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Judgment No. 3142

Decision

1. The decision of the Secretary-General of 31 March 2010 is set aside as is his earlier decision of 22 December 2009.
2. The ECC shall pay the complainant the salary and emoluments she would otherwise have received from 1 February 2010 to 31 January 2011, together with interest at the rate of 5 per cent per annum from due dates until the date of payment. The complainant must give credit for earnings by her in that period.
3. The ECC shall pay the complainant moral damages in the amount of 20,000 euros.
4. It shall also pay her costs in the amount of 8,000 euros.
5. All other claims are dismissed.

Judgment keywords

Keywords

complaint allowed; decision quashed; non-renewal of contract; harassment

Consideration 10

Extract:

As the complainant does not directly challenge the findings of the ad hoc board, it is unnecessary to say more than that, in the absence of findings as to the specific conduct involved, a finding that a supervisor neither “knew [n]or ought to have known” that his conduct was unwelcome, even though that conduct is “assumed” to be improper and was directed to a subordinate who found it unwelcome, raises more questions than it answers. More particularly is that so as the test is not whether a person ought to have known, as stated by the board, but whether he “ought reasonably to have known” – a test that requires an objective evaluation of the conduct involved. However, it must be noted that the board did not find that the complainant made false allegations. Indeed and although it did not find that her claims were true, it did not find that any of them were false. And subject only to the question whether her supervisor knew or ought reasonably to have known that his conduct was unwelcome, his alleged statements as to the complainant’s clothing and appearance were capable of being categorised as sexual harassment.

Keywords

harassment; sexual harassment

Consideration 14

Extract:

[T]he organisation had a duty to investigate the complainant’s claim of harassment independently of any question as to the renewal of her contract. Indeed, to make a staff member’s contract renewal dependent on the outcome of an investigation of his or her claim of harassment is a clear disincentive to the making of a claim, even if the claim is justified.

Keywords

non-renewal of contract; harassment

Consideration 15

Extract:

Quite apart from the wrongful linking of the renewal of the complainant’s contract to the outcome of her complaint of harassment, the report of the ad hoc board did not justify the course taken. There is nothing to suggest that the complainant withdrew any of the specific claims made by her on 25 July 2009 and, as already noted, some of those claims were capable of being categorised as sexual harassment. Moreover, the board did not find that any of the claims were false. Further, although the board stated that it had come to the conclusion in its interview with the complainant that she “was withdrawing her claims of sexual harassment”, its ultimate conclusion was that “she did not pursue” these claims, a course which is entirely explicable in view of the absence of any reference to “sexual harassment” in the Terms of Reference. So far as concerns the claim of harassment generally, the Secretary-General committed an error of law in treating the situation as “serious” on the basis that there had been a finding that harassment had not occurred. It is entirely proper to treat as serious a situation where it is subsequently found that an allegation of harassment has no factual basis. In that situation, there has been a false accusation. In the present case, the ad hoc board found that there was a factual basis to the complainant’s claim, albeit without identifying the precise conduct involved. It found that there had been no harassment solely on the basis that the complainant’s supervisor neither knew nor ought to have known that his conduct – conduct that the Secretary-General said that he deplored – was unwelcome. And it did so simply on the basis that she had not told him so. Where behaviour is such as to satisfy all the elements in the definition of “harassment”, save knowledge on the part of the perpetrator, it is entirely proper for a staff member to make a claim of harassment. And a decision not to renew that staff member’s contract on the ground that a complaint of harassment, although properly made, was not sustained because the perpetrator neither knew nor ought reasonably to have known his conduct was unwelcome gives rise to an inference of retaliation. More particularly is that so where, as here, the contract of the person who engaged in the conduct concerned was renewed quite independently of the outcome of the investigation and the only real criticism that could be made of the person whose contract was not renewed was that she did not make her feelings known and did not make an “earlier attempt to resolve difficulties [...] in a less confrontational manner”.

Keywords

fixed-term; non-renewal of contract; retaliation; sexual harassment



 
Dernière mise à jour: 26.08.2020 ^ haut