Judgment No. 3935
1. The decision of the Director-General of UNESCO of 2 December 2016 is set aside to the extent that it limited compensation for the injury suffered by the complainant to six months’ salary, that is 50,804 United States dollars.
2. UNESCO shall pay the complainant, in addition to the sum already awarded pursuant to the aforementioned decision of 2 December 2016, moral damages in the amount of 25,000 euros.
3. It shall also pay him 1,000 euros in costs.
4. All other claims are dismissed, as is UNESCO’s counterclaim.
The complainant accuses his former supervisor of moral harassment.
complaint allowed; decision quashed; harassment
UNESCO submits that the complaint is irreceivable on the grounds of its lack of intelligibility. [...] The Tribunal agrees with the Organization that both the structure and the drafting of the complainant’s submissions might have been clearer. However, the complaint is sufficiently intelligible to enable the other party to identify its essential purpose and the main pleas on which the complainant relies. The content of UNESCO’s reply demonstrates, moreover, that it was able to understand fully the complainant’s claims and pleas.
Following the practice it has developed through its case law dealing with this issue, the Tribunal will hence dismiss this objection to receivability (see, for example, Judgments 3298, under 16, or 3616, under 1).
Jugement(s) TAOIT: 3298, 3616
receivability of the complaint; formal requirements; legal brief
The Tribunal has already found in similar cases that when an internal harassment complaint has wrongly been dismissed, it is not appropriate to order that an investigation be re-opened if that course would raise practical difficulties of this nature (see, for example, in another case concerning a UNESCO official, Judgment 3639, under 8 to 10).
Jugement(s) TAOIT: 3639
case sent back to organisation; harassment
[L]ike the Appeals Board, the Tribunal considers that by the time the impugned decision was taken, it was no longer possible to conduct such an investigation, not only because both the complainant and the Director of the Office had left the Organization, but also because of the time that had elapsed since the incidents in question, which in particular made it difficult to gather reliable testimony from witnesses as to whether those incidents occurred and how third parties may have perceived them. [...]
This situation means that it is not possible, in the instant case, to reach an informed decision on the merits of the parties’ submissions as to the existence and, as the case may be, the effects of the harassment alleged by the complainant. Neither the parties’ briefs nor the evidence tendered allow the Tribunal to rule on these points with certainty; this would be possible only if the findings of an investigation that was duly carried out at the material time were available. [...]
Nevertheless, the fact that it is impossible for the complainant to have his internal complaints examined constitutes a serious violation of his right to effective means of redress, in particular as far as his harassment complaint is concerned. It has caused him considerable moral injury which, in the Tribunal’s view, justifies a higher amount of damages than that already awarded by UNESCO in the impugned decision.
moral injury; inquiry; harassment; investigation
[T]he complainant’s contention that in this case UNESCO breached the time limits prescribed in the provisions governing the appeals procedure is well founded. [...]
It is true that, as UNESCO rightly points out, the failure to observe the aforementioned provisions of the Statutes of the Appeals Board did not seriously infringe the complainant’s rights, and the delays, some of which are attributable to the complainant, can partly be explained by the unusual complexity of the case. It should also be borne in mind that the Director-General’s final decision was preceded by discussions with the complainant aimed at reaching a settlement, which obviously delayed its adoption.
Nevertheless, the Organization was obliged, in accordance with the principle tu patere legem quam ipse fecisti, to adhere more strictly to the procedural time limits laid down in the Statutes of the Appeals Board. Its failure to do so caused the complainant moral injury, for which he legitimately claims redress (see, for similar cases, Judgments 3579, under 4, and 3688, under 11).
Jugement(s) TAOIT: 3579, 3688
moral injury; time limit; organisation's duties; patere legem; delay in internal procedure