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Inquiry (163, 784, 860,-666)

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  • Judgment 4253


    129th Session, 2020
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, who states that he was the victim of moral harassment, claims redress for the injury he considers he has suffered.

    Consideration 3

    Extract:

    Every international organisation is bound by a duty of care to treat its staff members with dignity and avoid causing them undue and unnecessary injury (see Judgment 2067, consideration 17). It is well established that an international organisation has a duty to its staff members to investigate claims of harassment (see Judgments 3071, consideration 36, and 3337, consideration 11). Having noted that no investigation had been conducted by HRD, the JAAB itself undertook a detailed examination of the allegations. Such an approach is acceptable if the examination satisfies the requirements of the Tribunal’s case law with regard to investigations into harassment allegations: such investigations must be prompt and thorough, the facts must be established objectively and in their overall context, the law must be applied correctly and due process must be observed (see Judgments 2642, consideration 8, and 3692, consideration 18).

    Reference(s)

    ILOAT Judgment(s): 2067, 2642, 3071, 3337, 3692

    Keywords:

    harassment; inquiry; respect for dignity;



  • Judgment 4241


    129th Session, 2020
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complaint challenges the decision to dismiss her complaint of harassment as unsubstantiated.

    Considerations 11-12

    Extract:

    Although the complainant did not provide a list of witnesses in her harassment complaint, she stated therein that she had named witnesses throughout that complaint wherever relevant. She identified about twenty-four persons with reference to various allegations of harassment which she proffered. Initially, between October and November 2016, the IOS interviewed seven of those persons and then transmitted a summary of their testimony to the complainant in December 2016 for her comment. In her response, dated 13 January 2017, the complainant noted that the IOS had not interviewed her or other witnesses whom she had identified. In March 2017, the IOS called five other witnesses. It called the complainant for oral testimony in May 2017. The IOS did not call some of the persons whom the complainant had identified concerning specific allegations, the UNAIDS Chief of Staff and the UNAIDS Executive Director in particular. This was in breach of proper procedure, particularly given that the IOS has not explained why it did not hear those persons (see Judgment 4111, consideration 3).
    There was also a breach of proper procedure when, notwithstanding the clear discrepancies between critical aspects of the evidence given by the complainant and the three persons whom she accused of harassment (some of which the complainant had detailed in her response of January 2017 and later in her oral testimony), the IOS did not call those persons again to clear the discrepancies (as contemplated by Article 24 of the Investigation Process) in order to determine the truth and properly establish the facts. Moreover, the IOS erred when contrary to the indication contained in paragraph 3.1.5 of the Policy, that harassment is normally prolonged and persistent, as well as the settled principle that an accumulation of events over time may be cited in support of an allegation of harassment, the IOS rejected each allegation of harassment separately without considering whether cumulatively they provided proof of harassment.

    Reference(s)

    ILOAT Judgment(s): 4111

    Keywords:

    due process; evidence; harassment; inquiry; witness;

    Consideration 13

    Extract:

    The Tribunal has stated that it is by no means abnormal that the investigations conducted with a view to ascertaining the truth of the statements contained in a complaint should be widened to encompass other similar behaviour on the part of the alleged harasser. It noted that it is in fact often the best means of corroborating the allegations of the complainant in an area where it may be impossible to produce material evidence. It has further stated that, more generally, the question 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, for example, Judgments 3233, consideration 6, and 3640, consideration 14). The Tribunal notes that notwithstanding that Mr F.C. had testified that he sustained treatment that was similar to that which the complainant alleged at the hands of the DXD/MER, who was then his second-level supervisor, his testimony found no place in the IOS’s analysis.

    Reference(s)

    ILOAT Judgment(s): 3233, 3640

    Keywords:

    burden of proof; evidence; flaw; harassment; inquiry;



  • Judgment 4237


    129th Session, 2020
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision – taken after his resignation – to find him guilty of serious misconduct, and the decision to withhold from his separation entitlements an amount corresponding to financial losses allegedly incurred by WHO as a result of his misconduct.

    Consideration 12

    Extract:

    According to the Tribunal’s case law (see, for example, Judgments 3757, under 6, 4024, under 6, 4026, under 5, and 4091, under 17), “where an internal appeal body has heard evidence and made findings of fact, the Tribunal will only interfere if there is manifest error (see Judgment 3439, consideration 7)”. Moreover, where there is an investigation by an investigative body in disciplinary proceedings, “it is not the Tribunal’s role to reweigh the evidence collected by an investigative body the members of which, having directly met and heard the persons concerned or implicated, were able immediately to assess the reliability of their testimony. For that reason, reserve must be exercised before calling into question the findings of such a body and reviewing its assessment of the evidence. The Tribunal will interfere only in the case of manifest error (see Judgments 3682, under 8, and 3593, under 12)” (see Judgment 3757, under 6).

