Disciplinary procedure (509, 901, 909, 910, 911, 912, 917,-666)
You searched for:
Keywords: Disciplinary procedure
Total judgments found: 123
< previous | 1, 2, 3, 4, 5, 6, 7 | next >
Judgment 4360
131st Session, 2021
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her summary dismissal for serious misconduct.
Consideration 14
Extract:
Because the Prosecutor rejected the findings and recommendations of the Board, she was obliged to motivate her conclusion and address not only the relevant inculpatory evidence pointing to guilt but also the relevant exculpatory evidence pointing to innocence, including the alibi evidence. She failed to do so [...].
Keywords:
disciplinary procedure; final decision; motivation;
Judgment 4359
131st Session, 2021
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to suspend her pending the outcome of a disciplinary procedure.
Judgment keywords
Keywords:
complaint dismissed; disciplinary procedure; suspension;
Judgment 4343
131st Session, 2021
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to demote him by two grades as a disciplinary measure for harassment.
Considerations 13-14
Extract:
The Tribunal’s case law accepts that there may be situations in which an organization can refuse to provide the subject of disciplinary proceedings with the transcripts of witness interviews without committing a breach of due process. An example is provided by Judgment 3640, where the issue of the need to reconcile the requirements of due process with the confidentiality of harassment investigations was dealt with in considerations 17 to 22. In that judgment, the Tribunal recalled its 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)”. In consideration 20, the Tribunal observed that, “as is expressly indicated by the use of the terms ‘as a general rule’ and ‘under normal circumstances’ [...], the case law in question does allow some exceptions to the principle which it establishes”. The Tribunal held that:
“[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).”
It is therefore necessary to consider whether the evidence in the present case shows that the complainant was sufficiently informed of the content of the witness statements, even though they were not shared with him, as there would have been “a serious breach of due process” if he had not been so informed (see Judgment 3137, under 6).
Reference(s)
ILOAT Judgment(s): 2229, 2771, 3137, 3295, 3640
Keywords:
confidentiality; disciplinary procedure; due process; harassment; witness;
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 9
Extract:
It is not disputed that the above rules were not complied with. On this issue the ILO submits that the Committee’s Rules of Procedure, and in particular paragraph 13, reflect a practice that has gradually become superfluous following the establishment of the IAO, which is the only unit authorised to conduct investigations. Given that an official under investigation is heard by the IAO and notified of the procedure, she or he is fully informed of the content of the case file forwarded to the Committee, which hence no longer needs to provide it to the official concerned. The Rules of Procedure were being revised and would be published shortly on the Committee’s website.
However, the Tribunal observes that, so long as the rules are neither amended nor repealed, the principle tu patere legem quam ipse fecisti requires the Organization to apply them (see Judgment 3883, under 20). That principle is particularly applicable in disciplinary matters (see Judgment 3123, under 10).
Reference(s)
ILOAT Judgment(s): 3123, 3883
Keywords:
disciplinary procedure; patere legem; practice;
Judgment 4247
129th Session, 2020
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her dismissal from service for serious misconduct.
Considerations 11-12
Extract:
The complainant is [...] of the view that the decision is flawed because [...] WIPO failed to prove her misconduct beyond a reasonable doubt. [...] In relation to the [...] point the complainant made, as stated in Judgment 3882, in consideration 14:
“It is settled principle that the organization must prove its case against a complainant in a disciplinary matter such as this beyond a reasonable doubt. The complainant argues that the [organization] did not meet that standard of proof in the present case. The Tribunal’s approach when this issue is raised was stated, for example, in consideration 14 of Judgment 3649, as follows:
‘At this juncture, it is useful to reiterate the well settled case law that the burden of proof rests on an organization to prove the allegations of misconduct beyond a reasonable doubt before a disciplinary sanction is imposed. It is equally well settled that the “‘Tribunal will not engage in a determination as to whether the burden of proof has been met, instead, the Tribunal will review the evidence to determine whether a finding of guilt beyond a reasonable doubt could properly have been made’ (see Judgment 2699, consideration 9).”
However, at this juncture, it must also be noted that WIPO’s Staff Rule 10.1.2(d) expressly provides that the applicable standard of proof in disciplinary proceedings is “clear and convincing evidence”.
