Judgment No. 3831
1. The IAEA shall pay the complainant moral damages in the amount of 15,000 euros.
2. All other claims are dismissed.
The complainant challenges the decision to dismiss her allegations of harassment.
complaint allowed; harassment
[W]hether the Appendix G procedures are comparable to those of other international organisations is irrelevant.
rule of another organisation
A consideration of the [organisation]’s claim of confidentiality in this case is unnecessary. The fact that it voluntarily produced a copy of the [...] report with minimal redactions in its reply in these proceedings before the Tribunal completely undermines the claim of confidentiality.
delay; confidential evidence; disclosure of evidence
Without more, a 25-month delay in the investigation of a harassment complaint is inordinate. However, it is also observed that the claim in the instant case was factually complex. It involved allegations against several individuals requiring a detailed examination of multiple alleged incidents spanning over a long period of time. It also involved a consideration by the [organisation] of voluminous documentation and multiple updates to the allegations. In addition, there were difficulties securing the availability of witnesses. In these circumstances, it cannot be said that the delay was unreasonable.
internal appeal; delay
Where any internal appeal body has heard evidence and made findings of fact, the Tribunal will only interfere in the case of manifest error (see Judgment 3597, under 2, and the cases cited therein).
Jugement(s) TAOIT: 3597
internal appeals body; evidence; manifest error
[T]his case illustrates the difficulties that accrue from a failure to disclose materials in a timely manner. In addition to compromising a staff member’s ability to challenge an administrative decision in the internal appeal, it also undermines the purpose of the pleadings and negatively impacts the adjudicative process before the Tribunal.
confidential evidence; disclosure of evidence; due process
[T]he Tribunal recognizes that while it should not happen, an erroneous statement in a pleading may occur due to inadvertence. However, inadvertence cannot account for the complainant’s multiple mischaracterizations of events and statements in reports in her pleadings. Additionally, the expression of overt hostility is disrespectful and has no place in pleadings.
Considerations 11 and 14-16
It is [...] important to note that beyond a provision in the OIOS Procedures which provides that the reporter of the alleged misconduct shall be informed that the investigation has been concluded, there are no provisions in the IAEA Administrative Manual that have been referred to by the parties which provide for or authorize the disclosure of any investigative materials or the OIOS report to the reporter of the alleged misconduct. Further, Judgment 3250 relied on by the complainant does not support such disclosure. In that case, the Tribunal did not make a finding regarding disclosure, as the organisation had provided the relevant report to the complainant prior to the filing of the complaint with the Tribunal. Thus, in the present case, at the time the complainant was informed of the Administration’s decision to close her harassment case, the IAEA was under no obligation, statutory or otherwise, to disclose the OIOS report or its investigative materials to the complainant. However, this does not end the matter.
Additionally, although the case law establishes that due process requires that the subject of an investigation is entitled to comment on an investigation report in order to respond to the allegations against her or him, the case law does not extend this right to the reporter of alleged misconduct.
Although the IAEA accepts that an administrative decision cannot be based on material that was not provided to the staff member, it points out that in stating that this principle is a “general rule” the Tribunal has acknowledged that there are exceptions to this general rule. For example, in Judgment 3264, under 16, the Tribunal recognized that in principle there may be a reason in law for non-disclosure of a report; in Judgment 3272 the Tribunal affirmed the confidentiality of records of the discussions regarding the merits of applicants for a post; and in Judgment 2700, under 6, the Tribunal accepted that “there may indeed be some special cases in which a higher interest stands in the way of the disclosure of certain documents”.
As a further example, the IAEA points to Judgment 3287 where the Tribunal, at consideration 16, observed that the case under consideration provided “an example of where a specific provision effectively denying disclosure for the purposes of promoting confidential communications with an internal auditor should be maintained fully and given effect.” The IAEA contends that this reasoning is equally applicable in the present case. It argues that paragraph 6 and other related provisions in the OIOS Procedures are essential to ensuring an objective and effective investigative system. The IAEA’s reliance on this case may be conveniently dealt with here. The Tribunal’s observation in Judgment 3287 does not support the IAEA’s argument. The issue in that case was whether the provision in the organisation’s Internal Audit Charter justified the organisation’s refusal to provide the complainant in that case with a copy of an Internal Audit and Oversight Division report. Relevantly, the request for disclosure was made shortly after the completion of the report and before any internal proceedings had been initiated. Thus, it was not a situation in which a final administrative decision adversely affecting the complainant was based, or was intended to be based on the report, as in this case.
Jugement(s) TAOIT: 2700, 3250, 3264, 3272, 3287
disclosure of evidence