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Witness (798,-666)
You searched for:
Keywords: Witness
Total judgments found: 17
Judgment 4770
137th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him for misconduct.
Consideration 6
Extract:
According to the Tribunal’s case law, the cross-examination of witnesses is not a requirement for the lawfulness of the investigation and the disciplinary proceedings, provided that due process be ensured by other means. In the present case, the Tribunal is satisfied that due process was respected, despite the fact that the complainant had no opportunity to cross-examine the witnesses. Indeed, he was informed of the precise allegations made against him and was provided with the verbatim records of the statements of the witnesses. He was thus able to confront and test the evidence, even though he was not present when the statements were made and was not able to cross-examine the witnesses who made them. Moreover, the investigation relied not only on the statements rendered by three witnesses, but also on documentary evidence.
Keywords:
disciplinary procedure; due process; investigation; witness;
Judgment 4679
136th Session, 2023
ITER International Fusion Energy Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to reject her complaint of harassment, discrimination and abuse of authority.
Consideration 5
Extract:
The applicable staff rules did not provide for cross-examination of the accused person and/or of the witnesses, nor do they require verbatim records of the interviews, which is not contrary to the case law (see Judgments 4579, consideration 3, and 2771, consideration 18). Therefore, the allegations that there were no verbatim records of the interviews and that the complainant was not allowed to cross-examine the accused persons and the witnesses fail. The case law requires that the person who lodged a harassment complaint be informed of the content of the interviews and be allowed to comment on them (see Judgments 4111, consideration 4, 4110, consideration 4, 4109, consideration 4, 4108, consideration 4, and 3875, consideration 3).
[…]
[T]he complainant was provided with the investigation report, together with the minutes of the testimonies attached to it. Even though she received the investigation report only after she had lodged her internal appeal, she was given ten further working days […] to supplement her appeal. She was asked to confirm […] whether she wished to avail herself of this option, and she did not. Therefore, she was allowed to further comment on the investigation report, and she chose not to. Considering that she was able to rely on the investigation report during the appeal proceedings, the Tribunal is satisfied that her right to due process was not breached (see Judgment 4406, consideration 8).
Reference(s)
ILOAT Judgment(s): 2771, 3875, 4108, 4109, 4110, 4111, 4406, 4579
Keywords:
duty to inform; duty to inform about the investigation; harassment; investigation report; witness;
Judgment 4615
135th Session, 2023
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her appointment.
Considerations 20 and 23
Extract:
The case law relied upon by the organisation (see Judgment 2771, consideration 18, cited below), correctly interpreted, does not allow exceptions to the necessity of a written record being made available to the concerned official, but only approves of a written record as an alternative to cross-examination or to a verbatim record. Indeed, the Tribunal held in that judgment:
“The complainant points to cases in which the Tribunal observed that the complainant had not been present when statements were taken and not given the opportunity to cross-examine witnesses [...], to object to evidence [...] or to have a verbatim record of the evidence [...] These are matters that, in the cases concerned, would have ensured that the requirements of due process were satisfied. However, they are not the only means by which due process can be ensured. In the present case, the complainant was informed of the precise allegations made against him [...], and provided with the summaries of the witnesses’ testimonies relied upon by the Investigation Panel, even if not verbatim records. He was able to and did point out [...] inconsistencies in the evidence, its apparent weaknesses and other matters that bore upon its relevance and probative value, before the finding of unsatisfactory conduct was made [...] In this way, the complainant was able to confront and test the evidence against him, even though he was not present when statements were made and not able to cross-examine the witnesses who made them.”
In the precedent quoted above, the complainant was informed of the content of the witnesses’ testimonies by written records before the decision; in the present case, the complainant acknowledged the content of the witnesses’ testimonies by means of the Advisory Board’s report, not during the proceedings but only when that report was provided to her attached to the termination decision, that is to say at a stage when she could no longer usefully comment on them.
It can be inferred from the quoted case law that two principles must be respected in an adversarial procedure: (i) not only must the oral evidence gathered be recorded in writing, even though not necessarily by a verbatim record; (ii) but also any evidence gathered must be submitted to the person concerned, for her or his comment, before the decision is adopted.
In the present case, the organisation failed to comply with both principles, as there was no written record of Mr B.’s statement and this statement was not disclosed to the complainant before she was notified of the decision endorsing the Advisory Board’s report.
