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Due process (187,-666)

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Keywords: Due process
Total judgments found: 170

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  • Judgment 3649


    122nd Session, 2016
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision of the Director General of the IAEA to summarily dismiss him for serious misconduct.

    Consideration 19

    Extract:

    [T]he complainant has not established any adverse consequences in terms of his ability to adequately respond stemming from the amount of time allocated to respond. It is also observed that he was granted an extension of time when requested and he was able to meet all the stipulated deadlines.

    Keywords:

    disciplinary procedure; due process; misconduct;



  • Judgment 3640


    122nd Session, 2016
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the disciplinary measure of his summary dismissal in the wake of a sexual harassment complaint filed against him by one of his colleagues.

    Consideration 16

    Extract:

    [W]hile an international organization cannot rely only on an internal investigative report in taking disciplinary measure against a staff member, such a report may nevertheless serve as a basis for initiating disciplinary proceedings if the indications of misconduct that it contains justify that course (see, for example, Judgment 2365, under 5(e)). When an organisation initiates proceedings in the light of such a report, it is not obliged to repeat all the investigations recorded in the report, but must simply ensure that the person concerned is given the opportunity to reply to the findings it contains so as to respect the rights of defence (see Judgment 2773, under 9).

    Reference(s)

    ILOAT Judgment(s): 2365, 2773

    Keywords:

    disciplinary measure; due process; inquiry; investigation;

    Consideration 7

    Extract:

    The complainant submits that [...] the Ethics Adviser failed to inform him of his right to be assisted or represented by a third person for the purpose of his defence during the preliminary assessment of the complaint. However, the defendant organisation contends, without this being contradicted by the complainant in his rejoinder, that the Ethics Adviser had explicitly drawn his attention to the provisions of item 18.2 expressly mentioning this right. The Tribunal considers that, in the instant case, this manner of proceeding satisfied the duty to inform, especially as the complainant is highly qualified and was thus plainly quite capable of understanding the content of these provisions.

    Keywords:

    due process; right to information;

    Considerations 17-21

    Extract:

    [T]he complainant contends with greater cogency that he was never provided with the full content of the witness statements forming the basis of the accusations against him, nor was he informed of the witnesses’ names. It is true that the witness statements were not appended to the report drawn up at the end of the investigation and, as mentioned in a footnote in that document, the identity of the witnesses was deliberately not disclosed. [...]
    [T]his strict observance of confidentiality by UNESCO might be seen as departing from the Tribunal’s established case law according to which “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 [by this authority] on the grounds of confidentiality” (see Judgment 2229, under 3(b)), to which Judgment 3295, under 13, refers). [...]
    [W]here disciplinary proceedings are brought against an official who has been accused of harassment, testimonies and other materials which are deemed to be confidential pursuant to provisions aimed at protecting third parties need not be forwarded to the accused official, but she or he must nevertheless be informed of the content of these documents in order to have all the information which she or he needs to defend herself or himself fully in these proceedings. As the Tribunal has already had occasion to state, in order to respect the rights of defence, it is sufficient for the official to have been informed precisely of the allegations made against her or him and of the content of testimony taken in the course of the investigation, in order that she or he may effectively challenge the probative value thereof (see Judgment 2771, under 18).
    In the instant case, the investigation report contained an extremely detailed description of all the instances of unwelcome behaviour by the complainant towards the 21 women identified as victims of his conduct, and their names were given in almost all cases. The complainant was therefore plainly apprised of the content of all the testimony taken during the investigation and of the e-mails which he had not been allowed to see. Furthermore, although, as stated above, the identity of the witnesses was not revealed to him, it is obvious that most of the information recorded in the report could only have come from the 21 persons concerned themselves. The complainant was therefore given a real opportunity to dispute the various items of evidence gathered in the course of proceedings against him. Moreover, it is clear from the above-mentioned comments which he submitted to the Organization on 18 November 2011 to rebut the charges of which he had been notified, that he had in fact been able to prepare them without any particular difficulty. Indeed, he himself described these comments as “clarifications and objections to the accusations of sexual harassment against [him], based on the whole file, and in particular on the IOS investigation report”.