In the present case, based on a comprehensive investigation, IOD found that there was “clear and convincing evidence that [the complainant] was absent from work without a proper authorization 80 times between 1 October 2014 and 31 March 2015” and that, “[i]n each of [these] instances, [she] had misrepresented her presence at work through e-Work ‘omission to clock’ submissions”. The Tribunal has reviewed the IOD’s investigation report and the extensive evidence referenced in that report. The Tribunal agrees with IOD’s characterization of the evidence as being, at a minimum, “clear and convincing evidence” regarding the complainant’s conduct. It is clear that the facts underlying the charge of misconduct are uncontroverted. The reference by the Director General to the “clear and convincing evidence standard” does not detract from the fact that, in substance, the standard of beyond a reasonable doubt was met.
Reference(s)
ILOAT Judgment(s): 2699, 3649, 3882
Keywords:
burden of proof; disciplinary measure; disciplinary procedure; misconduct; standard of proof;
Judgment 4237
129th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision – taken after his resignation – to find him guilty of serious misconduct, and the decision to withhold from his separation entitlements an amount corresponding to financial losses allegedly incurred by WHO as a result of his misconduct.
Consideration 12
Extract:
According to the Tribunal’s case law (see, for example, Judgments 3757, under 6, 4024, under 6, 4026, under 5, and 4091, under 17), “where an internal appeal body has heard evidence and made findings of fact, the Tribunal will only interfere if there is manifest error (see Judgment 3439, consideration 7)”. Moreover, where there is an investigation by an investigative body in disciplinary proceedings, “it is not the Tribunal’s role to reweigh the evidence collected by an investigative body the members of which, having directly met and heard the persons concerned or implicated, were able immediately to assess the reliability of their testimony. For that reason, reserve must be exercised before calling into question the findings of such a body and reviewing its assessment of the evidence. The Tribunal will interfere only in the case of manifest error (see Judgments 3682, under 8, and 3593, under 12)” (see Judgment 3757, under 6).
Reference(s)
ILOAT Judgment(s): 3439, 3593, 3682, 3757, 3757, 4024, 4026, 4091
Keywords:
disciplinary procedure; evidence; inquiry; internal appeal; 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.
Judgment keywords
Keywords:
complaint dismissed; disciplinary procedure; misconduct; termination of employment;
Consideration 11
Extract:
The second procedural ground raised by the complainant involves a contention that he was not provided with all evidence collected by OIGI in order to enable him to mount his defence. The defendant organization’s response in its reply is twofold. Insofar as the complainant’s grievance was that some of the documents (transcripts of interviews) he was given were redacted, the redacted information related to another investigation and was not at all relied upon in consideration of the charges against the complainant. In the circumstances of this case, there is no basis for the Tribunal to doubt this is correct. The second element of the response is that, to the extent that the complainant points to the fact that he was not given 11 transcripts of interviews until after the disciplinary measure of dismissal was imposed, the defendant organization says they were not relevant to the decision to dismiss him. The complainant had all relevant transcripts when pursuing his appeal to the WFP Executive Director and the FAO Appeals Committee and he did not then demonstrate, nor has he in these proceedings before the Tribunal, that those 11 transcripts were or even may have been relevant to the decision to dismiss him. Accordingly, this ground should be rejected.
Keywords:
disciplinary procedure; disclosure of evidence; due process; inquiry; investigation;
Judgment 4207
129th Session, 2020
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the Director General’s decision to endorse the conclusion of the Office of Internal Oversight Services that it was unable to make a conclusive determination on her sexual harassment claim and to reject her related request for damages.
Consideration 14
Extract:
A claim of harassment and a report of misconduct based on an allegation of harassment are distinct and separate matters. A claim of harassment is a claim addressed to the organization the resolution of which only involves two parties, the organization and the reporter of the harassment. In contrast, a report of alleged misconduct, based on an allegation of harassment, triggers the Appendix G procedures, a process that is directed at the culpability of the staff member in question and potentially the imposition of a disciplinary measure. In this process, the two parties are the organization and the staff member in question. In this process, the reporter of the misconduct, a potential victim of the harassment, is a witness and not a party in the proceedings.
Keywords:
disciplinary procedure; harassment; misconduct; sexual harassment;
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 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 about the investigation; inquiry; investigation; right to be heard; right to reply;
Consideration 12
Extract:
As the Tribunal stated in Judgment 3872, under 2, “[c]onsistent precedent has it that decisions which are made in disciplinary cases are within the discretionary authority of the executive head of an international organization and are subject to limited review. The Tribunal will interfere only if the decision is tainted by a procedural or substantive flaw (see Judgment 3297, under 8). Moreover, where there is an investigation by an investigative body in disciplinary proceedings, the Tribunal’s role is not to reweigh the evidence collected by it, as reserve must be exercised before calling into question the findings of such a body and reviewing its assessment of the evidence. The Tribunal will interfere only in the case of manifest error (see Judgment 3757, under 6)”.
