Judgment No. 4471
Decision
1. The decisions of the Director General of Eurocontrol of 15 December 2016 and 14 January 2016 are set aside.
2. Eurocontrol shall provide to the complainant the preliminary investigation report subject to the conditions referred to in consideration 23 of the judgment.
3. Eurocontrol shall pay the complainant 20,000 euros in moral damages.
4. Eurocontrol shall also pay him 5,000 euros in costs.
5. All other claims are dismissed.
Summary
The complainant challenges the decision to dismiss his complaint of psychological harassment.
Judgment keywords
Keywords
complaint allowed; harassment
Consideration 3
Extract:
[T]he Tribunal does not have jurisdiction to order an organisation to take disciplinary action against an official (see Judgment 4241, consideration 4).
Reference(s)
Jugement(s) TAOIT: 4241
Keywords
competence of tribunal; request to subject someone to disciplinary proceedings; order to impose disciplinary sanctions
Consideration 10
Extract:
[O]ver one year elapsed between the lodging by the complainant of his psychological harassment complaint and the notification of the decision to close it, which informed him of the outcome of the preliminary investigation. In Judgment 4243, the Tribunal states that harassment cases should be dealt with as quickly and efficiently as possible (see also Judgment 3660, consideration 7). As the complainant rightly points out in his complaint, the Tribunal has consistently held, inter alia, in Judgments 3692, consideration 18, and 3777, consideration 7, that an organisation has a duty to conduct a prompt and thorough investigation into harassment complaints. The Policy of Eurocontrol echoes this. It provides that the Director General will, without delay, set up a preliminary investigation to ascertain whether the internal harassment complaint warrants the convening of the Disciplinary Board; it also provides that this investigation will be performed with the minimum of delay consistent with fairness to both parties (paragraph 4.7 of the Guidelines and Procedures to support the Policy). It should be added that the Tribunal emphasises in several judgments that the duty of care requires an allegation of harassment to be investigated promptly (see, for example, Judgments 2636, consideration 28, 3337, considerations 11 and 15, and 3365, consideration 26).
Reference(s)
Jugement(s) TAOIT: 2636, 3337, 3365, 3660, 3692, 3777, 4243
Keywords
administrative delay; time limit; harassment; delay in internal procedure
Consideration 11
Extract:
A delay of more than one year between the lodging by the complainant of his psychological harassment complaint and the notification of the Director General’s decision to close the case does not indicate quick and efficient handling of a harassment case or expeditious action with the minimum of delay consistent with fairness to both parties. The Tribunal’s case law recognises the harm that this may cause to a complainant (see, for example, Judgments 3347, consideration 14, and 4241, consideration 4). In its reply, Eurocontrol explains that it proved difficult to appoint investigators owing to potential conflicts of interest with the complainant; that sick leave unexpectedly delayed the appointment of one of the investigators; and that summer holidays and the need to translate the complainant’s harassment complaint delayed his interview until September 2015. In view of Eurocontrol’s obligation to act expeditiously with the minimum of delay consistent with fairness to both parties, these explanations relating to internal administrative matters are inadequate.
Reference(s)
Jugement(s) TAOIT: 3347, 4241
Keywords
moral injury; delay in internal procedure
Consideration 14
Extract:
It is plain from Judgments 4167 and 4217, which also concern complaints of psychological harassment, that a decision is rendered unlawful by the refusal of an organisation’s executive head to disclose to the joint appeals body the report of the investigation into the harassment complaint lodged by the official concerned, or at least a redacted copy thereof. Similarly, in the aforementioned Judgment 4217, considerations 4 to 6, the Tribunal points out that, according to settled case law, a staff member must, as a general rule, have access to all the evidence on which the competent authority bases its decision concerning her or him. In this case, the Joint Committee for Disputes, on whose opinion the Director General states he bases his decision of 15 December 2016, was not provided with the investigation report concerned. Nor had the complainant received it by the time he was notified on 14 January 2016 that his psychological harassment complaint had been closed. In Judgment 4081, the Tribunal recalls that the reasons for a decision must be sufficiently explicit to enable the person concerned to understand why it was taken and the Tribunal to exercise its power of review. In the present case, the Director General neither provided information nor referred to the Committee’s reasons that would allow the complainant to understand why the decision was taken.
Reference(s)
Jugement(s) TAOIT: 4167, 4217
Keywords
internal appeals body; procedural flaw; harassment; final decision; motivation; motivation of final decision; investigation report; confidentiality
Consideration 16
Extract:
At this stage of its findings, the Tribunal should in principle remit the case to the Organisation for a fresh examination of the complainant’s internal complaint [...]. However, in view of the evidence in the file and the time that has elapsed, it appears more appropriate not to remit the case but to examine the lawfulness of the decision central to the dispute, that is, the Director General’s decision [...] to dismiss the psychological harassment complaint and to close the case (see, for a comparable case, Judgment 4167, consideration 5).
Reference(s)
Jugement(s) TAOIT: 4167
Keywords
case sent back to organisation; harassment
Consideration 18
Extract:
The Tribunal has repeatedly drawn attention to a number of important general principles applicable to harassment. In Judgment 4241, consideration 9, the Tribunal states that the question whether harassment occurred must be determined in the light of a careful examination of all the objective circumstances surrounding the acts complained of. The judgment refers to the need for corroboration by specific facts.
Reference(s)
Jugement(s) TAOIT: 4241
Keywords
harassment
Considerations 19-20
Extract:
Since the Tribunal’s role is to determine whether the Director General and the preliminary investigation report on which he based his decision [...] demonstrate a careful examination of the objective circumstances surrounding the acts complained of, it is clear that the Tribunal is not in a position to do so without having the entire investigation report available. [...]
In such a situation, the Tribunal could therefore only remit the case to the Organisation for a fresh examination of the complainant’s harassment complaint for it to be properly handled.
Keywords
case sent back to organisation; disclosure of evidence; confidentiality
Consideration 22
Extract:
[T]he complainant was denied the right to have his harassment complaint dealt with within a reasonable time, to receive an adequate motivation for its dismissal and to have a copy of the preliminary investigation report concerning that complaint provided in a timely and appropriate manner. This has inevitably caused him considerable moral injury which must be redressed (see, concerning acknowledgement of moral injury in such circumstances, Judgments 4167, consideration 9, 3314, consideration 20, and 2973, consideration 18).
Reference(s)
Jugement(s) TAOIT: 2973, 3314, 4167
Keywords
moral injury; procedural flaw; harassment
Consideration 23
Extract:
Among his various claims, the complainant asks to be provided with the complete preliminary investigation report. The Tribunal notes that the Organisation has already disclosed various parts thereof to the complainant. However, [...] it was in fact required to disclose the entire report, even if that meant redacting it to the extent necessary to maintain the confidentiality of some aspects of the investigation, in particular to protect the interests of third parties. The Tribunal will therefore make such an order.
The complainant also requests access to all “testimony and interviews gathered”. However, given the requirement of confidentiality [...], the Tribunal will not grant this request.
Keywords
competence of tribunal; confidentiality; order to communicate a report
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