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Judgment No. 4299

Decision

The complaint is dismissed.

Summary

The complainant challenges the decision to dismiss his claim for moral damages for harassment.

Judgment keywords

Keywords

harassment; complaint dismissed

Considerations 4-5

Extract:

[T]here is a material difference between an official alleging she or he had been harassed in the context of alleging misconduct, on the one hand, and an official alleging she or he had been harassed in the context of seeking protection from the harassment, on the other. In the latter situation, the organization’s primary obligation is to investigate whether there has been harassment and, if satisfied that there has been, take steps to prevent any further harassment. This obligation is part of a more general obligation to ensure that officials work in a safe working environment free from physical and psychological risk (see, for example, Judgment 4171, consideration 11). Those steps might include counselling the perpetrators of the harassment or relocating the staff member the subject of the harassment to another workplace or even another position.
It is true that a staff member who has, in the latter situation just discussed, established she or he has been harassed may also be entitled to an award of moral damages by the organization for the harassment (see, for example, Judgment 4158, consideration 3). Whether there is such an entitlement may depend on the terms of the regime in place within the organization to deal with harassment grievances. It is certainly something that can be awarded in proceedings in the Tribunal (see Judgment 4241, considerations 24 and 25). However, what is important is that, even if moral damages might be awarded, that is a subsidiary remedy or relief available in cases of this type when harassment is established. As just discussed, the primary obligation of the organization if harassment is proved is to protect the complainant and prevent further harassment.

Reference(s)

ILOAT Judgment(s): 4158, 4171, 4241

Keywords

moral injury; harassment

Consideration 8

Extract:

Even if [...] the Director General erred in the impugned decision in affording the OIOS report a status it did not warrant and declining to consider the matter himself, no purpose would be served by setting the decision aside and remitting the matter to the IAEA. The complainant has not been a staff member of the IAEA for over four years. Plainly enough, the IAEA does not now have any obligation to ensure the complainant is not harassed in the workplace. Indeed, [...] the complainant was no longer a staff member at the time he submitted his harassment complaint [...], a year after his separation from service. Resolving his grievance for this purpose of ascertaining whether there had been harassment and, if so, protecting the complainant in the workplace would be manifestly futile.

Keywords

case sent back to organisation; harassment



 
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