Judgment No. 4241
Decision
1. The impugned decision of 13 September 2017 is set aside.
2. WHO shall pay the complainant 50,000 Swiss francs in moral damages.
3. WHO shall pay the complainant 8,000 Swiss francs in costs.
4. All other claims are dismissed.
Summary
The complaint challenges the decision to dismiss her complaint of harassment as unsubstantiated.
Judgment keywords
Keywords
complaint allowed; decision quashed; harassment
Consideration 2
Extract:
The complainant applies for the joinder of this complaint with her first complaint in which she alleges that the decision to reassign her to the post of Senior Advisor, SIE, with effect from 1 February 2016 was unlawful. The application will be rejected as there is no nexus between that matter and the present complaint. There is no evidence that the persons against whom the complainant’s allegations of harassment are made played any part in the decision to reassign her. The complaints do not raise the same or similar issues of law.
Keywords
joinder
Consideration 4
Extract:
[T]he complainant [...] seeks an order that her harasser(s) be subjected to disciplinary sanctions for misconduct. The request is rejected as the imposition of such a measure lies outside of the Tribunal’s jurisdiction (see Judgment 3318, consideration 12).
Reference(s)
ILOAT Judgment(s): 3318
Keywords
competence of tribunal; injunction; ratione materiae; relief claimed; request to subject someone to disciplinary proceedings
Consideration 4
Extract:
[The complainant's] claim for moral damages on the ground that there was excessive delay in the investigation process is well founded. The Tribunal has consistently stated that harassment cases should be treated as quickly and efficiently as possible, in order to protect staff members from unnecessary suffering, but attention must also be paid to thoroughness and procedure (Judgment 3447, consideration 7), and that the moral injury caused to the complainant by excessive delay will be fairly redressed by awarding her or him compensation (see, for example, Judgment 4111, consideration 9). The complainant submitted her harassment complaint on 19 January 2016. The IOS called the first witness on 24 October, some nine months later. On 13 July 2017 it submitted its report to the Executive Director, who informed the complainant by correspondence of 13 September 2017 that the matter was closed. The duration of the process was excessive both in light of the Tribunal’s case law and paragraph 2.1 of the Policy on the Prevention of Harassment at WHO[.]
Reference(s)
ILOAT Judgment(s): 3447, 4111
Keywords
moral injury; harassment
Consideration 5
Extract:
The complainant applies for an oral hearing. She states, in her brief, that this should be granted as there are essential contradictions between her allegations and the assertions of staff members interviewed, especially the DXD/MER and the two staff members in the latter’s Office, Ms E. and Ms F., whom she has alleged mobbed her. She states that considering that the facts of the case are in dispute and that she was not able to adduce all the relevant evidence in writing, the Tribunal should conduct an oral hearing and investigate the issues submitted herein. She reserved her right to call witnesses after receiving WHO’s reply and surrejoinder.
The application is rejected. The complainant named no witnesses and did not refer to an oral hearing in her rejoinder or subsequently. Neither has she identified the aspect(s) of the case for which she was not able to adduce evidence. Additionally, it is not within the Tribunal’s purview to conduct harassment investigations. WHO/UNAIDS constituted the IOS and tasked it to conduct such investigations. Moreover, the issues raised in the proceedings can be resolved having regard to the detailed pleas and the voluminous documentary evidence which the parties have provided. It is noteworthy that the complainant states, in her rejoinder, that she has “provided ample evidence, consisting of hundreds of emails, for each of the allegations of harassment she submitted to the IOS [and that] [s]uch emails extensively demonstrated the instances of harassment committed against her for nearly three (3) years on a regular and persistent basis [and that] it is rather ironic [for] the Respondent to allege that [she] had not provided sufficient evidence to support [her] allegations, despite the 1000 pages she submitted [...]”. She also states that she provided ample evidence and concrete examples of the way in which the applicable rules have been violated by the IOS during its investigation.
Keywords
oral proceedings
Consideration 6
Extract:
The complainant’s request, in her rejoinder, that WHO be ordered to produce documents relating to her supervisor’s vetting process leading to the latter’s promotion to another post before the end of the investigation of the harassment allegations is rejected as it is irrelevant to the complainant’s harassment complaint.
Keywords
disclosure of evidence
Consideration 7
Extract:
WHO raises receivability as a threshold issue. It argues that matters which are raised in this case are irreceivable insofar as they are covered by separate proceedings, including the complainant’s first complaint contesting the decision to reassign her as Senior Advisor, SIE, and other proceedings that are being pursued by the complainant independently of the challenge to the impugned decision to close her harassment complaint. However, it is relatively clear that the allegations insofar as they may concern those other matters are intended to establish an aspect of the unlawfulness of the decision to close the harassment complaint and the complainant’s claims are cast no wider. It is open to the complainant to follow this course (see, for example, Judgment 4149, consideration 7).
