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Judgment No. 3640

Decision

The complaint is dismissed.

Summary

The complainant challenges the disciplinary measure of his summary dismissal in the wake of a sexual harassment complaint filed against him by one of his colleagues.

Judgment keywords

Keywords

disciplinary measure; summary dismissal; sexual harassment; complaint dismissed; plenary judgment

Consideration 2

Extract:

The complainant has requested an oral hearing. In view of the abundant and sufficiently clear submissions and evidence produced by the parties, the Tribunal considers that it is fully informed about the case and does not therefore deem it necessary to grant this request.

Keywords

oral proceedings

Consideration 3

Extract:

The complainant’s claims that the Tribunal should declare that “[his] complaint […] is receivable in all respects”, “that the impugned decision is unlawful because it is tainted with errors of fact and of law and with substantial formal and procedural flaws” and that “[his] summary dismissal for serious misconduct in fact constitutes wrongful dismissal callously imposed” shortly before the expiry of his employment contract and the end of his career, may be dismissed at the outset as irreceivable. Indeed, they can only be regarded as mere pleas in support of the complainant’s claims for the setting aside of the impugned decision and for damages. A long line of precedent has it that such claims seeking declarations in law are irreceivable where, as in this case, they have no legal effect per se (see, for example, Judgments 1546, under 3, 2299, under 5, or 3206, under 8).

Reference(s)

Jugement(s) TAOIT: 1546, 2299, 3206

Keywords

claim

Consideration 7

Extract:

The complainant submits that [...] the Ethics Adviser failed to inform him of his right to be assisted or represented by a third person for the purpose of his defence during the preliminary assessment of the complaint. However, the defendant organisation contends, without this being contradicted by the complainant in his rejoinder, that the Ethics Adviser had explicitly drawn his attention to the provisions of item 18.2 expressly mentioning this right. The Tribunal considers that, in the instant case, this manner of proceeding satisfied the duty to inform, especially as the complainant is highly qualified and was thus plainly quite capable of understanding the content of these provisions.

Keywords

due process; right to information

Consideration 9

Extract:

As far as the IOS investigation is concerned, the complainant’s main contention is that this service lacks the requisite expertise, because it has little experience in dealing with sexual harassment cases. But the mere fact that the annual number of investigations which IOS has to conduct in this field is indeed very low does not justify such criticism. In this case, [...] the investigation was entrusted to an investigator who was specialised in harassment cases, and there are no grounds for doubting that person’s competence in this field.

Keywords

inquiry; sexual harassment; investigation

Consideration 11

Extract:

Similarly, the complainant is not justified in contending that the procedure was unlawful because the IOS investigator did not submit the draft report to him for comment before forwarding it to the Director-General. Indeed, as the investigator had interviewed the complainant twice in the course of the investigation and had informed him of the evidence gathered during it, he had been given a genuine opportunity to challenge the accusations levelled at him.

Keywords

inquiry; investigation; investigation report

Consideration 12

Extract:

[I]t must be emphasised that by no means will a mistake in the opinion of a joint appeal body necessarily render unlawful the administrative decision taken in the light of that opinion.

Keywords

internal appeal; final decision

Consideration 14

Extract:

[T]he complainant submits that the facts considered in these proceedings should have been confined to those directly concerning Ms M. and that it was therefore wrong also to take account of allegations related to his behaviour towards other persons. However, contrary to what the Appeals Board seems to believe, in the context of an inquiry into a sexual harassment complaint, it is by no means abnormal that the investigations conducted with a view to ascertaining the truth of the statements contained in the complaint should be widened to encompass other similar behaviour on the part of the alleged harasser. In fact, that is often the best means of corroborating the allegations of the complainant in an area where [...] it may be impossible to produce material evidence. More generally, it should be recalled that the question of 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 Judgments 2553, under 6, in fine, 3166, under 16, in fine, or 3233, under 6).

Reference(s)

Jugement(s) TAOIT: 2553, 3166, 3233

Keywords

evidence; inquiry; harassment; sexual harassment; investigation

Consideration 15

Extract:

In addition, although the other acts taken into consideration had not led to the lodging of harassment complaints – in many cases this may be explained by the inherent risks of making an accusation against a supervisor – this did not pose a legal obstacle to their being taken into account. All that mattered here was that these acts had actually occurred, irrespective of the action which might have been taken on them at an earlier stage. The fact that they did not lead to the lodging of a complaint does not make them any less relevant as evidence corroborating the allegations of Ms M. (see, in respect of this latter point, Judgment 2521, under 10, in fine). The reprehensible conduct of an international civil servant may well give rise to a disciplinary measure taken by the employing organisation on its own initiative, regardless of whether one of his or her colleagues files a complaint. Item 11.3 of the Human Resources Manual, on disciplinary procedure, expressly provides for such a step, and in this connection the defendant organisation rightly points out that item 18.2, paragraph 5(d), of the Manual makes the management of UNESCO responsible for “resolving all instances of harassment as soon as it becomes aware of them, even if there are no formal complaints”. Since, in the instant case, acts of harassment concerning persons other than Ms M. had been expressly mentioned in the memorandum of the Director of the Bureau of Human Resources Management of 3 November 2011 notifying the complainant of the charges against him, in this respect the procedure followed bears no criticism.