[…]
In light of consideration 20 […], the Advisory Board’s recommendation is flawed with regard to the assessment of offensive act no. 1 for lack of written record. However, this flaw is not decisive in order to declare that the Advisory Board’s recommendation was unlawful in its entirety. As noted in considerations 21 and 22 [...], the Advisory Board’s finding that the complainant’s conduct amounted to harassment was based on multiple episodes and related evidence sufficient for the purpose of the adoption of measures aimed at the protection of the victim of harassment. Therefore, the Board’s report deserves considerable deference (see Judgments 4488, consideration 7, and 4180, consideration 7).
Reference(s)
ILOAT Judgment(s): 2771, 4180, 4488
Keywords:
disciplinary procedure; evidence; report of the internal appeals body; witness;
Consideration 22
Extract:
[T]he Tribunal observes that the right of defence of the complainant was not affected by the fact that the officials heard as witnesses were not named. It was sufficient for the complainant to know the content of the statements and it was not necessary for her to know the witnesses’ names. Furthermore, the Advisory Board redacted some names for reasons of confidentiality, since some officials feared retaliation by the complainant: this was a reasonable step to strike a balance between the right of defence of the accused person and the right of the witnesses to be protected against retaliation.
Keywords:
disclosure of evidence; due process in disciplinary procedure; witness;
Judgment 4579
135th Session, 2023
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to discharge him.
Consideration 3
Extract:
[A]ccording to the Tribunal’s case law, the verbatim record of the oral evidence gathered during disciplinary proceedings is not deemed strictly necessary. It is sufficient that the person charged in disciplinary proceedings be informed of the precise allegations made against her or him, provided with the summaries of the witnesses’ testimonies relied upon by the body in charge of the investigation, and enabled to comment on them (see Judgment 2771, consideration 18).
Reference(s)
ILOAT Judgment(s): 2771
Keywords:
due process; evidence; investigation; witness;
Judgment 4549
134th Session, 2022
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the Director-General’s decision to reject her harassment complaint.
Consideration 9
Extract:
The failure, without valid grounds and notwithstanding the discretion conferred by paragraph 9 of Article 13.4 of the Staff Regulations, to hear witnesses potentially supportive of the complainant’s allegations constituted a breach of due process (see Judgment 4111, consideration 3). The complainant’s allegation is therefore well founded. As this error of law vitiates the validity of the investigation report, which forms the basis of the impugned decision, that decision must be set aside, without there being any need to address the complainant’s other pleas (see Judgments 4313, consideration 7, and 4110, consideration 5).
Reference(s)
ILOAT Judgment(s): 4110, 4111, 4313
Keywords:
due process; harassment; investigation; investigation report; testimony; witness;
Judgment 4453
133rd Session, 2022
World Tourism Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to summarily dismiss him.
Consideration 6
Extract:
These remarks do not come to grips with what Mr R. said nor provide a sound basis for rejecting his evidence. To say someone is “evidently personally offended by what he considers to be an attack to his mandate” is firstly equivocal and secondly and more importantly does not provide, of itself, a firm foundation for saying that Mr R.’s account of past events cannot, or even should not, be accepted as true. It is not at all obvious that if a person is personally offended in the circumstances just discussed, that would “[prevent] [her or] him from being a reliable and objective witness” let alone someone who is giving a false account of past events.
Keywords:
evidence; witness;
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 4313
130th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former official of the International Labour Office, challenges the decision to dismiss her harassment grievance.
Considerations 5-7
Extract:
[T]he fact that the complainant was ultimately able to obtain a copy of the witness statements during the proceedings before the Tribunal does not remedy the flaw in the investigation procedure. 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 2767, cited by the ILO, and Judgment 3117, under 11), that is not so where the document in question is of vital importance having regard to the subject matter of the dispute (see Judgments 2315, under 27, 3490, under 33, 3831, under 16, 17 and 29, and 3995, under 5). [...]
The ILO also refers to Judgment 3071, in which the Tribunal held that the failure to disclose witness statements gathered in the course of a harassment investigation could have been corrected in the proceedings before the Joint Advisory Appeals Board. The Organization points out that the new procedure for the administrative resolution of harassment grievances does not allow internal appeals to be filed with the Joint Advisory Appeals Board when an investigation is required and seeks to argue that it may therefore rectify the investigators’ omission during the proceedings before the Tribunal.