    Reference(s)

    ILOAT Judgment(s): 2229, 2771, 3295

    Keywords:

    adversarial proceedings; confidential evidence; disciplinary procedure; due process; evidence; harassment; inquiry; investigation; right to be heard; sexual harassment; witness;



  • Judgment 3617


    121st Session, 2016
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision requiring her to undergo a medical examination during the investigation of her complaint of harassment and the dismissal of that complaint.

    Consideration 11

    Extract:

    In Judgment 2552, under 3, the Tribunal pointed out that when an accusation of harassment is made, an international organisation must both investigate the matter thoroughly and accord full due process and protection to the person accused. The organisation’s duty to a person who makes a claim of harassment requires that the claim be investigated both promptly and thoroughly, that the facts be determined objectively and in their overall context (see Judgment 2524), that the law be applied correctly, that due process be observed and that the person claiming, in good faith, to have been harassed not be stigmatised or victimised on that account (see Judgments 1376, under 19, 2642, under 8 and 3085, under 26).

    Reference(s)

    ILOAT Judgment(s): 1376, 2524, 2552, 2642, 3085

    Keywords:

    due process; harassment; investigation;



  • Judgment 3586


    121st Session, 2016
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decision not to extend his fixed-term appointment.

    Consideration 17

    Extract:

    The Tribunal has consistently stated that the principle of equality of arms must be observed by ensuring that all parties in a case are provided with all of the materials an adjudicating body such as the HBA uses in an internal appeal, and that the failure to do so constitutes a breach of due process. WHO breached due process by not having provided the relevant documents to the complainant. It also breached due process by not disclosing all of the agreements and related information, which could have assisted the HBA to have made a properly informed determination whether financial constraint was a valid reason for not extending the complainant’s contract.

    Keywords:

    disclosure of evidence; due process;

    Judgment keywords

    Keywords:

    complaint allowed; decision quashed; due process; duty of care; equity; fixed-term; non-renewal of contract;



  • Judgment 3485


    120th Session, 2015
    International Criminal Court
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss his harassment complaint for lack of evidence.

    Consideration 10

    Extract:

    "There are cases in which the evidence is such that fairness and transparency require the testing of it particularly by way of questioning of witnesses. The Tribunal views this as such a case given the nature of the allegations of harassment which the complainant proffered. The complainant and the four persons whom he named as his harassers in the internal proceedings made serious allegations and counter-allegations against each other. The Tribunal has already observed that the complainant named persons who, according to him, witnessed some alleged harassing incidents. These are circumstances in which the appropriate exercise of the discretion, which Staff Rule 110.4(d) confers, required an objective determination of the facts in their overall context. This could have been done at least by the questioning of witnesses, as well as by oral or written testimony by the persons whom the complainant named as witnesses to the alleged oral harassing incidents. The failure by the Board to do this, coupled with its decision to consider only the alleged harassing incidents that occurred within the six-month period before the internal complaint was filed, violated due process. These were serious breaches which require the impugned decision that adopted the recommendation to be set aside."

    Keywords:

    due process;

    Judgment keywords

    Keywords:

    complaint allowed; decision quashed; due process; harassment; lack of evidence;



  • Judgment 3481


    120th Session, 2015
    Technical Centre for Agricultural and Rural Cooperation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to terminate his contract with immediate effect during his trial period.

    Judgment keywords

    Keywords:

    complaint allowed; decision quashed; due process; probationary period; termination of employment;



  • Judgment 3438


    119th Session, 2015
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The Tribunal found that the complainant's request for reintegration was moot and that her other claims were devoid of merit.

    Consideration 9

    Extract:

    "[T]he complainant [...] commented so extensively on the Secretary-General’s objections that most of her submissions to the Tribunal have been thoroughly debated by the parties in the internal appeal proceedings. In these circumstances, it would be excessively formalistic to find that there has been a breach of the right to be heard in this case."

    Keywords:

    due process; internal appeal;



  • Judgment 3374


    118th Session, 2014
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The Tribunal set aside for procedural flaw the impugned decision rejecting the complainant’s request for the reclassification of his post.

    Consideration 17

    Extract:

    "As the Tribunal has consistently held, an organisation has an obligation to ensure that internal appeal procedures move forward with reasonable speed (see, for example, Judgment 2197, under 33)."