    Reference(s)

    ILOAT Judgment(s): 3439, 3593, 3682, 3757, 3757, 4024, 4026, 4091

    Keywords:

    evidence; inquiry; internal appeal;



  • Judgment 4233


    129th Session, 2020
    International Office of Epizootics
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to award him compensation for the moral harassment which he alleges he has suffered.

    Consideration 2

    Extract:

    It is well established that an international organisation has a duty to its staff members to investigate claims of harassment thoroughly and objectively (see, for example, Judgments 3071, consideration 36, 3314, consideration 14, 3337, consideration 11, and 4013, consideration 10). The OIE is under such an obligation even though the existing rules do not provide for any specific procedure to deal with harassment complaints. Indeed, it would be desirable for the Organisation to address this matter and to adopt such a procedure, possibly drawing on those which exist in most international organisations and on the case law of the Tribunal.

    Reference(s)

    ILOAT Judgment(s): 3071, 3314, 3337, 4013

    Keywords:

    harassment; inquiry; rules of the organisation;



  • Judgment 4227


    129th Session, 2020
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss him for misconduct.

    Consideration 11

    Extract:

    The second procedural ground raised by the complainant involves a contention that he was not provided with all evidence collected by OIGI in order to enable him to mount his defence. The defendant organization’s response in its reply is twofold. Insofar as the complainant’s grievance was that some of the documents (transcripts of interviews) he was given were redacted, the redacted information related to another investigation and was not at all relied upon in consideration of the charges against the complainant. In the circumstances of this case, there is no basis for the Tribunal to doubt this is correct. The second element of the response is that, to the extent that the complainant points to the fact that he was not given 11 transcripts of interviews until after the disciplinary measure of dismissal was imposed, the defendant organization says they were not relevant to the decision to dismiss him. The complainant had all relevant transcripts when pursuing his appeal to the WFP Executive Director and the FAO Appeals Committee and he did not then demonstrate, nor has he in these proceedings before the Tribunal, that those 11 transcripts were or even may have been relevant to the decision to dismiss him. Accordingly, this ground should be rejected.

    Keywords:

    disciplinary procedure; disclosure of evidence; due process; inquiry;

    Consideration 10

    Extract:

    The complainant argues in his brief that “the duration of the investigation process went far beyond a reasonable time to guarantee due process”. In its reply the defendant organization makes the point that the complainant does not specify how the duration of the investigation allegedly impacted upon his due process rights. The complainant does not, in his rejoinder, provide those particulars. It is by no means obvious that the time taken, which was lengthy, affected the complainant’s capacity to defend the charges or otherwise prejudiced his position. This contention should be rejected.

    Keywords:

    delay in internal procedure; due process; injury; inquiry;

    Consideration 12

    Extract:

    The third ground is that not all those who should have been interviewed were in fact interviewed. The complainant identifies five such people. The defendant organization points to the fact that he did not proffer the names of these five people when asked towards the conclusion of his interview on 17 July 2014 whether there was anyone else the investigating officers should speak to and also says, correctly, the complainant has failed to demonstrate that the decision not to interview these five people flawed, in a material way, the investigation process.

    Keywords:

    disciplinary procedure; due process; inquiry; witness;



  • Judgment 4219


    129th Session, 2020
    ITER International Fusion Energy Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, who had been seconded to the ITER Organization, challenges the decision to end his secondment and the failure to investigate his harassment allegations.

    Consideration 18

    Extract:

    While this complaint is receivable and one aspect of the complainant’s case is well founded, the question of relief is problematic. In relation to the alleged harassment, he seeks an order directed to the defendant organisation “to recognize that he has been a victim of harassment and compensate him for the damage he has suffered as a consequence of the harassment, in the amount of [euros] 50,000”. Even if it was appropriate, as a matter of principle, to make such an order, there is insufficient material before the Tribunal to undertake an assessment of whether harassment has occurred. Also, in the circumstances of this case, given that the complainant has left the ITER Organization, it would not be advisable to direct the ITER Organization to investigate his allegations (see Judgments 3639, consideration 9, or 3935, consideration 8). However, he is entitled to moral damages for the failure of the ITER Organization to do so[.]

