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Investigation report (904,-666)

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Keywords: Investigation report
Total judgments found: 15

  • Judgment 4347


    131st Session, 2021
    Pan American Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision of the Director of PAHO to impose on him the disciplinary measure of reassignment with reduction in grade.

    Consideration 21

    Extract:

    Regarding the non-disclosure of the investigation report, the Tribunal recalls that in Judgment 2229, consideration 3(b), it stated: “According to general principles of law, the 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. Under normal circumstances, such evidence cannot be withheld on the grounds of confidentiality.” In the present case, by a letter of 8 August 2014, the complainant was provided with the list of charges and the 38 annexes of evidence on the basis of which the list had been compiled (including all witness statements and relevant emails); by a letter of 9 June 2015, he was provided with the confirmation of his misconduct and, in the attachment to that letter, with a 16-page document providing “the basis for the findings and conclusions regarding [his] lack of compliance with the established standards”; moreover, he was also provided with the Board of Appeal’s preliminary recommendation and final report in the impugned decisions (letters of 27 December 2017 and 22 June 2018 respectively). The Tribunal is therefore satisfied that, although PAHO, relying on paragraphs 68 and 69 of the Investigation Protocol, did not provide the complainant with a copy of the investigation report, he was provided with all evidence related to the charges and the specific evidence on which the final decision was based, and that he was given ample opportunity to respond to the allegations against him. His pleas in this respect are therefore unfounded.

    Reference(s)

    ILOAT Judgment(s): 2229

    Keywords:

    confidentiality; disclosure of evidence; investigation report;



  • 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 4311


    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:

    The Tribunal has recently ruled that “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 Judgments 3757, under 6, and 3872, under 2).

    Reference(s)

    ILOAT Judgment(s): 3757, 3872

    Keywords:

    inquiry; investigation; investigation report; judicial review;



  • 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 11

    Extract:

    It is not disputed that the complainant had never seen the IAO’s investigation report prior to filing his complaint with the Tribunal on 19 June 2017. Having regard to the Organization’s explanations, it seems that the report was not provided to him until 6 September 2017.
    The Joint Advisory Appeals Board rightly considered that, in those circumstances, the adversarial principle and, more particularly, the complainant’s rights of defence had been breached.
    As the Tribunal has repeatedly held, a staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) a decision affecting her or him personally. Such evidence cannot be withheld on grounds of confidentiality unless there is some special case in which a higher interest stands in the way of disclosure (see Judgments 3732, under 6, and 3755, under 10), which was not the case here.
    The fact that the complainant was ultimately able to obtain the IAO investigation report during the proceedings before the Tribunal does not, in this case, remedy the flaw in the procedure. While the case law recognises that, in some cases, the non-disclosure of evidence can be corrected when this flaw is subsequently remedied, including in proceedings before the Tribunal (see, for example, Judgment 3117, under 11), that is not the case where the document in question is of vital importance having regard to the subject matter of the dispute, as it is here (see Judgments 2315, under 27, 3490, under 33, 3831, under 16, 17 and 29, and 3995, under 5).

    Reference(s)

    ILOAT Judgment(s): 2315, 3117, 3490, 3732, 3755, 3831, 3995

    Keywords:

    confidentiality; due process in disciplinary procedure; investigation report;



  • Judgment 4296


    130th Session, 2020
    Organisation for the Prohibition of Chemical Weapons
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant requests that allegedly offensive remarks be removed from an investigation report.

    Judgment keywords

    Keywords:

    cause of action; complaint dismissed; harassment; impugned decision; investigation report;



  • Judgment 3848


    124th Session, 2017
    International Organization for Migration
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to renew his special short-term contract for serious misconduct.

    Consideration 5

    Extract:

    [T]here is nothing in the record indicating if or when the Director General determined that the serious misconduct had been established beyond a reasonable doubt. If he did rely on the conclusion reached in the Investigation Report, that reliance was misplaced. Such a conclusion was clearly beyond the scope of the Investigation Team’s mandate and Terms of Reference that were limited to fact-finding. [...] This was the expression of an opinion that does not belong in a fact-finding report, was highly prejudicial to the complainant and undermines the fairness of the reporting.

    Keywords:

    inquiry; investigation; investigation report; serious misconduct; standard of proof;



  • 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 11

    Extract:

    Similarly, the complainant is not justified in contending that the procedure was unlawful because the IOS investigator did not submit the draft report to him for comment before forwarding it to the Director-General. Indeed, as the investigator had interviewed the complainant twice in the course of the investigation and had informed him of the evidence gathered during it, he had been given a genuine opportunity to challenge the accusations levelled at him.

