Judgment No. 4343
The complaint is dismissed.
The complainant challenges the decision to demote him by two grades as a disciplinary measure for harassment.
misconduct; disciplinary measure; harassment; complaint dismissed
[I]t should be recalled that the complainant bears the burden of proving that there was manifest error in the contested fact-finding. The complainant alleges that the Director General’s decision is, in effect, tainted by erroneous fact-finding by OIOS and/or the JDB. He argues that OIOS did not take into consideration his denials to the allegations or other aspects of his evidence or comments which he made during the investigation and on the draft report. However, as the Tribunal stated in Judgment 3640, consideration 23, the fact that denials were not deemed convincing does not in any way imply that they were not duly taken into consideration.
Jugement(s) TAOIT: 3640
evidence; burden of proof
[I]t is firmly established in the case law that the question of whether or not harassment has occurred must be determined in the light of a careful examination of all the objective circumstances surrounding the events complained of by the alleged victim (see Judgment 3640, consideration 14, and the case law cited therein). Alleged instances of similar conduct involving other staff members would plainly be relevant in this respect.
Jugement(s) TAOIT: 3640
The Tribunal’s case law accepts that there may be situations in which an organization can refuse to provide the subject of disciplinary proceedings with the transcripts of witness interviews without committing a breach of due process. An example is provided by Judgment 3640, where the issue of the need to reconcile the requirements of due process with the confidentiality of harassment investigations was dealt with in considerations 17 to 22. In that judgment, the Tribunal recalled its case law according to which “a staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him” and, “under normal circumstances, such evidence cannot be withheld [by this authority] on the grounds of confidentiality (see Judgment 2229, under 3(b)), to which Judgment 3295, under 13, refers)”. In consideration 20, the Tribunal observed that, “as is expressly indicated by the use of the terms ‘as a general rule’ and ‘under normal circumstances’ [...], the case law in question does allow some exceptions to the principle which it establishes”. The Tribunal held that:
“[W]here disciplinary proceedings are brought against an official who has been accused of harassment, testimonies and other materials which are deemed to be confidential pursuant to provisions aimed at protecting third parties need not be forwarded to the accused official, but she or he must nevertheless be informed of the content of these documents in order to have all the information which she or he needs to defend herself or himself fully in these proceedings. As the Tribunal has already had occasion to state, in order to respect the rights of defence, it is sufficient for the official to have been informed precisely of the allegations made against her or him and of the content of testimony taken in the course of the investigation, in order that she or he may effectively challenge the probative value thereof (see Judgment 2771, under 18).”
It is therefore necessary to consider whether the evidence in the present case shows that the complainant was sufficiently informed of the content of the witness statements, even though they were not shared with him, as there would have been “a serious breach of due process” if he had not been so informed (see Judgment 3137, under 6).
Jugement(s) TAOIT: 2229, 2771, 3137, 3295, 3640
due process; disciplinary procedure; harassment; witness; confidentiality
[W]hereas the Director General considered that the length of the complainant’s prior satisfactory service and unblemished record could, in principle, be mitigating factors, he concluded that these factors were outweighed by other factors, including the serious incidents of harassment which were complained of. He also considered it an aggravating factor that as a senior staff member the complainant was expected to act as a role model, and that he had failed to express remorse for the incidents at any time. The Tribunal finds that based on the foregoing, the disciplinary sanction of demotion by two grades, imposed by the Director General in the exercise of his discretionary authority, was not disproportionate.
proportionality; disciplinary measure; demotion