Judgment No. 4111
1. The Director-General’s decision of 3 June 2016 is set aside, save with regard to the award to the complainant of a sum of 2,500 Swiss francs by way of compensation for the delay in the proceedings before the Joint Advisory Appeals Board.
2. The ILO shall pay the complainant the total amount of 16,000 Swiss francs in moral damages.
The complainant, a former official of the ILO, alleges that he was subjected to harassment and that the investigation into his allegations of harassment was flawed.
inquiry; harassment; institutional harassment
[...] According to the Tribunal, 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, Judgments 4038, consideration 5, and 3871, consideration 12). Since in this instance some of the facts on which the harassment allegations are founded differ from one complaint to another, the Tribunal will not join the cases.
ILOAT Judgment(s): 3871, 4038
The parties do not dispute that the complainant had requested that a number of witnesses be heard, including his former supervisor [...], which was refused. [...] Any administrative decision, even when the authority exercises discretionary power, must be based on valid grounds. In this case, the refusal, without valid grounds, to hear witnesses with regard to the complainant’s allegations constitutes a breach of due process.
inquiry; adversarial proceedings; due process; breach; harassment; right to be heard
[S]ince some of the statements gathered by the investigator were neither recorded nor summarized as such in the investigation report or the annexes thereto, the complainant was unable to respond to them in the comments that he was invited to submit to HRD concerning the report. Nor was he able to verify whether the investigator, in her report, had correctly interpreted the statements of which no minutes were taken. According to the Tribunal’s case law, a complainant must have the opportunity to see the statements gathered in order to challenge or rectify them, if necessary by furnishing evidence (see Judgments 3065, consideration 8, and 3617, consideration 12). This did not occur in this case with regard to the unrecorded statements.
The Tribunal therefore considers that, in these circumstances, the adversarial principle was disregarded. This plea is well founded.
ILOAT Judgment(s): 3065, 3617
report; evidence; testimony; adversarial proceedings; due process; duty to inform; procedural flaw; right to be heard
It is true that a long series of examples of mismanagement and omissions that compromises the dignity and career objectives of a complainant can constitute institutional harassment (see Judgments 3315, consideration 22, and 3250, consideration 9). However, the only elements which can be said to constitute harassment are those for which there is no reasonable explanation (see Judgments 4038, consideration 18, 3447, consideration 9, and 2524, consideration 25).
ILOAT Judgment(s): 2524, 3250, 3315, 3447, 4038
Where an investigation into a harassment complaint is found to be flawed, the Tribunal in principle remits the matter to the organization concerned so that a new investigation can be conducted. However, in this case, in view of the considerable delay occasioned by HRD and the JAAB, the Tribunal considers it appropriate not to remit the matter to the ILO.
Since the complainant was denied the right to have his harassment grievance duly investigated, the Tribunal considers it fair to redress the moral injury so caused by ordering the Organization to pay him 15,000 Swiss francs in compensation.
moral injury; inquiry; flaw; harassment; moral damages
[...] Although it must be taken into account that the complainant took a month to provide his comments and that HRD asked the investigator to respond to them, which may have taken some time, the Tribunal considers that, in view of the circumstances of the case, a period of nine months between the submission of the findings of the investigation and the notification of the decision of HRD is excessive. Harassment cases should be treated as quickly and efficiently as possible, in order to protect staff members from unnecessary suffering, but attention must also to thoroughness and procedure (see Judgment 3447, consideration 7).
The moral injury thus caused to the complainant will be fairly redressed by awarding him compensation in the amount of 1,000 Swiss francs.
ILOAT Judgment(s): 3447
procedure; moral injury; delay; inquiry; harassment; moral damages
As to the proceedings before the JAAB, they were also seriously delayed. Whereas the grievance was filed on 21 August 2014, the JAAB’s report was issued on 1 April 2016. Both the JAAB and the ILO have admitted this delay, which the Director-General agreed, in the impugned decision, to compensate in the amount of 2,500 Swiss francs.
moral damages; delay in internal procedure