    Reference(s)

    ILOAT Judgment(s): 3639, 3935

    Keywords:

    harassment; inquiry; moral injury;



  • Judgment 4217


    129th Session, 2020
    International Fund for Agricultural Development
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to provide her with the record of the investigation that ensued after she filed a harassment complaint against her supervisor, and the fact that she received no compensation for the moral harassment that she claims to have suffered.

    Judgment keywords

    Keywords:

    complaint allowed; decision quashed; harassment; inquiry;

    Considerations 2 & 3

    Extract:

    The complainant alleges, among other things, that her right to due process had been violated as a result of IFAD’s refusal to provide her with the investigation file containing, in addition to the investigation report itself, the minutes of the meetings held and the statements gathered. IFAD submits that it was not able to provide the file in question because the purpose of an investigation is not to share the findings with the person who lodged the complaint but to establish the facts. Nevertheless, it produced a redacted copy of the investigation report as an annex to its surrejoinder.
    In view of the fact that it did so, the Tribunal considers that there is, in any event, no need to grant the request for disclosure of the other elements of the investigation file, which is not necessary to resolve the dispute.

    Keywords:

    confidential evidence; disclosure of evidence; inquiry;



  • Judgment 4207


    129th Session, 2020
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the Director General’s decision to endorse the conclusion of the Office of Internal Oversight Services that it was unable to make a conclusive determination on her sexual harassment claim and to reject her related request for damages.

    Consideration 9

    Extract:

    [T]he IAEA takes the position that having regard to the OIOS’s operational independence, as provided in the OIOS Charter, the Director General was constrained by the findings and conclusions of the OIOS Report and by the standard of proof necessary to establish harassment identified by OIOS, namely, beyond a reasonable doubt. It is convenient to address this submission at this point. It is observed that the operational independence of OIOS, as provided for in the OIOS Charter, concerns the independence of its internal operations. It does not in any way constrain or implicate the Director General’s decision-making authority nor does it preclude judicial review of the OIOS’s findings and conclusions underpinning a Director General’s final decision. Accordingly, this submission is unfounded.

    Keywords:

    final decision; harassment; inquiry; sexual harassment;

    Consideration 10

    Extract:

    [I]t must also be observed that it is well settled in the case law that “it is not the Tribunal’s role to reweigh the evidence before an investigative body which, as the primary trier of fact, has had the benefit of actually seeing and hearing many of the persons involved, and of assessing the reliability of what they have said. For that reason such a body is entitled to considerable deference. So that where [an investigative body] has heard evidence and made findings of fact based on its appreciation of that evidence and the correct application of the relevant rules and case law, the Tribunal will only interfere in the case of manifest error” (see Judgment 3593, consideration 12).

    Reference(s)

    ILOAT Judgment(s): 3593

    Keywords:

    deference; evidence; inquiry;

    Consideration 18

    Extract:

    The Tribunal concludes that the IAEA could have and should have given the complainant a decision regarding her complaint of harassment within a reasonable time following the completion of the investigation [...]. Rather than reacting promptly in relation to the complainant’s claim of harassment, the Administration held this claim in abeyance pending the completion of the Appendix G procedure and a determination as to whether misconduct was committed. The fact that the Appendix G procedures were still ongoing did not in any way preclude the IAEA from responding to the complainant’s claim of harassment.

    Keywords:

    harassment; inquiry; misconduct; reasonable time; sexual harassment;



  • Judgment 4111


    127th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former official of the ILO, alleges that he was subjected to harassment and that the investigation into his allegations of harassment was flawed.

    Judgment keywords

    Keywords:

    complaint allowed; decision quashed; harassment; inquiry; institutional harassment;

    Consideration 8

    Extract:

    Where an investigation into a harassment complaint is found to be flawed, the Tribunal in principle remits the matter to the organization concerned so that a new investigation can be conducted. However, in this case, in view of the considerable delay occasioned by HRD and the JAAB, the Tribunal considers it appropriate not to remit the matter to the ILO.
    Since the complainant was denied the right to have his harassment grievance duly investigated, the Tribunal considers it fair to redress the moral injury so caused by ordering the Organization to pay him 15,000 Swiss francs in compensation.

    Keywords:

    flaw; harassment; inquiry; moral injury;

    Consideration 9

    Extract:

    [...] Although it must be taken into account that the complainant took a month to provide his comments and that HRD asked the investigator to respond to them, which may have taken some time, the Tribunal considers that, in view of the circumstances of the case, a period of nine months between the submission of the findings of the investigation and the notification of the decision of HRD is excessive. Harassment cases should be treated as quickly and efficiently as possible, in order to protect staff members from unnecessary suffering, but attention must also to thoroughness and procedure (see Judgment 3447, consideration 7).
    The moral injury thus caused to the complainant will be fairly redressed by awarding him compensation in the amount of 1,000 Swiss francs.

