Judgment No. 4039
1. The decision of the Director-General of 19 July 2016 is set aside insofar as it does not award damages to the complainant.
2. The ILO shall pay the complainant 20,000 Swiss francs in moral damages.
3. All other claims are dismissed.
The complainant, who alleges that he is the victim of institutional harassment and discrimination, seeks redress for the injury he considers he has suffered.
[T]he complainant requests an oral hearing. This request is rejected as the written pleadings and evidence which the parties have provided are sufficient to enable the Tribunal to reach an informed decision.
As the Organization recalls, according to the Tribunal’s case law, a decision to open an investigation into misconduct is not a decision that affects the official’s status (see Judgments 3236, under 12, and 2364, under 3 and 4). The purpose of such an investigation, which may be compared – in terms of criminal justice – to the investigation that precedes possible criminal proceedings, is not to gather evidence which can be used against the person concerned, but to provide the competent authority with information enabling it to decide whether the opening of a disciplinary procedure is warranted. Since it does not affect the complainant’s legal situation or alter her or his status, the decision to open an investigation does not constitute an “administrative decision” which may be impugned before the Tribunal (see the aforementioned Judgment 2364, under 3 and 4).
However [...] the complainant submits that this allegation, combined with others, is proof of harassment. The Tribunal must therefore ascertain whether the opening of the investigation is in itself sufficient to establish the existence of institutional harassment.
ILOAT Judgment(s): 2364, 3236
inquiry; administrative decision; institutional harassment
The decision to open an investigation, which in no way prejudges the decision on merits of a possible sanction, lies at the discretion of the competent authority.
In the instant case, the whistleblower had reported that the complainant’s spouse had been recruited more than once by the Office, that there had possibly been “subterfuge” because she had used different first names in the Integrated Resource Information System (IRIS) and the application listing ILO officials and that her private address was given as “c/o ILO” in IRIS. Having consulted HRD, which considered that it would be necessary to confront the officials concerned in order to determine responsibilities, and having ascertained that the complainant’s spouse had in fact been given 93 contracts since 2005, including six for the International Labour Conference between 2007 and 2012, the IAO formed the opinion that it had identified sufficient prima facie evidence to open an investigation.
The Tribunal considers that the evidence available to the IAO at that stage justified looking into whether, apart from mentioning his family relationship in his annual family status reports, the complainant had also disclosed it to the persons whom he had contacted in order to obtain a contract for his spouse, and whether there was not a conflict of interest, given that many contracts addressed to his wife had been sent to his professional address, that he himself had signed a number of them and that he had signed his spouse’s annual certificates of earnings on behalf of the Chief of the Central Payroll Unit of the Payment Authorisation Section. Indeed, the IAO report found that these allegations were substantiated in part.
The Tribunal therefore finds that, in opening the investigation, the Organization did not exceed the limits of its discretionary power in the matter.
In principle, allegations concerning irregularities in an investigation must be brought in the context of a challenge to the final decision arising from the investigation proceedings (see, in this connection, Judgment 3236, under 11). However, in this case, there was no disciplinary decision, since the investigation showed that the allegations against the complainant were unfounded. Nevertheless, inasmuch as the complainant submits that these flaws themselves constitute proof of institutional harassment, the Tribunal must examine them, since the Tribunal’s case law has established that the question as to whether harassment has occurred must be determined in the light of a thorough examination of all the objective circumstances surrounding the events complained of (see, for example, Judgment 3871, under 12). [...]
Be that as it may, the Tribunal must determine whether all the elements examined above amount to institutional harassment.
The JAAB and the complainant share the view that, “taken as a whole”, the elements in question lead to the conclusion that there was institutional harassment. It is correct to say that a long series of acts and omissions evidencing mismanagement which have compromised a complainant’s dignity and career prospects may constitute institutional harassment (see Judgments 3315, under 22, and 3250, under 9), but this was not the case here. As explained above, most of the matters on which the complainant relies cannot be accepted. There was a reasonable explanation for these elements and thus they cannot be said to constitute harassment (see Judgments 3447, under 9, and 2524, under 25). Only two procedural flaws have been established, one of which is partly the consequence of the other: first, the flaw resulting from the extension of the investigation to cover a new allegation differing from that on which it was initiated and, secondly, the inordinate length of the investigation which was partly the result of that.
The Tribunal will examine the ILO’s definition of harassment in order to determine whether these two flaws amount to an act of harassment (see Judgment 2594, under 18). [...]