    Reference(s)

    ILOAT Judgment(s): 2197

    Keywords:

    due process; reasonable time;



  • Judgment 3352


    118th Session, 2014
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainants challenge the result of the evaluation of their job grade.

    Consideration 6

    Extract:

    "[T]he Tribunal considers that the President acted properly in asking the competent Directorates [...] for advice prior to adopting the final decision. There is no requirement that the President inform the complainants of these discussions. The adversarial principle was respected throughout the internal appeal proceedings. This type of post appeal consultation is normal and unexceptionable. There was no violation of the principle of nemo judex in causa propria as the internal appeal proceeding is a quasi-judicial administrative proceeding which results in a non-binding recommendation and the President’s final decision is a final administrative decision which can be appealed before the Tribunal for a final, neutral, judicial decision."

    Keywords:

    due process;



  • Judgment 3347


    118th Session, 2014
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision dismissing her harassment complaint and challenges the lawfulness of the internal appeals and investigation procedures.

    Judgment keywords

    Keywords:

    due process; harassment; inquiry; investigation;

    Considerations 19 to 21

    Extract:

    "It is well settled that a staff member must have access to all evidence upon which a decision concerning that staff member is based. As the Tribunal observed in Judgment 3264, under 15:
    “It is well established in the Tribunal’s case law 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 him’. Additionally ‘[u]nder normal circumstances, such evidence cannot be withheld on grounds of confidentiality’ (see Judgment 2700, under 6). It also follows that a decision cannot be based on a material document that has been withheld from the concerned staff member (see, for example, Judgment 2899, under 23).”
    It is equally well settled that a statement in a staff regulation or other internal document that a report is confidential will not “shield a report […] from disclosure to the concerned official”. Moreover, “[i]n the absence of any reason in law for non-disclosure of the report, such non-disclosure constitutes a serious breach of the complainant’s right to procedural fairness” (Judgment 3264, under 16).
    The fact that the complainant did not request a copy of the report of the IAOD, which investigated her claim of harassment, is irrelevant. She was entitled to receive a copy of it. Equally, it is not an answer to say that the complainant was given a summary of the report. In addition to the fact that she was entitled to the entire report, the summary did not contain any of the evidence upon which the conclusion was based. It simply stated that “[t]he IAOD investigation has not found facts that support the complainant’s allegations or that show she was entitled to have matters requested by her approved or that she was subjected to harassment, whether through a single incident or as an on-going pattern”. The complainant was effectively precluded from challenging the factual assertions and credibility of the witnesses interviewed and was left not knowing what evidence if any should be marshalled to counter the investigator’s conclusions.
    As stated in the case law, a decision cannot be based on a material document that has been withheld from the staff member. In the present case, the failure to provide the complainant with a copy of the investigation report prior to the Director General taking his 25 June decision renders that decision fundamentally flawed. However, as that decision was overtaken by subsequent events, the only remedy today is an award of moral damages."

    Reference(s)

    ILOAT Judgment(s): 2700, 2899, 3264

    Keywords:

    due process; evidence; inquiry; investigation;



  • Judgment 3315


    117th Session, 2014
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant seeks damages for the injury arising from breach of due process and institutional harassment.

    Judgment keywords

    Keywords:

    breach; complaint allowed; decision quashed; due process; harassment; institutional harassment;

    Consideration 26

    Extract:

    The complainant claims material damages but has adduced no evidence of actual injury as a result of an unlawful act in order to obtain such damages, notwithstanding that the events in question occurred some years before she filed her complaint. Accordingly, the Tribunal does not award material damages. There is no ground for the award of exemplary damages. However, the complainant is entitled to moral damages for the flagrant breach of due process, as well as for the institutional harassment which she sustained. These are grave violations, for which the complainant is accordingly awarded moral damages in the sum of 65,000 United States dollars. She is also awarded 3,000 dollars in costs.

    Keywords:

    breach; damages; due process; harassment; institutional harassment;



  • Judgment 3314


    117th Session, 2014
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant requests compensation for the injury arising from inaction and delay by the Administration in pursuing her harassment complaint.