Reference(s)
ILOAT Judgment(s): 3297, 3757, 3872
Keywords:
disciplinary procedure; evidence; judicial review; manifest error;
Judgment 4091
127th Session, 2019
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant primarily challenges the amount of compensation offered to her by the IAEA in respect of a harassment complaint.
Consideration 17
Extract:
[T]he complainant is asking the Tribunal to reweigh the evidence. As stated in Judgment 3593, under 12, the Tribunal has consistently held:
“[...] that it is not the Tribunal’s role to reweigh the evidence before an investigative body which, as the primary trier of fact, has had the benefit of actually seeing and hearing many of the persons involved, and of assessing the reliability of what they have said. For that reason such a body is entitled to considerable deference. So that where in the present case the Investigation Panel has heard evidence and made findings of fact based on its appreciation of that evidence and the correct application of the relevant rules and case law, the Tribunal will only interfere in the case of manifest error.”
(See also Judgments 3995, under 7, 3882, under 13, and 3682, under 8.)
Reference(s)
ILOAT Judgment(s): 3593, 3682, 3882, 3995
Keywords:
disciplinary procedure; evidence; inquiry; internal appeals body; investigation; judicial review; manifest error; testimony;
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 8
Extract:
[T]he Tribunal is simply astonished that the complainant was invited to sign two proposals for a settlement requiring him to pay sums of money in exchange for the Organisation waiving disciplinary action against him and providing him with protection against any possible criminal action. Such a conduct is inadmissible.
Keywords:
disciplinary procedure; settlement out of court;
Judgment 4076
127th Session, 2019
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The UPU filed and application for interpretation and review of Judgment 3927 and the complainant in that case filed an application for execution of that judgment.
Judgment keywords
Keywords:
application filed by the organisation; application for execution; application for interpretation; application for review; complaint allowed; disciplinary procedure; suspension of the execution of a judgment;
Judgment 4065
127th Session, 2019
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: In his second complaint, the complainant challenges the decision to dismiss him, while he was on sick leave, for misconduct. In his third complaint, he challenges the dismissal decision on the merits.
Consideration 5
Extract:
Inasmuch as the complainant challenges a disciplinary decision, it is recalled that consistent precedent has it that such decisions are within the discretionary authority of the executive head of an international organization and are subject to limited review. The Tribunal will interfere only if the decision is tainted by a procedural or substantive flaw. Additionally, the Tribunal will not interfere with the findings of an investigative body in disciplinary proceedings unless there is manifest error (see, for example, Judgment 3872, under 2).
Reference(s)
ILOAT Judgment(s): 3872
Keywords:
disciplinary procedure; discretion; inquiry; investigation; judicial review; procedural flaw;
Judgment 4058
127th Session, 2019
World Customs Organization (Customs Co-operation Council)
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his fixed-term appointment for serious misconduct.
Judgment keywords
Keywords:
complaint allowed; decision quashed; disciplinary procedure; misconduct; termination of employment;
Consideration 8
Extract:
[T]he Disciplinary Committee found no misconduct and recommended no sanction. In the decision of [...], the Secretary General failed to explain why the Disciplinary Committee’s analysis and conclusions on both the question of guilt and the question of sanction were wrong (see Judgment 3969, consideration 10).
Reference(s)
ILOAT Judgment(s): 3969
Keywords:
disciplinary procedure; duty to substantiate decision; final decision; motivation; motivation of final decision;
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; duty to inform; right to reply;
Considerations 22-23
Extract:
The complainant claims that his actions did not cause any identifiable prejudice. The Tribunal observes that the complainant obstructed the proper functioning of the system of internal remedies by his unjustified absence from the July session, his undermining of the Chairperson’s authority to take organizational decisions and his refusal to finalize the cases assigned to him which had been pending prior to the July session before leaving the IAC. The complainant does not acknowledge the negative impact of his uncooperative behaviour on the functioning of the IAC, which consequently adversely affected the interests of the other members of the IAC.
