Judgment No. 4279
The complaint is dismissed.
The complainant challenges the decision to reject her internal complaint of psychological harassment.
harassment; complaint dismissed
[T]he complainant submits [...] that the two investigators who were appointed by the Director General to investigate her complaint [...] did not offer the requisite guarantees of impartiality.
The investigators appointed in this case were the Director of the Maastricht Upper Airspace Control Centre [...] and the Agency’s Head of Internal Audit. Since the departments headed by those two senior Eurocontrol’s officials did not come under the Directorate of Resources, the complainant is plainly wrong in contending that they were under the authority of Mr V. The Tribunal notes, moreover, that the officials in question considered it important to certify in their report that they did not have a reporting relationship with any of the parties to the dispute. While it is true that they were answerable to the Director General for the performance of their ordinary professional duties, that did not preclude them, in this case, from being entrusted with the investigation of the complaint in question, which was not directed against the Director General.
Theoretically, it would doubtless have been preferable, as the Director General himself admitted in his decision of 15 May 2017, to entrust the investigation into the harassment complaint against the Principal Director of Resources to a person outside Eurocontrol. The investigators in fact acknowledged that they had experienced some “discomfort” in having to investigate Mr V.’s conduct. It is furthermore regrettable that the Rule of Application, which, under the Article 12a of the Staff Regulations, was to lay down the implementing provisions for that article, had not yet been adopted when the harassment complaint at issue was made, as the Rule did not come into force until 23 May 2017.
However, the fact remains that these two officials – who had, in compliance with the requirements of Article 4.8 of the aforementioned Policy, received training in conducting an investigation before they took on that assignment – provided all the guarantees necessary to assume the responsibility entrusted to them.
In this regard, the Tribunal points out that, contrary to what the complainant appears to argue in referring to Judgments 3071, 3337 and 3660, which she misinterprets, its case law does not require investigations into harassment to be entrusted to a standing investigative body specifically established for that purpose. For the relevant requirements to be met, it suffices that such investigations are carried out by completely independent investigators.
That was the case here, since the arguments, put forward in passing by the complainant, that the independence of one of the investigators was compromised by his holding an appointment for a limited period or that he was disqualified from conducting an investigation because he himself had been the subject of a harassment complaint in the past, are irrelevant.
Moreover, the excerpts from the investigation report and the records of the interviews on the file lead the Tribunal to consider that the complaint was investigated by the investigators with complete impartiality.
inquiry; impartiality; conflict of interest; investigation
The complainant [...] takes issue with the fact that the investigators did not allow her to submit comments on the evidence gathered or to inspect the file compiled during the investigation before they completed their report. However, the investigators were not required to do so. In addition, the Tribunal observes that the complainant, who had already been interviewed by the investigators for the first time on 3 May 2016, was, in fact, re-interviewed at the end of the investigation, as she was given a second interview on 16 January 2017, shortly before the investigation report [...] was drawn up. It should be noted that the complainant was informed of the substance of the report, as required under the Tribunal’s case law, after it was submitted, since the Director General’s decision of 15 May 2017 contained a detailed summary of the report and was accompanied by a full copy of the part of the report setting out the investigators’ findings.
inquiry; right to be heard; investigation
[I]t should be recalled that it is not for the Tribunal, in view of the very nature of its role and the stage at which it intervenes in the disputes referred to it, to review all the findings of fact and assessments of evidence made by an internal investigative body which has gathered, as near as possible to the events, the information necessary to establish the truth of the matters at issue and, in particular, has heard the statements of the parties and various relevant witnesses at first hand. Under its settled case law, the Tribunal will only interfere with the findings of such a body, provided they have been made in the course of a properly-conducted procedure complying with the applicable rules of law, if they involve an obvious error of judgement (see, for example, Judgments 3593, under 12, 3682, under 8, 3831, under 28, or 3995, under 7).
ILOAT Judgment(s): 3593, 3682, 3831, 3995
evidence; inquiry; investigation
In view of the amount of information gathered by the investigators on the various incidents [...], the Tribunal considers that to conduct hearings, as requested by the complainant, of two witnesses – one of whom was interviewed during the investigation – would not affect the assessment of those facts. The complainant’s request to that end will therefore be refused.
[T]he complainant is wrong to believe there is a contradiction between the dismissal of her harassment complaint and the Director General’s decision to issue a written reprimand to Mr V. after the investigation report was submitted.
It is true that Mr V. received a reprimand [...], even though the investigators had found that there was no need for a disciplinary sanction in this case. In view of the requirements inherent in the principle of equal treatment, the Director General considered that he should treat Mr V.’s behaviour in specifically addressing the complainant as a woman during the incident [...] as misconduct. The Director General also deemed Mr V.’s failure to account for that conduct when he was questioned about it during the meeting [...] as inappropriate, given the duties owed by the Principal Director of Resources to staff unions.
Needless to say, it is not for the Tribunal to rule on whether the sanction imposed on Mr V. was warranted, since it has not been impugned before it. However, the Tribunal observes that, in any event, the misconduct of which Mr V. is accused [...] cannot be regarded as constituting psychological harassment of the complainant. There is therefore no contradiction between the imposition of that sanction and the rejection of the internal complaint [...] seeking recognition of such harassment.
disciplinary measure; harassment