    Consideration 25

    Extract:

    [T]he Organization denied the complainant the due process to which she was entitled in the investigation of her harassment complaint. The result was a delay which exposed the complainant to continued harassment. The Organization also breached its duty to provide an efficient internal redress process as a result of inordinate delay in the proceedings before the RBA and the HBA. The complaint is therefore well founded on these grounds and the complainant is entitled to damages.

    Keywords:

    due process; harassment;



  • Judgment 3295


    116th Session, 2014
    Pan American Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complaint concerning a disciplinary measure was dismissed by the Tribunal on the grounds that he had not demonstrated the existence of an error warranting the cancellation of the sanction.

    Consideration 11

    Extract:

    "The complainant also takes the position that PAHO failed to give him a warning or the opportunity to correct the situation prior to bringing disciplinary action. In Judgment 1661, under 3, the Tribunal framed an organisation’s obligations in the following terms: “Before an organisation imposes a disciplinary penalty such as dismissal it must warn the staff member and give him the opportunity not only of stating his own case but also of refuting the organisation’s: in other words, there must be due process. So he must be told of the charges and of the evidence against him. If the proceedings are to be properly adversarial, he must be free to give his own version of the facts, refute that evidence, adduce his own, take part in the discussion of it, and at least once crossquestion the expert and other witnesses. See, for example, Judgments 512 […] under 5; 907 […] under 4; 999 […] under 5; 1082 […] under 18; 1133 […] under 7; 1212 […] under 3; 1228 […] under 4; 1251 […] under 8; 1384 […] under 5, 10 and 15; 1395 […] under 6; 1484 […] under 7 and 8.”"

    Reference(s)

    ILOAT Judgment(s): 512, 907, 999, 1082, 1133, 1212, 1228, 1251, 1384, 1395, 1484, 1661

    Keywords:

    case law; disciplinary measure; disciplinary procedure; due process; inquiry; investigation; misconduct; organisation's duties; right to reply; summary dismissal; termination of employment;



  • Judgment 3290


    116th Session, 2014
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: Following the abolition of the complainant's post for lack of financial resources, the reassignment process was organized but was ultimately unsuccessful in finding the complainant another post.

    Consideration 21

    Extract:

    As the Tribunal observed in Judgment 3264 [...]:
    “It is well established in the Tribunal’s case law 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 him”. Additionally, “[u]nder normal circumstances, such evidence cannot be withheld on grounds of confidentiality [citation omitted]” (Judgment 2700, under 6). It also follows that a decision cannot be based on a material document that has been withheld from the concerned staff member (see for example, Judgment 2899, under 23).”

    Reference(s)

    ILOAT Judgment(s): 2700, 2899, 3264

    Keywords:

    disclosure of evidence; due process;



  • Judgment 3272


    116th Session, 2014
    Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant successfully challenges the decision not to appoint her to a vacant post due to procedural flaw and violation of her right to due process.

    Consideration 15

    Extract:

    "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."

    Keywords:

    adversarial proceedings; confidential evidence; disclosure of evidence; due process; duty to inform; organisation's duties; procedural flaw; right to be heard; selection board; selection procedure;



  • Judgment 3264


    116th Session, 2014
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant successfully impugns the decision not to renew her contract after an extension of her probationary period and is granted damages.

    Judgment keywords

    Keywords:

    breach; complaint allowed; confidential evidence; decision quashed; disclosure of evidence; discretion; due process; duty to inform; extension of contract; general principle; good faith; judicial review; non-renewal of contract; organisation's duties; performance report; probationary period; procedural flaw; respect for dignity; right to reply; unsatisfactory service; work appraisal;

    Considerations 15-16

    Extract:

    It is well established in the Tribunal’s case law 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 him”. Additionally, “[u]nder normal circumstances, such evidence cannot be withheld on grounds of confidentiality” (see Judgment 2700, under 6). It also follows that a decision cannot be based on a material document that has been withheld from the concerned staff member (see, for example, Judgment 2899, under 23).

    Although Article 10.3 of the Staff Regulations provides that the “proceedings of the [Reports] Board shall be regarded as secret”, this alone does not shield a report of the Board from disclosure to the concerned official. In the absence of any reason in law for non-disclosure of the report, such non-disclosure constitutes a serious breach of the complainant’s right to procedural fairness.

