Judgment No. 4035
1. The decision of the Director-General of UNESCO of 16 January 2017 is set aside to the extent that it limited compensation for the injury suffered by the complainant to 53,400 United States dollars.
2. UNESCO shall pay the complainant, in addition to the sum already awarded pursuant to the aforementioned decision of 16 January 2017, moral damages in the amount of 25,000 euros.
3. It shall also pay her 1,000 euros in costs.
4. All other claims are dismissed, as is the application to intervene.
The complainant accuses her former supervisor of moral harassment.
complaint allowed; decision quashed; harassment
Considerations 4, 5, 7
The complainant objects to the fact that the Director-General, having recognised that the decision to close the case on her complaint of moral harassment had been wrong, failed to initiate the investigation for which item 18.2 of the Human Resources Manual on anti-harassment policy provides when the preliminary assessment does not culminate in a decision to close the case.
However, like the Appeals Board, the Tribunal considers that it was by that stage no longer possible to conduct such an investigation, not only because the Director of the Office had left the Organization, but also because of the time that had elapsed since the incidents in question, which in particular made it difficult to gather reliable testimony from witnesses as to whether those incidents occurred and how third parties may have perceived them.
The Tribunal has already found in similar cases that when a harassment case has been wrongly closed, it is not appropriate to order that an investigation be re-opened if that course would raise practical difficulties of this nature (see, for example, in another case concerning a UNESCO official, Judgment 3639, under 8 to 10).
Furthermore, the Tribunal came to the same conclusion in its recent Judgment 3935, delivered in public on 24 January 2018, in which it ruled on a complaint filed by the complainant’s immediate supervisor at the material time, Mr E. Z., who likewise considered that the Director of the Office had harassed him.
This situation means that, as in the case leading to aforementioned Judgment 3935, it is impossible for the Tribunal, in the present case, to reach an informed decision on the merits of the parties’ submissions as to the existence and, as the case may be, the effects of the harassment alleged by the complainant. Neither the parties’ briefs nor the evidence tendered allow the Tribunal to rule on these points with certainty; this would be possible only if the findings of an investigation that was duly carried out at the material time were available.
Thus, although the complainant alleges, inter alia, that she was unduly divested of the substance of her responsibilities, unlawfully placed in a hierarchical position that was not commensurate with her grade and subjected to denigration of her work and other humiliating statements and conduct, the evidence on file does not permit a determination as to whether some of these incidents actually took place and whether, viewed as a whole, they constituted harassment or instead resulted from acceptable management decisions or sheer tactlessness. Furthermore, whilst the complainant plainly had a very difficult relationship with the Director of the Office, that circumstance, which may well be explained by work-related conflicts or even by purely personal antagonism, does not in itself support a finding that the complainant was, as she alleges, a victim of systematic discrimination, retaliation or other conduct amounting to harassment. [...]
Nevertheless, the fact that it is impossible for the complainant to have her internal complaint of harassment examined owing to the failure to conduct an investigation at the time of the incidents constitutes a serious violation of her right to effective means of redress. It has caused her considerable moral injury which, in the Tribunal’s view, justifies a higher amount of damages than that already awarded by the Director-General in the impugned decision.
ILOAT Judgment(s): 3639, 3935
moral injury; inquiry; harassment; investigation
In the circumstances of the case, a hearing of Mr E. Z. – which the complainant has requested in her complaint form although she has not formally requested oral proceedings – would not establish whether the complainant’s allegations were well-founded, especially given that the conflict characterising his own relationship with the Director of the Office would inevitably cast doubt on the objectiveness of his testimony. The Tribunal does not therefore consider it necessary to order this hearing.
[A]n official’s right to be informed of the composition of the Appeals Board, the main purpose of which is to enable members of the Board to be recused, does not entitle her or him to be given the names of the Administration’s representative and observer, who are not members of the Board.
right to information; composition of the internal appeals body
Neither can the Tribunal accept the complainant’s argument of “arrogation by the Administration of medical expertise”, which relates to the statement made by the Administration in the reply brief that it submitted to the Appeals Board that she suffered from a “feeling of persecution”. Indeed, it cannot be inferred from this statement, as the complainant does, that the Organization thus intended to make a medical assessment of her state of health and to insinuate that she suffered from mental health problems.
appraisal of facts; illness
[T]he complainant’s contention that in this case UNESCO breached the time limits prescribed in the provisions governing the appeals procedure and that in general the procedure was excessively long is well founded.
The evidence shows that rather than being held, as paragraph 14 of its Statutes stipulates, “not later than two months after [receipt of the Administration’s] reply”, the Appeals Board’s hearing was not held until 17 March 2016, though the reply had been submitted on 11 September 2014, over a year and a half earlier. Moreover, paragraph 19 of those Statutes provides that the Appeals Board’s report must be forwarded to the Director-General and a copy sent to the official “as soon as possible”, but the report was not in fact issued until 30 June 2016 and was forwarded only on 7 July, more than three and a half months after the hearing, which does not seem consistent with the requirement stipulated in paragraph 19. Lastly, as stated above, the Director-General’s final decision was taken on 16 January 2017, more than six months after the Appeals Board delivered its report, whereas paragraph 20 of the Statutes provides that the Director-General “shall make a decision thereon as soon as possible”.
It is true that, as UNESCO rightly points out, the delays identified above were partly attributable to the complainant, who, amongst other things, requested extensions of time limits for filing her own submissions, and that they can also be explained by the unusual complexity of the case. It should likewise be borne in mind that the Director-General’s final decision was preceded by discussions with the complainant aimed at reaching a settlement, which obviously delayed its adoption.
Nevertheless, the Organization was obliged, in accordance with the principle tu patere legem quam ipse fecisti, to adhere more strictly to the procedural time limits laid down in the Statutes of the Appeals Board. Its failure to do so added unduly to the total length of the internal appeal procedure, three and a half years in all, which is indisputably too long. Moral injury was thereby caused to the complainant, for which she legitimately claims redress (see, for similar cases, Judgment 3688, under 11, and aforementioned Judgment 3935, under 16).
ILOAT Judgment(s): 3688, 3935
time limit; patere legem; internal procedure
Mr E. Z. has submitted an application to intervene in this case. However, under Article 13, paragraph 1, of the Rules of the Tribunal, the sole purpose of such an application is to obtain an order that a judgment on a complaint shall apply to an official who is in a similar situation in fact and in law to the complainant. In this case, however, neither the fact that Mr E. Z. lodged an internal complaint against the Director of the Office for similar conduct to that alleged by the complainant nor the fact that he lodged another internal complaint on the complainant’s behalf supports a finding that he is in a similar situation in fact and in law to the complainant which would justify ordering that this judgment be applied to him. His application to intervene will therefore be dismissed.