a higher interest stands in the way of the disclosure of certain documents”.
As a further example, the IAEA points to Judgment 3287 where the Tribunal, at consideration 16, observed that the case under consideration provided “an example of where a specific provision effectively denying disclosure for the purposes of promoting confidential communications with an internal auditor should be maintained fully and given effect.” The IAEA contends that this reasoning is equally applicable in the present case. It argues that paragraph 6 and other related provisions in the OIOS Procedures are essential to ensuring an objective and effective investigative system. The IAEA’s reliance on this case may be conveniently dealt with here. The Tribunal’s observation in Judgment 3287 does not support the IAEA’s argument. The issue in that case was whether the provision in the organisation’s Internal Audit Charter justified the organisation’s refusal to provide the complainant in that case with a copy of an Internal Audit and Oversight Division report. Relevantly, the request for disclosure was made shortly after the completion of the report and before any internal proceedings had been initiated. Thus, it was not a situation in which a final administrative decision adversely affecting the complainant was based, or was intended to be based on the report, as in this case.
Reference(s)
ILOAT Judgment(s): 2700, 3250, 3264, 3272, 3287
Keywords:
disclosure of evidence;
Judgment 3768
123rd Session, 2017
ITER International Fusion Energy Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to renew his contract following the abolition of his post.
Consideration 13
Extract:
The Tribunal considers that the [...] Organization’s failure to disclose to the complainant “the documents related to staffing strategies” on the ground that “they constitute confidential managerial documents” was a procedural flaw. These are the documents which would have assisted the complainant, in the context of the mediation process, to understand the actions, rationale and decision to abolish his post. While the [...] Organization disclosed them to the Mediator, it refused to disclose them to the complainant. This was in breach of the principle of procedural fairness as well as the Organization’s duty of care to the complainant entitling him to moral damages [...].
Keywords:
confidential evidence; disclosure of evidence;
Judgment 3755
123rd Session, 2017
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his continuing appointment owing to the abolition of his position.
Consideration 10
Extract:
The resultant flaw in the internal appeal procedure [non-disclosure of evidence] was not remedied in any way by the fact that the Organization produced the report in question with its reply before the Tribunal.
Keywords:
disclosure of evidence; evidence; reply;
Consideration 10
Extract:
The Tribunal has repeatedly held that a staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) a decision affecting a personal interest worthy of protection. Under normal circumstances, such evidence cannot be withheld on grounds of confidentiality unless there is some special case in which a higher interest stands in the way of the disclosure of certain documents. But such disclosure may not be refused merely in order to strengthen the position of the Administration or one of its officers (see Judgment 3688, under 29, and the case law cited therein).
The Tribunal has also found that the report of the body responsible for conducting a reassignment process […] is analogous not to the records of confidential discussions, but to the final report of a selection committee which may be disclosed to the staff member concerned, if necessary with redactions to ensure the confidentiality of third parties (see Judgment 3290, under 24).
Reference(s)
ILOAT Judgment(s): 3290, 3688
Keywords:
adversarial proceedings; confidential evidence; disclosure of evidence; duty to inform; evidence; right to be heard;
Judgment 3727
123rd Session, 2017
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, whose post was abolished following a restructuring exercise, challenges the new final decision taken by the Secretary General pursuant to Judgment 3208.
Consideration 18
Extract:
One [question] is a request by the complainant that the Federation produce certain documents. The request is expressed at a high level of generality and can properly be characterised as a “fishing expedition” (see, for example, Judgment 3419, consideration 6), and, for that reason, should be rejected.
Reference(s)
ILOAT Judgment(s): 3419
Keywords:
disclosure of evidence; fishing expedition;
Judgment 3688
122nd Session, 2016
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to abolish her post and to separate her from service.
Consideration 31
Extract:
WHO’s failure to disclose the relevant documents to the complainant in the internal appeal proceedings breached the adversarial principle or the principle of equality of arms, which constitutes a breach of due process entitling the complainant to moral damages.
Keywords:
damages; disclosure of evidence; due process; moral injury;
Judgment 3648
122nd Session, 2016
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the validity of a competition process in which she participated and the lawfulness of the ensuing appointment.
Consideration 12
Extract:
There is no need to order, as the complainant requests, the disclosure of the competition file, which in any case would be pointless in view of the decision taken.
Keywords:
disclosure of evidence;
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