Judgment No. 3347
1. WIPO shall pay the complainant moral damages in the amount of 2,500 Swiss francs.
2. WIPO shall also pay her costs in the amount of 500 Swiss francs.
3. The complaint is otherwise dismissed.
The complainant impugns the decision dismissing her harassment complaint and challenges the lawfulness of the internal appeals and investigation procedures.
inquiry; due process; harassment; investigation
"It is well settled that “an allegation of harassment must be borne out by specific facts, the burden of proof being on the person who pleads it, and that an accumulation of events over time may be cited to support an allegation of harassment” (see Judgment 2100, under 13, and the case law cited therein). Where the allegation of harassment is based on an accumulation of events, the date of the last event is the date for the purpose of calculating the relevant time limits."
ILOAT Judgment(s): 2100
burden of proof; harassment
"Contrary to the Organization’s assertion, the determination of the receivability of an internal appeal itself has no bearing on the receivability of a complaint filed with the Tribunal. The latter is governed by the Tribunal’s Statute. Indeed, a decision on receivability in an internal appeal is reviewable by the Tribunal."
receivability of the complaint; late appeal
"WIPO [...] contends that the complainant’s original submission consisted of a complaint form without an accompanying brief in contravention of Article 6(1)(b) of the Tribunal’s Rules. This position is rejected. In Judgment 3299, under 1, the Tribunal stated:
“The Organization has raised irreceivability as a threshold issue on the ground that when the complaint was filed on 20 April 2011, it was filed without the supporting brief which Article 6(1) of the Rules of the Tribunal requires. The Tribunal has consistently held that a complaint would not thereby be rendered irreceivable because Article 6(2) of the Rules of the Tribunal permits a complaint to be corrected within the time signified by the Registrar (see, for example, Judgment 3225, under 5). The Tribunal has stated that the Rules provide this facility to international civil servants as a means of protecting them against the strict procedures of the Statute and the Rules with which they are not necessarily familiar (see, for example, Judgment 2439, under 4). Article 6(2) directs the Registrar of the Tribunal to call upon the complainant or her or his agent to meet the requirements for correction within 30 days.”
In the present case, the Registrar asked the complainant to correct her complaint form within thirty days by submitting her brief and supporting documents. Before that time had expired, the complainant requested and was granted an extension of time within which she filed the required materials."
ILOAT Judgment(s): 2439, 3225, 3299
correction of complaint
"It is accepted that once the investigation was started it was completed in a timely manner. However, given the serious nature of a claim of harassment, an international organization has an obligation to initiate the investigation itself in a timely manner and the corollary obligation of ensuring that the internal body responsible for investigating and reporting on claims of harassment has the necessary resources to carry out that responsibility (see Judgment 3069, under 12). A delay of five months before the investigation of a claim of harassment is undertaken is unreasonable and, in this case, also contributed to the overall length of the internal appeal process."
ILOAT Judgment(s): 3069
delay; inquiry; harassment; investigation
"Other than in extraordinary circumstances, the appropriate remedy for delay is an award of moral damages. [...] [I]n assessing whether a delay is unreasonable, the complexity of the matter is a relevant consideration."
moral injury; delay
Considerations 19 to 21
"It is well settled that a staff member must have access to all evidence upon which a decision concerning that staff member is based. As the Tribunal observed in Judgment 3264, under 15:
“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’. Additionally ‘[u]nder normal circumstances, such evidence cannot be withheld on grounds of confidentiality’ (see Judgment 2700, under 6). It also follows that a decision cannot be based on a material document that has been withheld from the concerned staff member (see, for example, Judgment 2899, under 23).”
It is equally well settled that a statement in a staff regulation or other internal document that a report is confidential will not “shield a report […] from disclosure to the concerned official”. Moreover, “[i]n the absence of any reason in law for non-disclosure of the report, such non-disclosure constitutes a serious breach of the complainant’s right to procedural fairness” (Judgment 3264, under 16).
The fact that the complainant did not request a copy of the report of the IAOD, which investigated her claim of harassment, is irrelevant. She was entitled to receive a copy of it. Equally, it is not an answer to say that the complainant was given a summary of the report. In addition to the fact that she was entitled to the entire report, the summary did not contain any of the evidence upon which the conclusion was based. It simply stated that “[t]he IAOD investigation has not found facts that support the complainant’s allegations or that show she was entitled to have matters requested by her approved or that she was subjected to harassment, whether through a single incident or as an on-going pattern”. The complainant was effectively precluded from challenging the factual assertions and credibility of the witnesses interviewed and was left not knowing what evidence if any should be marshalled to counter the investigator’s conclusions.
As stated in the case law, a decision cannot be based on a material document that has been withheld from the staff member. In the present case, the failure to provide the complainant with a copy of the investigation report prior to the Director General taking his 25 June decision renders that decision fundamentally flawed. However, as that decision was overtaken by subsequent events, the only remedy today is an award of moral damages."
ILOAT Judgment(s): 2700, 2899, 3264
evidence; inquiry; due process; investigation