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Confidentiality (905,-666)

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Keywords: Confidentiality
Total judgments found: 7

  • Judgment 4412


    132nd Session, 2021
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decisions not to renew her short-term appointment beyond 31 March 2016 and not to select her for a G-3 position advertised through a vacancy announcement.

    Consideration 14

    Extract:

    The Tribunal relevantly restated in Judgment 3586, consideration 16, that a staff member must, as a general rule, have access to all evidence on which an authority bases or intends to base its decision against her or him, and that, under normal circumstances, such evidence cannot be withheld on grounds of confidentiality, unless there is some special case in which a higher interest stands in the way of the disclosure of certain documents. Such disclosure may not be refused merely in order to strengthen the position of the Administration or one of its officers. Additionally, the Tribunal reiterated, in consideration 17 of that judgment, its consistent case law that the principle of equality of arms must be observed by ensuring that all parties in a case are provided with all the materials an adjudicating body uses in an internal appeal and that the failure to do so constitutes a breach of due process.

    Reference(s)

    ILOAT Judgment(s): 3586

    Keywords:

    confidentiality; due process; evidence; motivation;



  • Judgment 4408


    132nd Session, 2021
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant disputes the lawfulness and outcome of a competition procedure in which she participated.

    Consideration 13

    Extract:

    The fact that the table [of preselected candidates] was produced before the Tribunal in a version that did not show candidates’ names does not alter the fact that it exists.

    Keywords:

    confidentiality; evidence; selection procedure;



  • Judgment 4407


    132nd Session, 2021
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to award her moral damages higher than 20,000 Swiss francs for the moral injury she alleges to have suffered as a result of the personal prejudice and bias she endured during her probation.

    Consideration 4

    Extract:

    With regard to her argument of a breach of confidentiality, the Tribunal finds that the privileged and confidential sharing of the GBA report within the Office of the Legal Counsel, Director-General’s Office, in order to provide advice and assistance to the Director-General, was lawful.

    Keywords:

    confidentiality;



  • 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 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 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 4273


    130th Session, 2020
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainants challenge their classification in the new career structure established following the 2015 five-yearly review.

    Consideration 29

    Extract:

    The complainants seek an award of 2,000 euros each in moral damages. They contend that persons not involved in the procedure were informed by the Administration of their internal appeals without their consent, and that this breach of confidentiality caused them moral injury. They refer to the letter [...], copied to their Head of Department, in which the Head of the Human Resources Department stated that, following the Director-General’s decisions [...], they would be contacted shortly with a view to arranging a career review. That letter did not mention that the decisions [...] were the decisions taken following their internal appeals and did not disclose their content. It was perfectly proper for their Head of Department to be informed by the Organization of their upcoming career reviews.

    Keywords:

    confidentiality;


 
Last updated: 22.09.2021 ^ top