Reference(s)

Jugement(s) TAOIT: 2521

Keywords

evidence; inquiry; sexual harassment; investigation

Consideration 16

Extract:

[W]hile an international organization cannot rely only on an internal investigative report in taking disciplinary measure against a staff member, such a report may nevertheless serve as a basis for initiating disciplinary proceedings if the indications of misconduct that it contains justify that course (see, for example, Judgment 2365, under 5(e)). When an organisation initiates proceedings in the light of such a report, it is not obliged to repeat all the investigations recorded in the report, but must simply ensure that the person concerned is given the opportunity to reply to the findings it contains so as to respect the rights of defence (see Judgment 2773, under 9).

Reference(s)

Jugement(s) TAOIT: 2365, 2773

Keywords

inquiry; due process; disciplinary measure; investigation

Considerations 17-21

Extract:

[T]he complainant contends with greater cogency that he was never provided with the full content of the witness statements forming the basis of the accusations against him, nor was he informed of the witnesses’ names. It is true that the witness statements were not appended to the report drawn up at the end of the investigation and, as mentioned in a footnote in that document, the identity of the witnesses was deliberately not disclosed. [...]
[T]his strict observance of confidentiality by UNESCO might be seen as departing from the Tribunal’s established case law according to which “a staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him” and, “under normal circumstances, such evidence cannot be withheld [by this authority] on the grounds of confidentiality” (see Judgment 2229, under 3(b)), to which Judgment 3295, under 13, refers). [...]
[W]here disciplinary proceedings are brought against an official who has been accused of harassment, testimonies and other materials which are deemed to be confidential pursuant to provisions aimed at protecting third parties need not be forwarded to the accused official, but she or he must nevertheless be informed of the content of these documents in order to have all the information which she or he needs to defend herself or himself fully in these proceedings. As the Tribunal has already had occasion to state, in order to respect the rights of defence, it is sufficient for the official to have been informed precisely of the allegations made against her or him and of the content of testimony taken in the course of the investigation, in order that she or he may effectively challenge the probative value thereof (see Judgment 2771, under 18).
In the instant case, the investigation report contained an extremely detailed description of all the instances of unwelcome behaviour by the complainant towards the 21 women identified as victims of his conduct, and their names were given in almost all cases. The complainant was therefore plainly apprised of the content of all the testimony taken during the investigation and of the e-mails which he had not been allowed to see. Furthermore, although, as stated above, the identity of the witnesses was not revealed to him, it is obvious that most of the information recorded in the report could only have come from the 21 persons concerned themselves. The complainant was therefore given a real opportunity to dispute the various items of evidence gathered in the course of proceedings against him. Moreover, it is clear from the above-mentioned comments which he submitted to the Organization on 18 November 2011 to rebut the charges of which he had been notified, that he had in fact been able to prepare them without any particular difficulty. Indeed, he himself described these comments as “clarifications and objections to the accusations of sexual harassment against [him], based on the whole file, and in particular on the IOS investigation report”.

Reference(s)

Jugement(s) TAOIT: 2229, 2771, 3295

Keywords

evidence; confidential evidence; inquiry; adversarial proceedings; due process; harassment; right to be heard; witness; sexual harassment; investigation

Consideration 27

Extract:

[T]he Tribunal considers that the acts of which the complainant was accused are established by sufficiently strong evidence that, in accordance with the requirements of the case law on the subject, it has been proved “beyond reasonable doubt” that they actually took place (see Judgment 2786, under 9, and the reference to this requirement made in Judgment 969, under 16).

Reference(s)

Jugement(s) TAOIT: 969, 2786

Keywords

evidence

Considerations 29-31

Extract:

The disciplinary authority within an international organisation has a discretion to choose the disciplinary measure imposed on an official for misconduct. However, its decision must always respect the principle of proportionality which applies in this area.
In the present case, the Tribunal considers that the acts of sexual harassment of which the complainant was accused are undeniably serious on account of their nature and their repetition. Moreover, it is clear from the evidence in the file that their gravity is exacerbated by two particular circumstances which must be emphasised here. First, it appears from the investigation report, inter alia, that many of the persons subjected by the complainant to the unwelcome behaviour in question were young women who did not hold a permanent appointment and who were therefore in a precarious situation which made it difficult for them to protest, let alone report it, especially as the complainant often had the power to influence the progress of their career. Secondly, it is plain from the file that, [...] after protests from several of his colleagues, the complainant had received various warnings about the inappropriate nature of his conduct. Thus, even assuming that the complainant had not instinctively realised it, he could not thereafter have been unaware that his behaviour towards the women who had to work alongside him was perceived by them to be improper, offensive and extremely unpleasant. This did not, however, prevent him from repeating his reprehensible conduct on many occasions, since further incidents occurred [...].
Having regard to these various considerations, and even though the complainant’s record of service with the Organization was otherwise excellent, the Tribunal finds that, in this case, the Director-General did not adopt a disproportionate disciplinary measure when she decided on the complainant’s summary dismissal for serious misconduct.

Keywords

proportionality; disciplinary measure; summary dismissal; sexual harassment

Consideration 5

Extract:

The sole purpose of the preliminary assessment of such a complaint is to determine whether there are grounds for opening an investigation. Item 18.2, paragraph 37, of the Human Resources Manual, on the anti-harassment policy, states that in order to justify the opening of an investigation, it is sufficient for the Ethics Adviser to find “that there are reasons to believe that the complaint is founded”. All that is therefore required at this stage is a prima facie finding that the complaint is genuine, since it is in the course of the investigation itself, if opened, that the comprehensive search for evidence must be made.

Keywords

inquiry; organisation's duties; investigation



 
Dernière mise à jour: 23.09.2020 ^ haut