Judgment No. 3995
1. The decision of the President of IFAD of 11 September 2015 is set aside.
2. IFAD shall pay the complainant compensation for moral injury in the amount of 30,000 euros.
3. It shall also pay him 6,000 euros in costs.
4. All other claims are dismissed.
The complainant challenges the measures taken by IFAD following its investigation into his allegations of harassment.
Such laconic reasoning which, in the absence of any specific reference to legal or factual considerations, prevents the complainant from ascertaining whether each of the pleas presented in support of his appeal was duly examined by the Board, or from challenging the merits of that body’s recommendation, plainly does not satisfy the minimum standards required in order to ensure that the complainant’s right to a fair appeal procedure is respected (see, for a comparable case, Judgment 1317, under 33).
Jugement(s) TAOIT: 1317
internal appeals body; report; motivation
Thirdly, the Tribunal considers that IFAD was wrong to refuse the complainant’s request for disclosure of the reports drawn up by the AUO at the end of the investigation into the conduct of the two supervisors targeted by his complaint.
The Tribunal has consistently held that a staff member must, as a general rule, have access to all the evidence on which the competent authority bases its decision concerning her or him (see, for example, Judgments 2229, under 3(b), 2700, under 6, 3214, under 24, or 3295, under 13). This implies, amongst other things, that an organisation must forward to a staff member who has filed a harassment complaint the report drawn up at the end of the investigation of that complaint (see, for example, Judgments 3347, under 19 to 21, and 3831, under 17).
Of course, this obligation to disclose must be balanced against the need to respect the confidential nature of some aspects of an inquiry, particularly that of the witness statements gathered in the course of the inquiry. As the Tribunal’s case law has confirmed, such confidentiality may be necessary in order to ensure witnesses’ protection and freedom of expression (see, in particular, Judgments 3732, under 6, and 3640, under 19 and 20). Moreover, in this case the confidentiality of some information related to the investigation was expressly required by the [applicable] provisions on this matter [...].
Jugement(s) TAOIT: 2229, 2700, 3214, 3295, 3347, 3640, 3732, 3831
confidential evidence; harassment
That is why the Tribunal, after examining in camera the investigation reports produced by IFAD at its request, concluded that, while it was appropriate to order that they be shared with the complainant, they should first be redacted in order to remove any indications and passages which might reveal the identity of the witnesses. These same considerations will lead the Tribunal to deny the complainant’s request for disclosure of all the evidence stemming from the investigation process because, apart from the fact that producing it would be of little use at this stage of the proceedings, it might reveal some items of information which should legitimately remain confidential.
Nevertheless, by refusing to disclose the AUO reports to the complainant during the internal appeal process, when it should have done so in the redacted form described above, IFAD unlawfully deprived him of a genuine opportunity to challenge the findings of the investigation. In addition, although IFAD submits that on 5 May 2014 the complainant received an email summarising those findings, having regard to the text of that email, this action did not remedy the non-disclosure of the investigation reports themselves.
Lastly, in this case, the fact that the complainant was ultimately able to obtain copies of these reports during the proceedings before the Tribunal does not remedy the flaw tainting the internal appeal process. While the Tribunal’s case law recognises that, in some cases, the non-disclosure of evidence can be corrected when this flaw is subsequently remedied in proceedings before it (see, for example, Judgment 3117, under 11), that is not the case where the document in question is of vital importance having regard to the subject matter of the dispute, as it is here (see Judgments 2315, under 27, 3490, under 33, or the above-mentioned Judgment 3831, under 16, 17 and 29).
It follows from the foregoing, without it being necessary to examine the complainant’s other pleas, that the decision of 11 September 2015 must be set aside, since it was reached at the end of an internal appeal process which was unlawful in three respects.
At this stage of proceedings, the Tribunal would normally have referred the case back to IFAD in order that it might be taken up again in proceedings complying with due process. However, in view of the time which has elapsed since the events and since, as stated earlier, the complainant has now received the investigation reports and been able to comment on them, the Tribunal considers it more appropriate, in the particular circumstances of the case, to deal directly with the merits of the case.
Jugement(s) TAOIT: 2315, 3117, 3490, 3831
disclosure of evidence; hearings in camera
It is well settled that it is not the Tribunal’s role to review an internal appeal body’s findings of fact or assessment of evidence unless they are tainted with manifest error (see, for example, Judgments 3593, under 12, 3682, under 8, or 3831, under 28).
Jugement(s) TAOIT: 3593, 3682, 3831
inquiry; judicial review
According to the Tribunal’s case law, by virtue of the principle that an international organisation must provide its staff members with a safe and healthy working environment, it is liable for all injuries caused to a staff member by a supervisor when the victim is subjected to treatment that is an affront to her or his dignity (see, for example, Judgments 1609, under 16, 1875, under 32, 2706, under 5, or 3170, under 33).
Jugement(s) TAOIT: 1609, 1875, 2706, 3170
respect for dignity
Contrary to the view expressed by [the organisation] in its written submissions, in this case, the fact that disciplinary action was taken against the complainant’s supervisors at the end of the investigation on account of their misconduct did not by any means suffice to redress the injury caused to the complainant. Since the conditions for applying the case law cited above were indubitably met, even though the complainant was not the sole victim of some of the improper behaviour in question, it was incumbent upon the organisation to grant him monetary compensation under this head. By refusing to do so, the President of [the organisation] committed an error of law which constitutes an additional flaw in the impugned decision.