Reference(s)
ILOAT Judgment(s): 4149
Keywords
receivability of the complaint; res judicata; harassment
Consideration 9
Extract:
Regarding the applicable general principles, the Tribunal has stated that the question whether harassment occurred must be determined in the light of a careful examination of all the objective circumstances surrounding the acts complained of. There is no need to prove that the perpetrator of these acts intended to engage in harassment, the main factor being the perception that the person concerned may reasonably and objectively have of acts or remarks liable to demean or humiliate her or him. The Tribunal’s case law has always recognised that an allegation of harassment has to be borne out by specific facts, the burden of proof being on the person who pleads it, it being understood that an accumulation of events over time may be cited in support of such an allegation (Judgment 4034, consideration 16). An unlawful decision or inappropriate behaviour is not enough to prove that harassment has occurred (Judgment 2861, consideration 37). The Tribunal has also held that behaviour will not be characterised as harassment or mobbing if there is a reasonable explanation for the conduct in question (Judgment 2370, consideration 17). It further stated that, on the other hand, an explanation which is prima facie reasonable may be rejected if there is evidence of ill will or prejudice (see, for example, Judgment 3996, consideration 7B).
Reference(s)
ILOAT Judgment(s): 2370, 2861, 3996, 4034
Keywords
general principle; harassment
Considerations 11-12
Extract:
Although the complainant did not provide a list of witnesses in her harassment complaint, she stated therein that she had named witnesses throughout that complaint wherever relevant. She identified about twenty-four persons with reference to various allegations of harassment which she proffered. Initially, between October and November 2016, the IOS interviewed seven of those persons and then transmitted a summary of their testimony to the complainant in December 2016 for her comment. In her response, dated 13 January 2017, the complainant noted that the IOS had not interviewed her or other witnesses whom she had identified. In March 2017, the IOS called five other witnesses. It called the complainant for oral testimony in May 2017. The IOS did not call some of the persons whom the complainant had identified concerning specific allegations, the UNAIDS Chief of Staff and the UNAIDS Executive Director in particular. This was in breach of proper procedure, particularly given that the IOS has not explained why it did not hear those persons (see Judgment 4111, consideration 3).
There was also a breach of proper procedure when, notwithstanding the clear discrepancies between critical aspects of the evidence given by the complainant and the three persons whom she accused of harassment (some of which the complainant had detailed in her response of January 2017 and later in her oral testimony), the IOS did not call those persons again to clear the discrepancies (as contemplated by Article 24 of the Investigation Process) in order to determine the truth and properly establish the facts. Moreover, the IOS erred when contrary to the indication contained in paragraph 3.1.5 of the Policy, that harassment is normally prolonged and persistent, as well as the settled principle that an accumulation of events over time may be cited in support of an allegation of harassment, the IOS rejected each allegation of harassment separately without considering whether cumulatively they provided proof of harassment.
Reference(s)
ILOAT Judgment(s): 4111
Keywords
evidence; inquiry; due process; harassment; witness; investigation
Consideration 13
Extract:
The Tribunal has stated that it is by no means abnormal that the investigations conducted with a view to ascertaining the truth of the statements contained in a complaint should be widened to encompass other similar behaviour on the part of the alleged harasser. It noted that it is in fact often the best means of corroborating the allegations of the complainant in an area where it may be impossible to produce material evidence. It has further stated that, more generally, the question whether or not harassment has occurred must be determined in the light of a careful examination of all the objective circumstances surrounding the events complained of by the alleged victim (see, for example, Judgments 3233, consideration 6, and 3640, consideration 14). The Tribunal notes that notwithstanding that Mr F.C. had testified that he sustained treatment that was similar to that which the complainant alleged at the hands of the DXD/MER, who was then his second-level supervisor, his testimony found no place in the IOS’s analysis.