    Reference(s)

    ILOAT Judgment(s): 2700, 2899

    Keywords:

    breach; confidential evidence; disclosure of evidence; due process; procedural flaw;



  • Judgment 3234


    115th Session, 2013
    Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant successfully impugned the decision to abolish his post following a restructuring.

    Consideration 11

    Extract:

    "[T]he Commission has acted inappropriately by refusing to present evidence requested by the Joint Appeals Panel, on the grounds that it did not consider the evidence to be pertinent to the appeal. It was for the Panel to decide, upon examination of the evidence, whether or not they were pertinent. Considering the fact that the evidence could have had an effect on the Panel’s findings, and considering the Commission’s refusal to submit to the authority of the Joint Appeals Panel without giving any reasonable explanation for such a refusal, the Tribunal finds that this is a violation of its duty to act in good faith and undermines the proper functioning of the internal appeals process. This will be taken into account in the calculation of the award of damages to the complainant (see Judgment 1319, under 9)."

    Reference(s)

    ILOAT Judgment(s): 1319

    Keywords:

    advisory body; disclosure of evidence; due process; duty to inform; good faith; internal appeal; internal appeals body; organisation's duties; procedural flaw; procedure before the tribunal;



  • Judgment 3224


    115th Session, 2013
    International Organization for Migration
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant successfully contests the termination of her appointment for unsatisfactory service, alleging the absence of a genuine assessment procedure.

    Consideration 7

    Extract:

    "The Tribunal recalls that a staff member whose service is not considered satisfactory is entitled to be informed in a timely manner as to the unsatisfactory aspects of his or her service, so as to be in a position to remedy the situation, and to have objectives set in advance. It also recalls 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. Except in a case of manifest error, the Tribunal will not substitute its own assessment of a staff member’s services for that of the competent bodies of an international organisation. Nevertheless, such an assessment must be made in full knowledge of the facts, and the considerations on which it is based must be accurate and properly established (see Judgments 3070, under 9, 2468, under 16, and 2414, under 23 and 24)."

    Reference(s)

    ILOAT Judgment(s): 2414, 2468, 3070

    Keywords:

    condition; criteria; decision; due process; duty to inform; elements; exception; grounds; judicial review; limits; organisation's duties; patere legem; performance report; right; unsatisfactory service; work appraisal; written rule;



  • Judgment 3172


    114th Session, 2013
    Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the abolition of her post and the decision not to extend her appointment as procedurally flawed.

    Consideration 24

    Extract:

    "The Staff Regulations and Rules do not require the Joint Appeals Panel to explain why it considers a given document to be relevant. However, in this case, the Panel did explain both in its memorandum to the Administration and in its formal recommendation to the Executive Secretary that the requested documents were relevant to the disputed question of whether the decisions to abolish the complainant’s post and not to extend her appointment were tainted by bias or some other legally vitiating factor. By refusing to proffer the documents, even though this did not prevent the Panel from continuing the appeal and issuing its recommendation, the Commission breached the principles of due process, entitling the complainant to moral damages."

    Keywords:

    breach; disclosure of evidence; due process; evidence; general principle; moral injury; organisation's duties; procedural flaw;



  • Judgment 3162


    114th Session, 2013
    Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decision to terminate his appointment which, in his view, is flawed for breach of due process.

    Consideration 22

    Extract:

    "An allegation of dishonesty is an allegation of unsatisfactory conduct that may result in disciplinary action. As such, it must be dealt with in accordance with the organisation’s prescribed procedures (see Judgment 1724, under 14). That was not done in this case. This failure deprived the complainant of an opportunity to defend himself against a serious allegation and reflects a serious breach of his right to due process. The breach is particularly egregious having regard to the complainant’s work and the nature of the allegations."

    Reference(s)

    ILOAT Judgment(s): 1724

    Keywords:

    breach; disciplinary measure; due process; general principle; good faith; moral injury; organisation's duties; procedural flaw; procedure before the tribunal; right to reply; written rule;

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Last updated: 15.12.2021 ^ top