    Reference(s)

    ILOAT Judgment(s): 3447

    Keywords:

    delay; harassment; inquiry; moral injury; procedure before the tribunal;

    Consideration 3

    Extract:

    The parties do not dispute that the complainant had requested that a number of witnesses be heard, including his former supervisor [...], which was refused. [...] Any administrative decision, even when the authority exercises discretionary power, must be based on valid grounds. In this case, the refusal, without valid grounds, to hear witnesses with regard to the complainant’s allegations constitutes a breach of due process.

    Keywords:

    adversarial proceedings; breach; due process; harassment; inquiry; right to be heard;



  • Judgment 4110


    127th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former official of the ILO, alleges that he was subjected to harassment and that the investigation into his allegations of harassment was flawed.

    Consideration 4

    Extract:

    [S]ince some of the statements gathered by the investigator were neither recorded nor summarized as such in the investigation report or the annexes thereto, the complainant was unable to respond to them in the comments that he was invited to submit to HRD concerning the report. Nor was he able to verify whether the investigator, in her report, had correctly interpreted the statements of which no minutes were taken. According to the Tribunal’s case law, 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, consideration 8, and 3617, consideration 12). This did not occur in this case with regard to the unrecorded statements.
    The Tribunal therefore considers that, in these circumstances, the adversarial principle was disregarded.

    Reference(s)

    ILOAT Judgment(s): 3065, 3617

    Keywords:

    adversarial proceedings; due process; duty to inform; evidence; inquiry; right to be heard; testimony;

    Judgment keywords

    Keywords:

    complaint allowed; decision quashed; harassment; inquiry; institutional harassment;

    Consideration 9

    Extract:

    Although it must be taken into account that the complainant took a month to provide his comments and that HRD asked the investigator to respond to them, which may have taken some time, the Tribunal considers that, in view of the circumstances of the case, a period of nine months between the submission of the findings of the investigation and the notification of the decision of HRD is excessive. Harassment cases should be treated as quickly and efficiently as possible, in order to protect staff members from unnecessary suffering, but attention must also be paid to thoroughness and procedure (see Judgment 3447, consideration 7).
    The moral injury thus caused to the complainant will be fairly redressed by awarding him compensation in the amount of 1,000 Swiss francs.

    Reference(s)

    ILOAT Judgment(s): 3447

    Keywords:

    delay in internal procedure; harassment; inquiry; moral injury;

    Consideration 3

    Extract:

    The parties do not dispute that the complainant had requested that the colleagues who had also filed a harassment grievance be heard as witnesses, which was refused. [...] In the present case, the refusal, without valid grounds, to hear witnesses with regard to the complainant’s allegations constitutes a breach of due process.

    Keywords:

    adversarial proceedings; due process; evidence; harassment; inquiry; right to be heard; testimony; witness;

    Consideration 8

    Extract:

    Where the investigation into a harassment complaint is found to be flawed, the Tribunal in principle remits the matter to the organization concerned so that a new investigation can be conducted. However, in this case, in view of the considerable delay occasioned by HRD and the JAAB, the Tribunal considers it appropriate not to remit the matter to the ILO.
    Since the complainant was denied the right to have his harassment grievance duly investigated, the Tribunal considers it fair to redress the moral injury so caused by ordering the Organization to pay him 15,000 Swiss francs in compensation.

    Keywords:

    harassment; inquiry; moral injury;



  • Judgment 4109


    127th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former official of the ILO, alleges that she was subjected to harassment and that the investigation into her allegations of harassment was flawed.

    Consideration 3

    Extract:

    The parties do not dispute that the complainant had requested that the colleagues who had also filed a harassment grievance be heard as witnesses, which was refused. [...] In this case, the refusal, without valid grounds, to hear witnesses with regard to the complainant’s allegations constitutes a breach of due process.

    Keywords:

    adversarial proceedings; breach; due process; harassment; inquiry; right to be heard;

    Consideration 8

    Extract:

    Where the investigation into a harassment complaint is found to be flawed, the Tribunal in principle remits the matter to the organization concerned so that a new investigation can be conducted. However, in this case, in view of the considerable delay occasioned by HRD and the JAAB, the Tribunal considers it appropriate not to remit the matter to the ILO.
    Since the complainant was denied the right to have her harassment grievance duly investigated, the Tribunal considers it fair to redress the moral injury so caused by ordering the Organization to pay her 15,000 Swiss francs in compensation.