[...] The Tribunal finds that in [his] decisions [...] the President properly motivated his reasoning for deviating from the Disciplinary Committee’s recommendation of the sanction of relegation in step by one step. Furthermore, the [...] mitigating factors identified by the complainant are unconvincing. [T]he provisions were lawful, his absence was unjustified, his behaviour was intentional, and furthermore, his willingness to attend the September session was conditional. Taken as a whole, the complainant’s behaviour constituted misconduct, which was aggravated by the fact that he was an IAC member who would be expected to have a high level of respect for the rules, for confidentiality, and for the proper functioning of the appeal system. [T]he President maintained the sanction proposed by the Disciplinary Committee (relegation in step), but after considering the severity of the misconduct, he concluded that relegation by three steps was justified. The Tribunal considers the contested sanction not to be disproportionate in light of the above considerations.
Keywords:
disciplinary measure; disciplinary procedure; proportionality;
Judgment 4047
126th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose on her with immediate effect the disciplinary measure of dismissal for serious misconduct.
Considerations 6, 9 and 13
Extract:
Overall, the case law of the Tribunal is clear and consistent. It was recently referred to in Judgment 3863, consideration 8 (see, also, Judgment 3882, consideration 14, as another recent example), in which the Tribunal said:
“[A]ccording to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14). It is equally well settled that the ‘Tribunal will not engage in a determination as to whether the burden of proof has been met, instead, the Tribunal will review the evidence to determine whether a finding of guilt beyond a reasonable doubt could properly have been made by the primary trier of fact’ (see Judgment 2699, consideration 9).”
It is legally irrelevant, for the purposes of the Tribunal’s judicial determination of the complaint, that, as the EPO points out in the reply, the same formulation is used in the English common law to establish the standard of proof in criminal proceedings.
[...]
The test [in question] is to be applied by the decision-maker who has to decide whether there has been misconduct and the appropriate sanction. Usually that is the executive head of an organisation or her or his delegate. However it is also a test to be applied by bodies such as a disciplinary committee, though whether it does in any given case will ultimately depend on the role such a body has under the organisation’s rules. Under Article 102 of the Service Regulations for permanent employees of the Office, the Disciplinary Committee is obliged to deliver a reasoned opinion on thedisciplinary measure appropriate to the facts complained of and transmit the opinion to, in this case, the President. This could only be done if the Disciplinary Committee concluded that the staff member had, on the facts, engaged in misconduct warranting a disciplinary measure. Plainly enough, the Disciplinary Committee must be satisfied that the evidence establishes beyond reasonable doubt that the misconduct occurred. There would be no utility in the Disciplinary Committee applying some other standard before reporting to the President.[...]
In some circumstances, it may be that if one of a number of sets of charges was assessed applying the appropriate standard of proof and a conclusion of guilt reached, the imposition of a particular disciplinary sanction might be justified by reference to the proof of that set of charges beyond a reasonable doubt notwithstanding the failure to apply the appropriate standard in relation to the other sets of charges. [...]
Reference(s)
ILOAT Judgment(s): 2699, 3649, 3863, 3882
Keywords:
burden of proof; disciplinary procedure; standard of proof; standard of proof in disciplinary procedure;
Judgment 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 5-16
Extract:
In principle, allegations concerning irregularities in an investigation must be brought in the context of a challenge to the final decision arising from the investigation proceedings (see, in this connection, Judgment 3236, under 11). However, in this case, there was no disciplinary decision, since the investigation showed that the allegations against the complainant were unfounded. Nevertheless, inasmuch as the complainant submits that these flaws themselves constitute proof of institutional harassment, the Tribunal must examine them, since the Tribunal’s case law has established that the question as to whether harassment has occurred must be determined in the light of a thorough examination of all the objective circumstances surrounding the events complained of (see, for example, Judgment 3871, under 12). [...]
Be that as it may, the Tribunal must determine whether all the elements examined above amount to institutional harassment.
The JAAB and the complainant share the view that, “taken as a whole”, the elements in question lead to the conclusion that there was institutional harassment. It is correct to say that a long series of acts and omissions evidencing mismanagement which have compromised a complainant’s dignity and career prospects may constitute institutional harassment (see Judgments 3315, under 22, and 3250, under 9), but this was not the case here. As explained above, most of the matters on which the complainant relies cannot be accepted. There was a reasonable explanation for these elements and thus they cannot be said to constitute harassment (see Judgments 3447, under 9, and 2524, under 25). Only two procedural flaws have been established, one of which is partly the consequence of the other: first, the flaw resulting from the extension of the investigation to cover a new allegation differing from that on which it was initiated and, secondly, the inordinate length of the investigation which was partly the result of that.
