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Judgment No. 4347

Decision

The complaints are dismissed.

Summary

The complainant impugns the decision of the Director of PAHO to impose on him the disciplinary measure of reassignment with reduction in grade.

Judgment keywords

Keywords

harassment; complaint dismissed

Consideration 21

Extract:

Regarding the non-disclosure of the investigation report, the Tribunal recalls that in Judgment 2229, consideration 3(b), it stated: “According to general principles of law, the 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. Under normal circumstances, such evidence cannot be withheld on the grounds of confidentiality.” In the present case, by a letter of 8 August 2014, the complainant was provided with the list of charges and the 38 annexes of evidence on the basis of which the list had been compiled (including all witness statements and relevant emails); by a letter of 9 June 2015, he was provided with the confirmation of his misconduct and, in the attachment to that letter, with a 16-page document providing “the basis for the findings and conclusions regarding [his] lack of compliance with the established standards”; moreover, he was also provided with the Board of Appeal’s preliminary recommendation and final report in the impugned decisions (letters of 27 December 2017 and 22 June 2018 respectively). The Tribunal is therefore satisfied that, although PAHO, relying on paragraphs 68 and 69 of the Investigation Protocol, did not provide the complainant with a copy of the investigation report, he was provided with all evidence related to the charges and the specific evidence on which the final decision was based, and that he was given ample opportunity to respond to the allegations against him. His pleas in this respect are therefore unfounded.

Reference(s)

Jugement(s) TAOIT: 2229

Keywords

disclosure of evidence; investigation report; confidentiality

Consideration 22

Extract:

The Ethics Office did not err in expanding the scope of its investigation beyond the allegations in the harassment complaint. An organization has the authority and the duty to investigate any indications of related misconduct which it discovers in the course of an investigation on its own or through claims made by staff members. In the present case, the expanded investigation was directly related to the original allegations of misconduct. The complainant has not presented any convincing evidence that the Ethics Office abused its authority or had any conflict of interest.

Keywords

investigation

Consideration 23

Extract:

Concurring with the Board of Appeal’s preliminary recommendation, the complainant alleges that there was an unlawful delegation of authority to the Director of Administration because of the failure to follow the procedure set out in paragraphs 49 to 51 of the PAHO Harassment Policy, which provide that a decision on disciplinary action shall be taken by HRM or, in case of a conflict of interest, the Deputy Director. As noted in Judgment 3958, consideration 11, “[a] conflict of interest occurs in situations where a reasonable person would not exclude partiality, that is, a situation that gives rise to an objective partiality. Even the mere appearance of partiality, based on facts or situations, gives rise to a conflict of interest”. In the present case, the former Deputy Director’s close working relationship with the complainant and other staff members in KMC created, at the very least, a perception of a conflict of interest. The Tribunal is satisfied by the justification provided by the Director of PAHO in her 27 December 2017 letter [...] that a valid conflict of interest existed for both HRM and the former Deputy Director, and finds that, in the circumstances, the delegation of authority to the Director of Administration was lawful.

Reference(s)

Jugement(s) TAOIT: 3958

Keywords

conflict of interest

Consideration 25

Extract:

The complainant asserts that PAHO’s Office of the Legal Counsel had conflicts of interest stemming from the fact that it was consulted with regard to the performance evaluation process for Mr M. and the investigation and disciplinary procedures. This assertion is wrong. The Office of the Legal Counsel had no conflict of interest as its role is to act as PAHO’s legal advisor when consulted on any issues related to the legality of PAHO’s actions, processes and procedures, including but not limited to performance evaluations, misconduct investigations and disciplinary proceedings. The complainant is mistaken in asserting that the Office of the Legal Counsel “is presumed to defend all PAHO Staff when needed”. The Ethics Office acted in accordance with [...] the Investigation Protocol in forwarding a copy of the investigation report to the Office of the Legal Counsel so that it could ensure, prior to the issuance of the [...] letter of charges, that all applicable rules, policies and procedures with respect to the investigation had been followed and that there was sufficient information and evidence to support the charges of misconduct.

Keywords

conflict of interest

Consideration 26

Extract:

The complainant argues that he was disadvantaged by two distinct and irregular parallel processes, as he was not informed of the investigation into the harassment complaint against him while he was involved in Mr M.’s performance evaluation process. There is no reason for which the complainant should have been notified that he was the subject of a harassment complaint while he was involved in the performance evaluation process for the staff member who raised the complaint. The Ethics Office acted within its competence in deciding to notify him only after the investigation into his alleged misconduct had begun in order to preserve the evidence and to eliminate the potential for witness tampering or intimidation. His rights were not infringed by the delay in his notification (see, for example, Judgment 3295, consideration 8).

Reference(s)

Jugement(s) TAOIT: 3295

Keywords

notification; investigation

Consideration 27

Extract:

The Tribunal, in accordance with its case law, shall not reweigh the evidence but shall limit itself to evaluating the lawfulness of the Board of Appeal’s and Director’s findings and conclusions on the evidence (see, for example, Judgments 4237, consideration 12, 4207, consideration 10, and 3964, consideration 13).

Reference(s)

Jugement(s) TAOIT: 3964, 4207, 4237

Keywords

evidence; misconduct

Consideration 28

Extract:

The complainant also submits that the decision is vitiated by an error of law, as the Board of Appeal was improperly composed and the appointment of a new Board of Appeal led to an egregious delay in the proceedings. The Tribunal finds that the composition of the Board of Appeal which reviewed his appeal was lawful and the delays in reconfiguring the Board of Appeal were not egregious. The length of the delay was principally determined by the complainant’s request to change the composition of the panel which was proposed to him on 26 May 2016. He requested the change as he objected to the proposal that the Board of Appeal members remain on the Board of Appeal beyond the expiry of their mandates, despite assurances that they had agreed to the extension of their appointments at the Organization’s request and with the knowledge and concurrence of the Staff Association. Therefore, the appeal was stayed, pending new elections for the Board of Appeal members nominated by the Staff Association. While it took a year to finalize the composition of the new panel, the Board of Appeal, once properly composed, rendered its preliminary report within three months and its final report within five months of receiving the Director’s 27 December 2017 decision. Moreover, the complainant has not provided convincing evidence of any negative effect on him caused by the delay in the proceedings before the Board of Appeal.

Keywords

cause of action; internal appeal; delay

Consideration 32

Extract:

The complainant claims that excessive delays throughout the various stages of the proceedings against him caused him injury and warrant an award of damages. Although the overall duration of the proceedings may appear lengthy, the Tribunal notes that they were complex and involved investigation into allegations against both the complainant and Mr N. and multiple stages of review by various authorities. Therefore, no award of damages is warranted on this basis.

Keywords

internal appeal; delay



 
Dernière mise à jour: 11.02.2021 ^ haut