    Keywords:

    flaw; harassment; inquiry; moral injury;

    Consideration 9

    Extract:

    [I]n view of the circumstances of the case, a period of nine months between the submission of the findings of the investigation and the notification of the decision of HRD is excessive. Harassment cases should be treated as quickly and efficiently as possible, in order to protect staff members from unnecessary suffering, but attention must also be paid to thoroughness and procedure (see Judgment 3447, consideration 7).

    Reference(s)

    ILOAT Judgment(s): 3447

    Keywords:

    delay; harassment; inquiry; procedure before the tribunal;



  • Judgment 4108


    127th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former official of the ILO, alleges that she was subjected to harassment and that the investigation into her allegations of harassment was flawed.

    Consideration 3

    Extract:

    The parties do not dispute that the complainant had requested that the colleagues who had also filed a harassment grievance be heard as witnesses, which was refused. [...] In this case, the refusal, without valid grounds, to hear witnesses with regard to the complainant’s allegations constitutes a breach of due process.

    Keywords:

    adversarial proceedings; due process; harassment; inquiry; testimony;

    Consideration 8

    Extract:

    Where the investigation into a harassment complaint is found to be flawed, the Tribunal in principle remits the matter to the organization concerned so that a new investigation can be conducted. However, in this case, in view of the considerable delay occasioned by HRD and the JAAB, the Tribunal considers it appropriate not to remit the matter to the ILO.
    Since the complainant was denied the right to have her harassment grievance duly investigated, the Tribunal considers it fair to redress the moral injury so caused by ordering the Organization to pay her 15,000 Swiss francs in compensation.

    Keywords:

    flaw; harassment; inquiry; moral injury;

    Consideration 4

    Extract:

    [S]ince some of the statements gathered by the investigator were neither recorded nor summarized as such in the investigation report or the annexes thereto, the complainant was unable to respond to them in the comments that she was invited to submit to HRD concerning the report. Nor was she able to verify whether the investigator, in her report, had correctly interpreted the statements of which no minutes were taken. According to the Tribunal’s case law, 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, consideration 8, and 3617, consideration 12). This did not occur in this case with regard to the unrecorded statements.
    The Tribunal therefore considers that, in these circumstances, the adversarial principle was disregarded.

    Reference(s)

    ILOAT Judgment(s): 3065, 3617

    Keywords:

    adversarial proceedings; due process; duty to inform; evidence; inquiry; procedural flaw; right to be heard; testimony;

    Consideration 9

    Extract:

    [I]n view of the circumstances of the case, a period of nine months between the submission of the conclusions of the investigation and the notification of the decision of HRD is excessive. Harassment cases must be treated as quickly and efficiently as possible, in order to protect staff members from unnecessary suffering, but attention must also be paid to thoroughness and procedure (see Judgment 3447, consideration 7).

    Reference(s)

    ILOAT Judgment(s): 3447

    Keywords:

    delay; harassment; inquiry;



  • Judgment 4106


    127th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decision to apply to him the sanction of discharge.

    Consideration 9

    Extract:

    [T]he requirement spelled out in the Tribunal’s case law that “an investigation be conducted in a manner designed to ascertain all relevant facts without compromising the good name of the employee and that the employee be given an opportunity to test the evidence put against him or her and to answer the charge made” (see Judgments 2475, under 7, 2771, under 15, 3200, under 10, 3315, under 6, 3682, under 13, 3872, under 6, and 3875, under 3) was respected in the present case. At the outset, it is observed that there is no obligation to inform a staff member that an investigation into certain allegations will be undertaken (see Judgment 2605, under 11). The evidence shows that the complainant was informed at the outset of the investigation interview that the interview related to allegations of misconduct and that he was given the opportunity to weigh the evidence presented, respond to the allegations, and to provide any evidence or name any witnesses to support his responses. He was also given the opportunity to submit any further evidence or information in his defence prior to the conclusion of the investigation. There is no principle in the Tribunal’s case law which supports the complainant’s claim that he should have received detailed information about the allegations prior to the investigation interview.

    Reference(s)

    ILOAT Judgment(s): 2475, 2605, 2771, 3200, 3315, 3682, 3872, 3875

    Keywords:

    disciplinary procedure; due process; duty to inform; inquiry; right to reply;



  • Judgment 4101


    127th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, who alleges that he was subjected to moral harassment, challenges the refusal to extend his special leave without pay and to grant him certain accommodations with regard to his working arrangements.