The Tribunal cannot accept that reasoning. As discussed in consideration 3 [...], one of the advantages of the internal appeal procedure is that it allows the organisation to rectify certain irregularities in time. This is why, in Judgment 3071, the Tribunal stated that the witness statements gathered in the course of the investigation could have been disclosed to the person concerned during the proceedings before the Joint Advisory Appeals Board. In that case, the evidence was disclosed before the final decision was taken and thus the adversarial principle was observed. The fact that such proceedings are not available means that it is no longer possible to remedy the flaw arising from the late disclosure of witness statements since they constitute crucial evidence on which the impugned decision rests and, by definition, proceedings before the Tribunal take place only a posteriori.
It should be borne in mind that, in the two judgments referred to by the Organization, the Tribunal emphasised that a staff member is entitled to be apprised of all material evidence that is likely to have a bearing on the outcome of her or his claims (see Judgment 2767, under 7(a)) and that failure to disclose that evidence constitutes a serious breach of the requirements of due process (see Judgment 3071, under 37). Those two judgments are fully consistent with the Tribunal’s settled case law according to which, in the context of an investigation into allegations of harassment, a complainant must have the opportunity to see the statements gathered in order to challenge or rectify them, if necessary by furnishing evidence (see Judgments 3065, under 8, 3617, under 12, 4108, under 4, 4109, under 4, 4110, under 4, and 4111, under 4).
Reference(s)
ILOAT Judgment(s): 2315, 2767, 3065, 3071, 3117, 3490, 3617, 3831, 3995, 4108, 4109, 4110, 4111
Keywords:
due process; harassment; investigation report; witness;
Judgment 4291
130th Session, 2020
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the dismissal of his complaint of harassment and abuse of authority.
Consideration 14
Extract:
Essentially, the “flaws” [the complainant] has identified are that they did not agree with his perceptions. He has not submitted any evidence that the investigators “failed to obtain, refused to accept or ignored relevant evidence, took account of irrelevant evidence or misconstrued the evidence” (see Judgment 3447, under 6).
Reference(s)
ILOAT Judgment(s): 3447
Keywords:
inquiry; investigation; witness;
Judgment 4241
129th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaint challenges the decision to dismiss her complaint of harassment as unsubstantiated.
Considerations 11-12
Extract:
Although the complainant did not provide a list of witnesses in her harassment complaint, she stated therein that she had named witnesses throughout that complaint wherever relevant. She identified about twenty-four persons with reference to various allegations of harassment which she proffered. Initially, between October and November 2016, the IOS interviewed seven of those persons and then transmitted a summary of their testimony to the complainant in December 2016 for her comment. In her response, dated 13 January 2017, the complainant noted that the IOS had not interviewed her or other witnesses whom she had identified. In March 2017, the IOS called five other witnesses. It called the complainant for oral testimony in May 2017. The IOS did not call some of the persons whom the complainant had identified concerning specific allegations, the UNAIDS Chief of Staff and the UNAIDS Executive Director in particular. This was in breach of proper procedure, particularly given that the IOS has not explained why it did not hear those persons (see Judgment 4111, consideration 3).
There was also a breach of proper procedure when, notwithstanding the clear discrepancies between critical aspects of the evidence given by the complainant and the three persons whom she accused of harassment (some of which the complainant had detailed in her response of January 2017 and later in her oral testimony), the IOS did not call those persons again to clear the discrepancies (as contemplated by Article 24 of the Investigation Process) in order to determine the truth and properly establish the facts. Moreover, the IOS erred when contrary to the indication contained in paragraph 3.1.5 of the Policy, that harassment is normally prolonged and persistent, as well as the settled principle that an accumulation of events over time may be cited in support of an allegation of harassment, the IOS rejected each allegation of harassment separately without considering whether cumulatively they provided proof of harassment.
Reference(s)
ILOAT Judgment(s): 4111
Keywords:
due process; evidence; harassment; inquiry; investigation; witness;
Judgment 4227
129th Session, 2020
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him for misconduct.
Consideration 12
Extract:
The third ground is that not all those who should have been interviewed were in fact interviewed. The complainant identifies five such people. The defendant organization points to the fact that he did not proffer the names of these five people when asked towards the conclusion of his interview on 17 July 2014 whether there was anyone else the investigating officers should speak to and also says, correctly, the complainant has failed to demonstrate that the decision not to interview these five people flawed, in a material way, the investigation process.
Keywords:
inquiry; investigation; procedural rights during investigation; witness;
Judgment 4110
127th Session, 2019
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former official of the ILO, alleges that he was subjected to harassment and that the investigation into his allegations of harassment was flawed.
