Judgment No. 3200
1. The impugned decision of 15 December 2010 is set aside as is the earlier decision to demote the complainant with effect from 1 March 2009.
2. The FAO shall pay the complainant the difference in all relevant salaries and entitlements retroactively to 1 March 2009, together with interest at the rate of 5 per cent per annum from due dates.
3. The Organization shall pay the complainant moral damages in the amount of 4,000 euros.
4. It shall also pay her 4,000 euros in costs.
5. All other claims are dismissed.
The complainant challenges the decision to impose on her the disciplinary measure of demotion.
"Although the case was complex and detailed, and the subject matter sensitive, the time taken to complete the proceedings was indeed excessive. The Tribunal notes in particular that it took OSDI ten months to bring the investigation to a conclusion following the interviews, and it took the Director General seven months to reject the appeal after receiving the Appeals Committee Report. The total length of the proceedings cannot therefore be considered reasonable, and specifically, the two intervals of time noted above were excessive. The conclusion is that the Organization did not respect the need for expeditious proceedings and violated its duty of care towards the complainant."
procedure before the tribunal; moral injury; administrative delay; internal appeal; delay; reasonable time; organisation's duties; staff member's interest; duty of care
"Paragraph 5.2 [of the OSDI Quality Assurance Manual] must be interpreted in a manner consistent with the fundamental right of due process to know the name of the accuser except in those circumstances where revealing the identity of the accuser could undermine the integrity of the investigation."
Organization rules reference: Paragraph 5.2 of the OSDI Quality Assurance Manual
disclosure of evidence; adversarial proceedings; duty to inform; procedural rights during investigation; witness; opening of an investigation
complaint allowed; decision quashed; downgrading; disciplinary measure; due process in disciplinary procedure
As for the argument that the investigation was biased, it must be pointed out that the investigators have some discretion in
questioning witnesses, and there is no rule requiring standardised questions.
witness; evidence during investigation
It will often be fair to the accused to give notice of the allegations some time before the interview, perhaps even days, so that the accused has an opportunity to gather their thoughts about who might give evidence on the accused’s behalf and, in appropriate cases, identify documents which might assist the accused’s defence. Of course, as paragraph 5.2 [of the OSDI Quality Assurance Manual] also contemplates, such notice might be inappropriate if it compromised the integrity of the investigation, but that is likely not to be the norm. However, what is clear is that this step of informing the accused of the allegations should occur before the interview.
procedural rights during investigation; notification of allegations; duty to inform about the investigation
The complainant was demoted from grade P-3 to grade P-2 on the grounds that she had harassed and intimidated Ms A., a staff member over whom she had authority.
When the complainant asked towards the beginning of the interview who was accusing her she was told, in effect, that this information would emerge from the questions. This is not what paragraph 5.2 requires. In order to understand what the allegations are and how to respond and frame a defence, an accused would need to be told who had made the allegations. The identity of the accuser is a significant piece of information necessary to inform the accused of the factual context in which the accused’s alleged conduct was said to have occurred. The obligation to inform the accused of the allegations includes an obligation to identify the accuser as part of the factual matrix of what constitutes “the allegation”.
disclosure of evidence; procedural rights during investigation; witness; opening of an investigation