In this case, it must be recalled that an investigation is not disciplinary in nature, but that its sole purpose is to ascertain all relevant facts in order to determine whether there is sufficient evidence to initiate a disciplinary procedure (see Judgments 2771, under 15, and 2364, under 3). In accordance with paragraph 19 of the Uniform Guidelines for Investigations, both inculpatory and exculpatory information must be examined. The investigation clarified matters with the result that the complainant was not charged with any wrongdoing. He was cleared of any suspicion and his career has not been hampered. This shows that, at all events, the Organization had no wish to harm or harass him. An investigation that has been opened lawfully cannot be termed harassment. Admittedly, the unlawful extension of the investigation, which had already been inadmissibly delayed, made it unduly long. However, it is well settled that an unlawful decision or unsatisfactory conduct is not sufficient in itself to constitute harassment (see Judgments 3233, under 6, and 2861, under 37).
ILOAT Judgment(s): 2364, 2524, 2594, 2771, 2861, 3233, 3236, 3250, 3315, 3447, 3871
inquiry; disciplinary procedure; institutional harassment
The sole purpose of an investigation is to establish the existence of facts that may be contested during disciplinary proceedings in which the rights of defence must be scrupulously safeguarded. The Tribunal considers that it is “clear that the rules relating to due process, in particular, which must be respected scrupulously during the actual disciplinary proceedings [...] (see, for example, Judgment 2475), do not apply during the investigation of matters brought before an internal auditing body” (see Judgment 2589, under 7). The Tribunal holds that, while it is preferable to notify the person concerned that she or he is to be the subject of an investigation, except where this would be liable to compromise the outcome of the investigation, such notification is not a requisite element of due process (see Judgment 3295, under 8).
Once the investigation is opened, the organisation is under an obligation to provide the person concerned with an opportunity to explain her or his conduct and to present any information on her or his behalf. The Uniform Guidelines for Investigations do not, however, stipulate when the person concerned must be given this opportunity, since the aforementioned paragraph 17 of the Guidelines provides that this matter “is regulated by the rules, policies and procedures of the Organization”. In the International Labour Office there is no internal manual or practical guide setting out the procedure to be followed when conducting such interviews. Like the JAAB, the Tribunal considers that the above-mentioned opportunity should preferably be afforded before rather than during the interview. However, in this case, there is nothing to indicate that the complainant was in any way prevented from defending himself on account of the manner in which the investigation was conducted (see, in this connection, Judgment 2771, under 18).
ILOAT Judgment(s): 2475, 2589, 2771, 3295
inquiry; disciplinary procedure; right to be heard
[T]he Tribunal has consistently held that no general principle obliges an international organisation to make provision for staff members under investigation to be assisted by a staff representative when they are interviewed (see Judgment 2589, under 7). [...]
It is true that new facts discovered during an investigation may sometimes corroborate the original allegation. In this case, however, the alleged inflation of the complainant’s overtime during the 2013 International Labour Conference has nothing to do with the allegation relating to the circumstances in which his spouse was employed. The suggestion that the excessive amount of overtime that the complainant was accused of having claimed might have been explained by the financial loss resulting from the refusal to recruit his spouse for the Conference does not in itself establish an adequate link between the two allegations.
As this was a new allegation, the IAO should have acted in accordance with paragraphs 27 to 30 of the Uniform Guidelines for Investigations and should at least have determined whether there were legitimate grounds warranting a new investigation on that issue. There is nothing in the file to show – and the defendant organisation does not submit – that the IAO conducted a preliminary evaluation before investigating the new allegation.
ILOAT Judgment(s): 2589
inquiry; disciplinary procedure
[T]he Tribunal draws attention to the fact that the decision whether or not to initiate an investigation is taken at the Organization’s discretion. However, once an investigation is opened, it must be conducted expeditiously without the suspect having to suffer the consequences of the investigators’ possible lack of time. An international organisation has an obligation to initiate the investigation in a timely manner and the corollary obligation of ensuring that the internal body responsible for investigating and reporting on the allegations has the necessary resources to carry out that responsibility (see, in this connection, Judgment 3347, under 14).
In these circumstances the duration of the investigation – more than 21 months – is inordinate, as is the period of 12 months between the date on which the complainant was first interviewed and the date on which he was notified of the findings of the investigation. [...]
With regard to the length of the investigation in particular, the Tribunal pointed out in Judgment 3295, under 7, that an organisation must investigate allegations of misconduct in a timely manner both in the interests of the person being investigated and the organisation. These interests include, among other things, safeguarding the reputations of both parties and ensuring that evidence is not lost. Consequently it must be found that the delay in conducting the investigation caused the complainant moral injury which must be redressed (see, in this connection, Judgment 3064, under 11).
ILOAT Judgment(s): 3064, 3295, 3347
moral injury; time limit; inquiry
[T]he Tribunal is not empowered to order apologies (see Judgments 3966, under 5, 3791, under 7, 3597, under 10, and 2417, under 28).
ILOAT Judgment(s): 2417, 3597, 3791, 3966