Consideration 3
Extract:
The parties do not dispute that the complainant had requested that the colleagues who had also filed a harassment grievance be heard as witnesses, which was refused. [...] In the present case, the refusal, without valid grounds, to hear witnesses with regard to the complainant’s allegations constitutes a breach of due process.
Keywords:
adversarial proceedings; due process; evidence; harassment; inquiry; investigation; right to be heard; testimony; witness;
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.
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 3312
117th Session, 2014
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The disciplinary sanction taken by the Executive Head departing from the recommendation of a disciplinary board is cancelled for lack of sufficient reasons.
Consideration 3
Extract:
[T]he Tribunal has consistently held that even where there is a single injurious action, an allegation of harassment is a serious matter which must be investigated thoroughly in order to determine whether the words may reasonably be true on the facts as found from the surrounding circumstances. (See Judgment 2553, under 6, and Judgment 2771, under 15.) The Tribunal finds that the [Disciplinary Advisory Board] should have called the available witnesses to assist it to carry out a thorough investigation in the case, particularly given that the facts were contested on the disparate versions given by the parties.
Reference(s)
ILOAT Judgment(s): 2553, 2771
Keywords:
harassment; investigation; witness;
Judgment 3200
115th Session, 2013
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose on her the disciplinary measure of demotion.
Consideration 9
Extract:
The complainant was demoted from grade P-3 to grade P-2 on the grounds that she had harassed and intimidated Ms A., a staff member over whom she had authority.
When the complainant asked towards the beginning of the interview who was accusing her she was told, in effect, that this information would emerge from the questions. This is not what paragraph 5.2 requires. In order to understand what the allegations are and how to respond and frame a defence, an accused would need to be told who had made the allegations. The identity of the accuser is a significant piece of information necessary to inform the accused of the factual context in which the accused’s alleged conduct was said to have occurred. The obligation to inform the accused of the allegations includes an obligation to identify the accuser as part of the factual matrix of what constitutes “the allegation”.
Keywords:
disclosure of evidence; opening of an investigation; procedural rights during investigation; witness;
Consideration 11
Extract:
"Paragraph 5.2 [of the OSDI Quality Assurance Manual] must be interpreted in a manner consistent with the fundamental right of due process to know the name of the accuser except in those circumstances where revealing the identity of the accuser could undermine the integrity of the investigation."
Reference(s)
Organization rules reference: Paragraph 5.2 of the OSDI Quality Assurance Manual
Keywords:
adversarial proceedings; disclosure of evidence; duty to inform; opening of an investigation; procedural rights during investigation; witness;
Consideration 14
Extract:
As for the argument that the investigation was biased, it must be pointed out that the investigators have some discretion in
questioning witnesses, and there is no rule requiring standardised questions.
Keywords:
evidence during investigation; witness;
Judgment 3108
113th Session, 2012
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
An internal appellate body is the primary fact-finding body in the internal appeals process. It is the body that sees and hears the witnesses and must assess the reliability of the evidence adduced. A full appreciation of the evidence can only occur in circumstances where individuals whose interests may have been adversely affected have an opportunity not only to be present to hear the evidence but also to test the evidence through cross-examination. As the Tribunal stated in Judgment 2513, under 11, "in the absence of special circumstances such as a compelling need to preserve confidentiality, internal appellate bodies such as the JAB must strictly observe the rules of due process and natural justice and [...] those rules normally require a full opportunity for interested parties to be present at the hearing of witnesses and to make full answer in defence".
Reference(s)
ILOAT Judgment(s): 2513
Keywords:
due process; evidence; internal appeals body; witness;
Judgment 2014
90th Session, 2001
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 17(D)
Extract:
The complainant argues that his dismissal was based on unsubstantiated accusations and evidence that was not made available to him. "It is true that confidential information given to the auditors was not made known to him, the Joint Disciplinary Committee or the Joint Appeals Board. This puts that evidence in the realm of unsubstantiated hearsay which should not have been relied on. It is contrary to due process to require an accused staff member to answer unsubstantiated allegations made by unknown persons. The staff member is entitled to confront his or her accusers. In the present case, if the organization was not willing to disclose the identity of the complainant's accusers, and had no other independent evidence to rely on, the charges should not have been brought."
Keywords:
admissibility of evidence; adversarial proceedings; communication to third party; confidential evidence; disciplinary procedure; disclosure of evidence; due process; due process in disciplinary procedure; duty to inform; evidence; witness;
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