    Consideration 16

    Extract:

    [T]he Director of the Centre was not obliged to refer the matter to a Commission of Inquiry. Paragraph 22 of Circular No. 13/2009 expressly provides that the Director may close the file “if the accusations of the alleged victim are insufficiently well founded”. In that case, her only obligation was to respond point by point to the complainant’s allegations. Considering the nature of the allegations and the answers given, the Director was not required to provide any further justification to the complainant (see Judgment 3149, consideration 17). The sole purpose of the preliminary assessment of such a complaint is to determine whether there are grounds for opening an investigation (see Judgment 3640, consideration 5). In the absence of a contrary provision, the adversarial principle did not need to be applied at this preliminary stage of the procedure for opening a harassment investigation.

    Reference(s)

    ILOAT Judgment(s): 3149, 3640

    Keywords:

    adversarial proceedings; harassment; inquiry; motivation;



  • Judgment 4091


    127th Session, 2019
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant primarily challenges the amount of compensation offered to her by the IAEA in respect of a harassment complaint.

    Consideration 17

    Extract:

    [T]he complainant is asking the Tribunal to reweigh the evidence. As stated in Judgment 3593, under 12, the Tribunal has consistently held:
    “[...] that it is not the Tribunal’s role to reweigh the evidence before an investigative body which, as the primary trier of fact, has had the benefit of actually seeing and hearing many of the persons involved, and of assessing the reliability of what they have said. For that reason such a body is entitled to considerable deference. So that where in the present case the Investigation Panel has heard evidence and made findings of fact based on its appreciation of that evidence and the correct application of the relevant rules and case law, the Tribunal will only interfere in the case of manifest error.”
    (See also Judgments 3995, under 7, 3882, under 13, and 3682, under 8.)

    Reference(s)

    ILOAT Judgment(s): 3593, 3682, 3882, 3995

    Keywords:

    evidence; inquiry; internal appeals body; judicial review; manifest error; testimony;



  • Judgment 4080


    127th Session, 2019
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant claims that the Organisation has breached its duty of care towards him following an accident at work, involving a contractor, which resulted in national judicial proceedings.

    Consideration 8

    Extract:

    Regarding the disclosure of the internal audit report, [...] the Tribunal notes that although the report was eventually forwarded to the complainant on 18 November 2015, following the Director General’s decision of 3 November 2015 to bring disciplinary proceedings against him, the Organisation should have forwarded it to the complainant, under its duty of care towards staff members, at the time when the Belgian Labour Prosecutor’s Office was contemplating taking criminal action against him. Indeed, from an extract of the draft internal audit report included in the dossier, it is clear that in all likelihood the report contained information which could have helped the complainant to defend his case in the event of such action.

    Keywords:

    disclosure of evidence; duty of care; duty to inform; inquiry;



  • Judgment 4065


    127th Session, 2019
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: In his second complaint, the complainant challenges the decision to dismiss him, while he was on sick leave, for misconduct. In his third complaint, he challenges the dismissal decision on the merits.

    Consideration 5

    Extract:

    Inasmuch as the complainant challenges a disciplinary decision, it is recalled that consistent precedent has it that such decisions are within the discretionary authority of the executive head of an international organization and are subject to limited review. The Tribunal will interfere only if the decision is tainted by a procedural or substantive flaw. Additionally, the Tribunal will not interfere with the findings of an investigative body in disciplinary proceedings unless there is manifest error (see, for example, Judgment 3872, under 2).

    Reference(s)

    ILOAT Judgment(s): 3872

    Keywords:

    disciplinary procedure; discretion; inquiry; judicial review; procedural flaw;



  • Judgment 4064


    127th Session, 2019
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges a request made by the Administration of the FAO that he provide comments, while he was on certified sick leave, on a report issued by the Investigation Panel appointed to investigate allegations of harassment against him.

    Judgment keywords

    Keywords:

    complaint allowed in part; due process; harassment; inquiry; sick leave;

    Considerations 8-9

    Extract:

    Based on the evidence before the Tribunal, there is nothing in the FAO rules regime and no proven practice which provide guidance on how the requirement of Part II(b)(iv)(g) of the Policy on the Prevention of Harassment is to be fulfilled where a staff member who is accused of harassment is on certified sick leave. Given the FAO’s duty under the Policy on the Prevention of Harassment to investigate harassment complaints, it is reasonable that it could ask a staff member who is on sick leave to comment upon an IP report if doing so would not exacerbate the illness which occasioned the grant of sick leave and if she or he is fit to do so.
    [...] In the Tribunal’s view, the FAO took reasonable steps to discharge its duty to accord due process to the complainant, as well as its duty of care and its duty to be fair to him, while it sought to discharge its duty to implement its Policy on the Prevention of Harassment.

