Judgment No. 3166
1. The decision of the Secretary General of the Federation of 6 May 2010 is set aside.
2. The case is remitted to the Federation for a new decision in accordance with consideration 21.
3. The Federation shall pay the complainant 5,000 Swiss francs in costs.
4. All other claims are dismissed.
The complainant alleges that he suffered harassment, mobbing and defamation on the part of his supervisors.
"It has been accepted by this Tribunal that ultimately the question of whether conduct constitutes harassment is a matter of fact involving consideration of all the circumstances (see Judgment 2553)."
Jugement(s) TAOIT: 2553
interpretation; judicial review; harassment
"[T]he JAC appears to have retreated from making the ultimate finding of harassment because the complainant’s own attitude “can be construed as ‘a reasonable explanation for the conduct in question’”. The unexpressed assumption in this conclusion is that it is a legitimate response from a senior manager for the latter to intimidate a staff member who challenges, perhaps even inappropriately, his decisions. [...] It cannot be that intimidation by a senior manager is a reasonable response to a subordinate (including a senior subordinate), even if the latter exceeds his or her role by challenging decisions of the manager. In this respect, the JAC erred in its consideration of the complainant’s grievances. There can, of course, be situations where a subordinate’s refusal to accept the authority of his supervisor provides a complete explanation for the conduct of the supervisor. An example is found in the Tribunal’s Judgment 2468. However, in this case the JAC’s findings [relate to] conduct that cannot be explained away on this basis."
Jugement(s) TAOIT: 2468
decision; advisory body; conduct; insubordination; supervisor; working relations; flaw; advisory opinion; definition; harassment
Considerations 18 and 19
"[T]he JAC made a finding of procedural irregularities in relation to the consideration of the complainant’s grievances. It recognised, as this Tribunal has stated, that an organisation has a duty to its staff members to investigate claims of harassment (see Judgment 3071). This conclusion would have warranted consideration of a remedy. However, the JAC adopted the approach, accepted by the Secretary General, that the Federation had “acted in the [complainant’s] favour” because the contract of [the alleged harasser], amongst others, had not been renewed.
The non-renewal of [that person]’s contract did not involve a vindication of the complainant’s rights. Ordinarily, the mechanism for addressing the violation of a person’s rights is to award compensation to the aggrieved person or to make an order restoring the person to the position he or she would have been in but for the violation. The nonrenewal of the contract of a person who had violated a complainant’s rights may, of course, provide moral comfort to the complainant. However, the task of the Secretary General is to determine a response in relation to a grievance formally raised and established which remedies the effect of the proven violation of rights. The non-renewal of a contract, such as occurred in the present case, does not serve this purpose."
Jugement(s) TAOIT: 3071
claim; decision; injury; material injury; moral injury; advisory body; organisation's duties; contract; non-renewal of contract; executive head; procedural flaw; compensation; harassment
complaint allowed; decision quashed; case sent back to organisation; harassment; defamation