The Tribunal will examine the ILO’s definition of harassment in order to determine whether these two flaws amount to an act of harassment (see Judgment 2594, under 18). [...]
In this case, it must be recalled that an investigation is not disciplinary in nature, but that its sole purpose is to ascertain all relevant facts in order to determine whether there is sufficient evidence to initiate a disciplinary procedure (see Judgments 2771, under 15, and 2364, under 3). In accordance with paragraph 19 of the Uniform Guidelines for Investigations, both inculpatory and exculpatory information must be examined. The investigation clarified matters with the result that the complainant was not charged with any wrongdoing. He was cleared of any suspicion and his career has not been hampered. This shows that, at all events, the Organization had no wish to harm or harass him. An investigation that has been opened lawfully cannot be termed harassment. Admittedly, the unlawful extension of the investigation, which had already been inadmissibly delayed, made it unduly long. However, it is well settled that an unlawful decision or unsatisfactory conduct is not sufficient in itself to constitute harassment (see Judgments 3233, under 6, and 2861, under 37).
Reference(s)
ILOAT Judgment(s): 2364, 2524, 2594, 2771, 2861, 3233, 3236, 3250, 3315, 3447, 3871
Keywords:
disciplinary procedure; inquiry; institutional harassment; investigation;
Judgment 4038
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.
Considerations 5-18
Extract:
In principle, allegations concerning irregularities in an investigation must be brought in the context of a challenge to the final decision arising from the investigation proceedings (see, in this connection, Judgment 3236, under 11). However, in this case, there was no disciplinary decision, since the investigation showed that the allegations against the complainant were unfounded. Nevertheless, inasmuch as the complainant submits that these flaws themselves constitute proof of institutional harassment, the Tribunal must examine them, since the Tribunal’s case law has established that the question as to whether harassment has occurred must be determined in the light of a thorough examination of all the objective circumstances surrounding the events complained of (see, for example, Judgment 3871, under 12). [...]
Be that as it may, the Tribunal must determine whether all the elements examined above amount to institutional harassment.
The JAAB and the complainant share the view that, “taken as a whole”, the elements in question lead to the conclusion that there was institutional harassment. It is correct to say that a long series of acts and omissions evidencing mismanagement which have compromised a complainant’s dignity and career prospects may constitute institutional harassment (see Judgments 3315, under 22, and 3250, under 9), but this was not the case here. As explained above, most of the matters on which the complainant relies cannot be accepted. There was a reasonable explanation for these elements and thus they cannot be said to constitute harassment (see Judgments 3447, under 9, and 2524, under 25). Only two procedural flaws have been established, one of which is partly the consequence of the other: first, the flaw resulting from the extension of the investigation to cover a new allegation differing from that on which it was initiated and, secondly, the inordinate length of the investigation which was partly the result of that.
The Tribunal will examine the ILO’s definition of harassment in order to determine whether these two flaws amount to an act of harassment (see Judgment 2594, under 18). [...]
In this case, it must be recalled that an investigation is not disciplinary in nature, but that its sole purpose is to ascertain all relevant facts in order to determine whether there is sufficient evidence to initiate a disciplinary procedure (see Judgments 2771, under 15, and 2364, under 3). In accordance with paragraph 19 of the Uniform Guidelines for Investigations, both inculpatory and exculpatory information must be examined. The investigation clarified matters with the result that the complainant was not charged with any wrongdoing. He was cleared of any suspicion and his career has not been hampered. This shows that, at all events, the Organization had no wish to harm or harass him. An investigation which has been opened lawfully cannot be termed harassment. Admittedly, the unlawful extension of the investigation, which had already been inadmissibly delayed, made it unduly long. However, it is well settled that an unlawful decision or unsatisfactory conduct is not sufficient in itself to constitute harassment (see Judgments 3233, under 6, and 2861, under 37).
Reference(s)
ILOAT Judgment(s): 2271, 2364, 2524, 2594, 2861, 3233, 3236, 3250, 3315, 3447, 3871
Keywords:
disciplinary procedure; inquiry; institutional harassment; investigation;
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. Moreover, the Tribunal notes that in its report the IAO found, in the complainant’s favour, that the overtime he worked in 2013 was less than in the previous year. A preliminary evaluation would have brought this to light at the outset.
Reference(s)
ILOAT Judgment(s): 2589
Keywords:
disciplinary procedure; inquiry; investigation;
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; inquiry; investigation; right to be heard;
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; investigation;
< previous | 1, 2, 3, 4, 5, 6, 7 | next >
|
