Judgment No. 4313
1. The Director-General’s decision of 23 May 2017 is set aside.
2. The ILO shall pay the complainant 25,000 Swiss francs in moral damages.
3. It shall also pay her 750 Swiss francs in costs.
4. All other claims are dismissed.
The complainant, a former official of the International Labour Office, challenges the decision to dismiss her harassment grievance.
complaint allowed; harassment
Several new features were introduced by the amendment of Article 13.4 of the Staff Regulations on the procedure to be followed in cases of harassment. While the introduction of the duty to conduct an independent investigation, unless the grievance is irreceivable or the Director of the Human Resources Development Department is satisfied that the facts have already been fully established, is indisputably in line with the Tribunal’s case law, the same cannot be said of the exclusion by the new Article 13.4(18) of the Staff Regulations of the right to file an internal appeal against the decision of the Director-General with the Joint Advisory Appeals Board.
First of all, as the Tribunal has repeatedly stated, it is desirable that an official should have the opportunity to lodge an internal appeal against a decision concerning her or him (see Judgments 3732, under 2, and 4257, under 12). The right to an internal appeal is a safeguard which international civil servants enjoy in addition to their right of appeal to a judicial authority (see, for example, Judgments 2781, under 15, and 3067, under 20). This is especially true since in most matters, internal appeal bodies may normally allow an appeal on grounds of fairness or advisability, whereas the Tribunal must essentially give a ruling on points of law (see Judgment 3732, under 2).
Next, the existence of an internal appeal procedure allows the organisation, if need be, to remedy an omission or rectify an error and, if necessary, to alter its position before a final decision is taken. Moreover, it allows the staff member concerned to understand the final decision better and perhaps accept that decision as being warranted in the light of the findings of the internal appeal body, even if the outcome is unfavourable to her, thus dissuading her from filing a complaint with the Tribunal.
Finally, internal appeal procedures play a fundamental role in the resolution of disputes, owing to the guarantees of objectivity derived from the composition of the appeal bodies and their extensive knowledge of the functioning of the organisation. One of the main justifications for the mandatory nature of such a procedure is to enable the Tribunal, in the event that a complaint is ultimately filed, to have before it the findings of fact, items of information or assessment resulting from the deliberations of appeal bodies, especially those whose membership includes representatives of both staff and management, as is often the case (see Judgments 3424, under 11(b), 4072, under 1, and 4168, under 2). In this case, it appears to the Tribunal that the input of an internal appeal body would have been particularly essential given that a large number of facts have to be taken into consideration.
In conclusion, the Tribunal deeply regrets that it is no longer possible to bring an internal appeal against a harassment-related decision before the Joint Advisory Appeals Board, even though it is normally the rule at the ILO for such an appeal to be available.
ILOAT Judgment(s): 2781, 3067, 3424, 3732, 4072, 4168, 4257
internal appeal; harassment
[T]he fact that the complainant was ultimately able to obtain a copy of the witness statements during the proceedings before the Tribunal does not remedy the flaw in the investigation procedure. 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 2767, cited by the ILO, and Judgment 3117, under 11), that is not so where the document in question is of vital importance having regard to the subject matter of the dispute (see Judgments 2315, under 27, 3490, under 33, 3831, under 16, 17 and 29, and 3995, under 5). [...]
The ILO also refers to Judgment 3071, in which the Tribunal held that the failure to disclose witness statements gathered in the course of a harassment investigation could have been corrected in the proceedings before the Joint Advisory Appeals Board. The Organization points out that the new procedure for the administrative resolution of harassment grievances does not allow internal appeals to be filed with the Joint Advisory Appeals Board when an investigation is required and seeks to argue that it may therefore rectify the investigators’ omission during the proceedings before the Tribunal.
The Tribunal cannot accept that reasoning. As discussed in consideration 3 [...], one of the advantages of the internal appeal procedure is that it allows the organisation to rectify certain irregularities in time. This is why, in Judgment 3071, the Tribunal stated that the witness statements gathered in the course of the investigation could have been disclosed to the person concerned during the proceedings before the Joint Advisory Appeals Board. In that case, the evidence was disclosed before the final decision was taken and thus the adversarial principle was observed. The fact that such proceedings are not available means that it is no longer possible to remedy the flaw arising from the late disclosure of witness statements since they constitute crucial evidence on which the impugned decision rests and, by definition, proceedings before the Tribunal take place only a posteriori.
It should be borne in mind that, in the two judgments referred to by the Organization, the Tribunal emphasised that a staff member is entitled to be apprised of all material evidence that is likely to have a bearing on the outcome of her or his claims (see Judgment 2767, under 7(a)) and that failure to disclose that evidence constitutes a serious breach of the requirements of due process (see Judgment 3071, under 37). Those two judgments are fully consistent with the Tribunal’s settled case law according to which, in the context of an investigation into allegations of harassment, a complainant must have the opportunity to see the statements gathered in order to challenge or rectify them, if necessary by furnishing evidence (see Judgments 3065, under 8, 3617, under 12, 4108, under 4, 4109, under 4, 4110, under 4, and 4111, under 4).
ILOAT Judgment(s): 2315, 2767, 3065, 3071, 3117, 3490, 3617, 3831, 3995, 4108, 4109, 4110, 4111
due process; harassment; witness; investigation report
Where the investigation into a harassment complaint is found to be flawed, the Tribunal will ordinarily remit the matter to the organisation concerned so that a new investigation can be conducted. However, the complainant does not wish for it to do so since she left the ILO on health grounds and, in her view, a fresh investigation would cause her additional suffering and might further jeopardise her health. She requests that the Tribunal itself consider the merits of her grievance concerning the alleged harassment. In that regard, she cites Judgment 3170, under 25.
In view of the time which has elapsed since the disputed events, and as the complainant has now left the Organization, it would no longer serve any useful purpose to order the holding of a fresh investigation.
ILOAT Judgment(s): 3170
case sent back to organisation; inquiry; harassment; investigation
The complainant requests the Tribunal to order that disciplinary action be taken against the officials whom she accuses of harassment. In addition to the fact that in this case harassment could not be established, the Tribunal points out that such a request is, in any event, outside its jurisdiction (see Judgment 3318, under 12, and the case law cited therein).
ILOAT Judgment(s): 3318
request to subject someone to disciplinary proceedings