Reference(s)
ILOAT Judgment(s): 3233, 3640
Keywords
evidence; burden of proof; inquiry; flaw; harassment; investigation
Considerations 17-19
Extract:
Contrary to the IOS’s findings, the Tribunal finds that there is sufficient evidence that the complainant suffered harassment over a period of time. The Tribunal appreciates that the DXD/MER took some of the actions complained of in the performance of her managerial and supervisory functions or out of the managerial necessity of the organization. The Tribunal also appreciates that the DXD/MER intended her Senior Advisor and the Director of her Office, Ms E. and Ms F. respectively, to assist her to coordinate her work with her four Department Directors, including the complainant. However, the actions were done in a manner which reasonably caused the complainant to feel that Ms E. and Ms F. were reviewing and supervising her work. It is also apparent from the evidence that misunderstandings occurred as to how Ms E. and Ms F. were to communicate with the complainant and the Tribunal accepts the complainant’s evidence that on occasions she did not receive responses to matters which she raised. In the Tribunal’s view, in these circumstances the complainant would have reasonably felt offended and humiliated. Ultimately, however, Ms E. and Ms F. were merely executing the orders of the DXD/MER, which also created an intimidating work environment for the complainant.
The circumstances also lead to the conclusion that, given her administrative experience and knowledge, the DXD/MER ought reasonably to have known that the complainant would be offended and humiliated by the actions. Under paragraph 3.1.3 of the Policy, it was not necessary that the actions complained of were intended to have had that effect. There is evidence, which the Tribunal accepts, that the complainant raised some of the matters that concerned her with the DXD/MER. For example, she raised her concern about the role that the Director of the DXD/MER’s Office, Ms F., played in relation to her which occasioned a meeting between the complainant, the DXD/MER, Ms E. and Ms F.
It is apparent from the evidence that, based on the orders of the DXD/MER, Ms E. and Ms F. did not operate within boundaries that the complainant was aware of, which could have prevented encroachment upon the functions set out in her job description. It is understandable that this caused the complainant to feel that the DXD/MER had inappropriately delegated some of her managerial duties to staff members in her Office. They held meetings with her in instances in which the DXD/MER, as her first-level supervisor, should have met on a one-on-one basis with the complainant as a Department Director. [...]
The uncontroverted evidence is that the Senior Advisor had informed the complainant by email that she (the Senior Advisor) and the DXD/MER had reviewed the complainant’s objectives together and that she would share their feedback with her at a short meeting. The DXD/MER had thereby clearly delegated her responsibility under the rules to the Senior Advisor, a junior to the complainant, to undertake that critical task which the DXD/MER was required to perform. In the Tribunal’s view, given the latter’s experience in senior management roles in international organizations and the leading role which she played in reforming performance management and the introduction of the new performance management system, the DXD/MER ought reasonably to have known that this action would have offended and humiliated the complainant.
Keywords
harassment
Considerations 21-22
Extract:
In the Tribunal’s view, the humiliating circumstances were exacerbated on the evidence, which the IOS correctly accepted, that the DXD/MER did not invite the complainant for whom she was the first-level supervisor to regular one-on-one meetings. This was an essential supervisory duty. The IOS found that the DXD/MER could not have reasonably known that neglecting to invite the complainant to such meetings regularly would offend, humiliate or intimidate her and that her harassment complaint did not state that the DXD/MER “persistently refused to meet with her” on that basis. According to the IOS, it was open to the complainant to request such meetings if she believed that they were warranted, and it noted that the complainant was also said to be reluctant to meet with the DXD/MER. It therefore concluded that there was no evidence to support the allegation that the latter’s conduct constituted harassment in this respect. This finding was mistaken.
Regular one-on-one meetings with the complainant as a Department Director to discuss technical and administrative matters, was an essential management requirement for the DXD/MER as her first-level supervisor. It was not dependent upon a request and justification by the complainant.
Keywords
harassment; supervision
Consideration 23
Extract:
[A]lthough the Tribunal concludes that there is nothing in the evidence to suggest that the DXD/MER intentionally set out to unsettle the complainant, the fact remains that taking all the circumstances of the case into account, the actions taken by or on the orders of the DXD/MER were liable to offend and humiliate the complainant. Moreover, in the Tribunal’s view, a reasonable person would have found the actions offensive and humiliating. The DXD/MER ought reasonably to have known that those actions would have offended and humiliated the complainant, and that they interfered with the complainant’s ability to carry out her work and created a hostile work environment for her, thus constituting harassment in the terms set out in the Policy. This entitles the complainant to moral damages[.]
Keywords
moral injury; harassment
Consideration 24
Extract:
[T]he finding of harassment, which has been reached at the end of proceedings to which the persons called into question are not party and in which they have therefore been unable to comment, may not under any circumstances be used against them in any context other than that of the instant judgment. The conclusion is, however, that WHO/UNAIDS, which have a duty to protect each of their officials, have incurred liability towards the complainant on account of this harassment and must therefore be ordered to redress the injury which she has thus suffered.
Keywords
liability; harassment
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