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Judgment No. 2771

Decision

1. The Director-General's decision of 30 July 2007 is set aside to the extent only that it is based on a finding of harassment on the part of the complainant relating to the reassignment of his subordinate's country responsibilities.
2. The matter is remitted to the Director-General to consider an appropriate penalty in accordance with consideration 25.
3. The complaint is otherwise dismissed.

Consideration 14

Extract:

"In support of his argument that he was denied due process by the [Investigation] Panel the complainant relies on Judgment 2254 where it was said that, "before deciding a disciplinary sanction, an organisation should inform the person concerned that disciplinary proceedings have been initiated and should allow him ample opportunity to take part in adversarial proceedings, in the course of which he is given the opportunity to express his point of view, put forward evidence and participate in the processing of the evidence submitted in support of the charges against him". That statement relates to the situation where disciplinary proceedings have been initiated. However, and as its name suggests, the function of the Panel was to investigate. Contrary to the arguments of the complainant, the requirement that it "assess the reliability of the source or sources of information and the evidence submitted" does not render it a judicial body. The assessment of the reliability of evidence is a function that is properly described as "judicial" only when reposed in a judicial body."

Reference(s)

ILOAT Judgment(s): 2254

Keywords

evidence; appraisal of evidence; inquiry; disciplinary procedure; sexual harassment; investigation; evidence during investigation

Consideration 15

Extract:

"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."

Reference(s)

ILOAT Judgment(s): 2475

Keywords

procedure before the tribunal; evidence; appraisal of evidence; inquiry; adversarial proceedings; right to reply; due process; organisation's duties; respect for dignity; disciplinary procedure; investigation

Consideration 17

Extract:

"Hearsay evidence is not necessarily inadmissible. The question is always one of its probative value."

Keywords

evidence; admissibility of evidence; appraisal of evidence

Consideration 18

Extract:

"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 (for example, Judgments 999 and 2475), to object to evidence (for example, Judgment 2468) or to have a verbatim record of the evidence (for example, Judgment 1384). 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 to the Assistant Director-General and, later, the Director of the Human Resources Management Division, 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. Moreover, the complainant had and exercised a right of appeal to the Appeals Committee. There is no suggestion that he was in any way circumscribed in the way his appeal was conducted. Accordingly, the process, viewed in its entirety from the making of the subordinate's harassment complaint until the Committee reported to the Director-General, was one that satisfied the requirements of due process."

Reference(s)

ILOAT Judgment(s): 999, 1384, 2468, 2475

Keywords

evidence; testimony; inquiry; adversarial proceedings; right to reply; due process; organisation's duties; disciplinary procedure; investigation

Consideration 24

Extract:

"There is no evidence of improper motive or unequal treatment in the performance of what was a regular and routine management function. Accordingly, there is no basis for a finding of harassment (see Judgment 1732)."

Reference(s)

ILOAT Judgment(s): 1732

Keywords

grounds; equal treatment; organisation's duties; respect for dignity; official

Judgment keywords

Keywords

complaint allowed; decision quashed; case sent back to organisation; disciplinary measure; sexual harassment

Consideration 2

Extract:

The first two charges of harassment upon which the finding of unsatisfactory conduct was based related to events which, according to the subordinate, occurred during a mission which she and the complainant undertook in Latin America in November 2003. The subordinate claimed that, during the mission, the complainant began complimenting her on her clothing and physical appearance, arranged hotel reservations so that they would have rooms on the same floor, suggested on most evenings that she join him in his room for a drink and alluded most mornings to the fact that she had slept alone. She claimed that, on 16 November 2003 in San Salvador, the complainant became agitated when he did not find her in her room, arranged for hotel staff to open her room and shouted at her in the hotel lobby in front of everyone. The second event occurred, according to the subordinate, in Honduras on 18 November 2003 when the complainant embraced and kissed her in the hallway of their hotel. [...]

Keywords

evidence; sexual harassment

Consideration 5

Extract:

Before dealing further with the complainant’s arguments, it is convenient to refer to the content of the Policy. The Policy defines “harassment” as meaning:
“any improper behaviour by an FAO staff member […] that is directed at, and is offensive to, another individual and which that staff member knew or ought reasonably to have known would be unwelcome. It comprises objectionable conduct or comment made on either a one-time or continuous basis that demeans, belittles, or causes personal humiliation or embarrassment to an individual.”
There are then set out examples of harassment, including “degrading public tirades by a supervisor or colleague”. Additionally, the definition sets out what is included in the notion of “sexual harassment”. It is unnecessary to refer to those examples as it is clear that, if the incident in the hallway of the hotel in Honduras occurred, it constitutes sexual harassment. However, the complainant challenges the finding in relation to the incident in San Salvador on the basis that the FAO held a single incident to constitute harassment, whereas the definition refers to “public tirades”. This argument must be rejected. The definition allows that harassment may consist of a single objectionable act that demeans or causes embarrassment. The alleged incidents in the hotel lobby in San Salvador and in the hallway of the hotel in Honduras satisfy that test.

Keywords

evidence; sexual harassment

Consideration 23

Extract:

As is usual in relation to events of the kind alleged to have occurred in the hallway of the hotel in Honduras, the only direct evidence was that of the subordinate herself. The charge in relation to this matter depended on her credibility and that of the complainant. To some extent, the subordinate’s credibility was bolstered by evidence that she reported the incident to her husband in a telephone call the next morning. That evidence, albeit that there were no independent witnesses, was sufficient to support the finding of sexual harassment.

Keywords

evidence; sexual harassment



 
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