    Keywords:

    due process; duty of care; harassment; health reasons; inquiry; medical fitness; sick leave;



  • Judgment 4048


    126th Session, 2018
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to investigate her allegations of institutional harassment.

    Judgment keywords

    Keywords:

    complaint dismissed; harassment; inquiry;



  • Judgment 4039


    126th Session, 2018
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, who alleges that he is the victim of institutional harassment and discrimination, seeks redress for the injury he considers he has suffered.

    Consideration 6

    Extract:

    The sole purpose of an investigation is to establish the existence of facts that may be contested during disciplinary proceedings in which the rights of defence must be scrupulously safeguarded. The Tribunal considers that it is “clear that the rules relating to due process, in particular, which must be respected scrupulously during the actual disciplinary proceedings [...] (see, for example, Judgment 2475), do not apply during the investigation of matters brought before an internal auditing body” (see Judgment 2589, under 7). The Tribunal holds that, while it is preferable to notify the person concerned that she or he is to be the subject of an investigation, except where this would be liable to compromise the outcome of the investigation, such notification is not a requisite element of due process (see Judgment 3295, under 8).
    Once the investigation is opened, the organisation is under an obligation to provide the person concerned with an opportunity to explain her or his conduct and to present any information on her or his behalf. The Uniform Guidelines for Investigations do not, however, stipulate when the person concerned must be given this opportunity, since the aforementioned paragraph 17 of the Guidelines provides that this matter “is regulated by the rules, policies and procedures of the Organization”. In the International Labour Office there is no internal manual or practical guide setting out the procedure to be followed when conducting such interviews. Like the JAAB, the Tribunal considers that the above-mentioned opportunity should preferably be afforded before rather than during the interview. However, in this case, there is nothing to indicate that the complainant was in any way prevented from defending himself on account of the manner in which the investigation was conducted (see, in this connection, Judgment 2771, under 18).

    Reference(s)

    ILOAT Judgment(s): 2475, 2589, 2771, 3295

    Keywords:

    disciplinary procedure; inquiry; right to be heard;

    Considerations 7-9

    Extract:

    [T]he Tribunal has consistently held that no general principle obliges an international organisation to make provision for staff members under investigation to be assisted by a staff representative when they are interviewed (see Judgment 2589, under 7). [...]
    It is true that new facts discovered during an investigation may sometimes corroborate the original allegation. In this case, however, the alleged inflation of the complainant’s overtime during the 2013 International Labour Conference has nothing to do with the allegation relating to the circumstances in which his spouse was employed. The suggestion that the excessive amount of overtime that the complainant was accused of having claimed might have been explained by the financial loss resulting from the refusal to recruit his spouse for the Conference does not in itself establish an adequate link between the two allegations.
    As this was a new allegation, the IAO should have acted in accordance with paragraphs 27 to 30 of the Uniform Guidelines for Investigations and should at least have determined whether there were legitimate grounds warranting a new investigation on that issue. There is nothing in the file to show – and the defendant organisation does not submit – that the IAO conducted a preliminary evaluation before investigating the new allegation.

    Reference(s)

    ILOAT Judgment(s): 2589

    Keywords:

    disciplinary procedure; inquiry;

    Considerations 10-16

    Extract:

    [T]he Tribunal draws attention to the fact that the decision whether or not to initiate an investigation is taken at the Organization’s discretion. However, once an investigation is opened, it must be conducted expeditiously without the suspect having to suffer the consequences of the investigators’ possible lack of time. An international organisation has an obligation to initiate the investigation in a timely manner and the corollary obligation of ensuring that the internal body responsible for investigating and reporting on the allegations has the necessary resources to carry out that responsibility (see, in this connection, Judgment 3347, under 14).
    In these circumstances the duration of the investigation – more than 21 months – is inordinate, as is the period of 12 months between the date on which the complainant was first interviewed and the date on which he was notified of the findings of the investigation. [...]
    With regard to the length of the investigation in particular, the Tribunal pointed out in Judgment 3295, under 7, that an organisation must investigate allegations of misconduct in a timely manner both in the interests of the person being investigated and the organisation. These interests include, among other things, safeguarding the reputations of both parties and ensuring that evidence is not lost. Consequently it must be found that the delay in conducting the investigation caused the complainant moral injury which must be redressed (see, in this connection, Judgment 3064, under 11).