    Keywords:

    inquiry; investigation; investigation report;



  • Judgment 3365


    118th Session, 2014
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision dismissing his harassment complaint and his allegations of denial of justice.

    Consideration 21

    Extract:

    The complainant deplores the fact that he did not receive the IOS report. It is, however, plain from the submissions in the file that no report was drawn up in this case, as is permissible under the policy on harassment when the IOS considers allegations to be manifestly groundless. In these circumstances WHO is obliged only to inform the complainant of the IOS findings. This was done by the Director-General’s decision of 22 December 2010.

    Keywords:

    inquiry; investigation; investigation report;



  • Judgment 3364


    118th Session, 2014
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant successfully impugns on the grounds of a procedural flaw the decision to maintain his dismissal for misconduct.

    Consideration 26

    Extract:

    "Contrary to the argument put forward by WHO, the fact that the complainant admitted the truth of the facts imputed to him did not dispense it from the obligation to draw up the report provided for in the relevant provisions. A “transcript of the interview” cannot take the place of such a report."

    Keywords:

    due process in disciplinary procedure; investigation report;



  • 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 13

    Extract:

    "The complainant alleges that he was not given a copy of the Ethics Officer’s investigation report and the records of witness interviews. 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” (see Judgment 2229, under 3(b))."

    Reference(s)

    ILOAT Judgment(s): 2229

    Keywords:

    confidential evidence; duty to inform; inquiry; investigation; investigation report; official; right;



  • Judgment 3216


    115th Session, 2013
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests her performance appraisal for its content and on the basis of what she considers to be procedural flaws.

    Judgment keywords

    Keywords:

    complaint allowed; decision quashed; investigation report; performance evaluation; procedural flaw;



  • Judgment 2773


    106th Session, 2009
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 9

    Extract:

    "While internal investigative reports cannot be the sole basis for disciplinary action against a staff member, they may nevertheless serve as a basis for initiating disciplinary proceedings if they yield indications of irregularities justifying this (see, in this respect, Judgment 2365, under 5(e)). When the organisation concerned initiates proceedings in the light of such reports, it is not itself obliged to repeat all the investigations recorded in these documents, but must simply ensure that the person in question is given the opportunity to reply to the findings they contain so as to respect the rights of defence."

    Reference(s)

    ILOAT Judgment(s): 2365

    Keywords:

    adversarial proceedings; disciplinary charges; disciplinary procedure; evidence; inquiry; investigation; investigation report; right to reply;



  • Judgment 2365


    97th Session, 2004
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5(e)

    Extract:

    [The complainant] has misunderstood the internal nature of the investigative report. Since the latter was requested and produced as part of an internal audit, it cannot on its own serve as conclusive evidence against a staff member. On the other hand, it may yield indications of irregularities justifying the initiation of a disciplinary procedure, in the course of which the person charged must be allowed all admissible means of defence. The Director-General did not abuse his discretionary authority by considering that the investigative report contained indications which merited further scrutiny in the context of a disciplinary procedure, even on the assumption that he had been unable to study the report in full himself.

    Keywords:

    disciplinary charges; inquiry; investigation; investigation report;



  • Judgment 2261


    95th Session, 2003
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 13

    Extract:

    There is no substance to the allegation of failure of due process. In particular, the mission report which gave the Organization information on which to base the decision to charge him, was a preliminary investigative tool and the complainant had no right to review its contents prior to the decision being made that the disciplinary procedure should be started. Once that procedure was under way, the complainant was given ample communication of the case against him and was afforded full opportunity to answer and make his defence. It was no breach of the principle of good faith for the Organization to ask the complainant for a statement of his activities and subsequently to use such statement, which was entirely exculpatory, as evidence of his deliberate attempt to mislead the investigation, which it manifestly was.

    Keywords:

    adversarial proceedings; disciplinary charges; due process in disciplinary procedure; inquiry; investigation; investigation report;



  • Judgment 2229


    95th Session, 2003
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 3(B)

    Extract:

    "In accordance with the principles relating to the protection of information, staff members are entitled, even outside the context of a dispute, to have access to significant information concerning them which is in the possession of the administration [...] This applies a fortiori in the context of a procedure in which such information is used to support a decision affecting a staff member. There are, however, special cases in which higher dictates preclude its disclosure (on this issue, see Judgment 1756, under 10(b)). A provision [...] which stipulates that the reports of joint disciplinary committees or other boards of enquiry are confidential, cannot be construed as preventing the disclosure of such reports to a staff member adversely affected by a measure taken against him. otherwise, the higher principle of the right to be heard would be violated."

    Reference(s)

    ILOAT Judgment(s): 1756

    Keywords:

    confidential evidence; inquiry; investigation; investigation report; right to reply;


 
Last updated: 15.09.2021 ^ top