Judgment No. 3315
1. The decisions contained in the letter of the Director-General dated 21 October 2011, so far as they relate to HBA Appeal No. 741 and HBA Appeal No. 766, are set aside.
2. The Organization shall expunge the letters of 20 October 2008 and 3 April 2009 from the complainant’s personal file.
3. The Organization shall pay the complainant compensation for moral injury in the amount of 65,000 United States dollars.
4. The Organization shall pay the complainant 3,000 dollars in costs.
5. The complaints are otherwise dismissed.
The complainant seeks damages for the injury arising from breach of due process and institutional harassment.
complaint allowed; decision quashed; due process; breach; harassment; institutional harassment
The Tribunal has stated, in Judgment 3250, under 9, that where a specific intentional example of institutional harassment is not identifiable, a long series of examples of mismanagement and omissions by an organisation, which compromises the dignity and career of an employee, may represent institutional harassment. The complainant’s receivable grounds, which are set out in consideration 21 of this judgment, and the allegations proffered in support, if proved, can individually and compendiously be bases for institutional harassment. Her appeal, which was filed on 25 April 2010, could not have been out of time when one of her grounds of appeal is, in effect, that she had been and still was being prejudicially denied a fair chance of employment in the Organization.
ILOAT Judgment(s): 3250
harassment; institutional harassment
The complainant claims material damages but has adduced no evidence of actual injury as a result of an unlawful act in order to obtain such damages, notwithstanding that the events in question occurred some years before she filed her complaint. Accordingly, the Tribunal does not award material damages. There is no ground for the award of exemplary damages. However, the complainant is entitled to moral damages for the flagrant breach of due process, as well as for the institutional harassment which she sustained. These are grave violations, for which the complainant is accordingly awarded moral damages in the sum of 65,000 United States dollars. She is also awarded 3,000 dollars in costs.
damages; due process; breach; harassment; institutional harassment
Considerations 10-14 and 16
WHO’s Investigation Process revolves around the Headquarters’ Office of Internal Oversight Services (IOS). It makes that Office responsible for fact-finding by investigating allegations against staff members. Accordingly, the document states that the Director-General has given functional independence to the IOS, which is to formulate its investigative programme and the conduct of it. In deciding whether to investigate a complaint, the IOS is to determine whether the matter could be dealt with more appropriately by another entity. The process provides for interviews, including the person against whom the allegation is made, and witnesses. Investigators are required to document the interviews and to ask those interviewed to review the record of the interview and sign it. The investigating authority must then prepare a report containing the established facts and evidence gathered, including statements and documents. The report is to be sent to the Director-General or the Regional Director. If, after reviewing it, the latter decides to initiate disciplinary proceedings, he or she should ask the Director of HRD to make the formal written charge and dispatch it to the staff member with all of the information on which the charge is based. Neither this nor any similar process was followed in the present case.
The Organization explains that the letter of 20 October 2008 was sent to the complainant based on extensive information from her colleague during the harassment investigation and the Regional Director’s analysis of the matter. However, the status of the letter was markedly ambiguous. It can even be reasonably viewed as threatening. Among other things, it stated as follows:
“Of serious concern to the Organization is that staff members, as international civil servants, must observe at all times the standards of conduct as defined in Article 1 of the Staff Regulations and Rule 110. On the basis of the attached allegations from [her colleague], it could be concluded that you have contravened these standards. This could lead to a finding of misconduct pursuant to Staff Rule 110.8, which could result in disciplinary action taken against you further to Staff Rule 1110, including dismissal or summary dismissal.
In view of the gravity of the allegations made against you, and before deciding whether or not to take disciplinary action against you under Staff Rule 1110, please provide your comments on this letter to the undersigned, which is being delivered to you by hand, by 31 October 2008.
Following a review of any comments provided to us within the aforementioned deadline, and subject to any further investigation that is considered to be warranted, you will be notified of the final decision in this matter.”
These statements were made in circumstances where there had been no independent investigation of the allegations. This was coupled with the clear suggestion that in the absence of a satisfactory explanation from the complainant, she could be subjected to disciplinary measures without more being done. In particular, no charges would be formulated identifying precisely the conduct which was said to constitute misconduct and apparently without having an opportunity to answer as contemplated by Staff Rule 1130 and without establishing the investigative procedure which the Organization’s guidance requires. This was a breach of due process. [...]
The Organization states that the Administration previously used the procedure. This, however, is not an acceptable excuse when WHO’s Investigation Process required an investigation and factfinding on the allegations before a letter of that nature was issued.
The Tribunal notes that the allegations on which the letter of 20 October 2008 was issued were circulated to various authorities within WHO. The Organization explains this by stating that they were sent to keep the authorities to whom the complaint against the accused colleague had already been sent apprised of the situation. The allegations contained statements of a personal nature. They were potentially harmful to the complainant’s reputation and, as she states, they were hurtful to her. In these circumstances, the failure to investigate the allegations in accordance with WHO’s own Investigation Process before they were circulated also amounted to a want of fairness and good faith that constituted moral injury which entitles the complainant to compensation. The complainant is entitled to have the letters of 20 October 2008 and 3 April 2009 expunged from her personal file.
In summary, the Organization breached the due process requirements of Staff Rules 1230.1.3 and 1130 and WHO’s Investigation Process. The Organization also breached its duty to provide the complainant with the efficient internal means of redress to which she was entitled. The complaint is well founded on these grounds, which entitles the complainant to damages.