    Reference(s)

    ILOAT Judgment(s): 3064, 3295, 3347

    Keywords:

    inquiry; moral injury; time limit;

    Consideration 3

    Extract:

    As the Organization recalls, according to the Tribunal’s case law, a decision to open an investigation into misconduct is not a decision that affects the official’s status (see Judgments 3236, under 12, and 2364, under 3 and 4). The purpose of such an investigation, which may be compared – in terms of criminal justice – to the investigation that precedes possible criminal proceedings, is not to gather evidence which can be used against the person concerned, but to provide the competent authority with information enabling it to decide whether the opening of a disciplinary procedure is warranted. Since it does not affect the complainant’s legal situation or alter her or his status, the decision to open an investigation does not constitute an “administrative decision” which may be impugned before the Tribunal (see the aforementioned Judgment 2364, under 3 and 4).
    However [...] the complainant submits that this allegation, combined with others, is proof of harassment. The Tribunal must therefore ascertain whether the opening of the investigation is in itself sufficient to establish the existence of institutional harassment.

    Reference(s)

    ILOAT Judgment(s): 2364, 3236

    Keywords:

    administrative decision; inquiry; institutional harassment;

    Consideration 4

    Extract:

    The decision to open an investigation, which in no way prejudges the decision on merits of a possible sanction, lies at the discretion of the competent authority.
    In the instant case, the whistleblower had reported that the complainant’s spouse had been recruited more than once by the Office, that there had possibly been “subterfuge” because she had used different first names in the Integrated Resource Information System (IRIS) and the application listing ILO officials and that her private address was given as “c/o ILO” in IRIS. Having consulted HRD, which considered that it would be necessary to confront the officials concerned in order to determine responsibilities, and having ascertained that the complainant’s spouse had in fact been given 93 contracts since 2005, including six for the International Labour Conference between 2007 and 2012, the IAO formed the opinion that it had identified sufficient prima facie evidence to open an investigation.
    The Tribunal considers that the evidence available to the IAO at that stage justified looking into whether, apart from mentioning his family relationship in his annual family status reports, the complainant had also disclosed it to the persons whom he had contacted in order to obtain a contract for his spouse, and whether there was not a conflict of interest, given that many contracts addressed to his wife had been sent to his professional address, that he himself had signed a number of them and that he had signed his spouse’s annual certificates of earnings on behalf of the Chief of the Central Payroll Unit of the Payment Authorisation Section. Indeed, the IAO report found that these allegations were substantiated in part.
    The Tribunal therefore finds that, in opening the investigation, the Organization did not exceed the limits of its discretionary power in the matter.

    Keywords:

    discretion; inquiry;

    Considerations 5-16

    Extract:

    In principle, allegations concerning irregularities in an investigation must be brought in the context of a challenge to the final decision arising from the investigation proceedings (see, in this connection, Judgment 3236, under 11). However, in this case, there was no disciplinary decision, since the investigation showed that the allegations against the complainant were unfounded. Nevertheless, inasmuch as the complainant submits that these flaws themselves constitute proof of institutional harassment, the Tribunal must examine them, since the Tribunal’s case law has established that the question as to whether harassment has occurred must be determined in the light of a thorough examination of all the objective circumstances surrounding the events complained of (see, for example, Judgment 3871, under 12). [...]
    Be that as it may, the Tribunal must determine whether all the elements examined above amount to institutional harassment.
    The JAAB and the complainant share the view that, “taken as a whole”, the elements in question lead to the conclusion that there was institutional harassment. It is correct to say that a long series of acts and omissions evidencing mismanagement which have compromised a complainant’s dignity and career prospects may constitute institutional harassment (see Judgments 3315, under 22, and 3250, under 9), but this was not the case here. As explained above, most of the matters on which the complainant relies cannot be accepted. There was a reasonable explanation for these elements and thus they cannot be said to constitute harassment (see Judgments 3447, under 9, and 2524, under 25). Only two procedural flaws have been established, one of which is partly the consequence of the other: first, the flaw resulting from the extension of the investigation to cover a new allegation differing from that on which it was initiated and, secondly, the inordinate length of the investigation which was partly the result of that.
    The Tribunal will examine the ILO’s definition of harassment in order to determine whether these two flaws amount to an act of harassment (see Judgment 2594, under 18). [...]
    In this case, it must be recalled that an investigation is not disciplinary in nature, but that its sole purpose is to ascertain all relevant facts in order to determine whether there is sufficient evidence to initiate a disciplinary procedure (see Judgments 2771, under 15, and 2364, under 3). In accordance with paragraph 19 of the Uniform Guidelines for Investigations, both inculpatory and exculpatory information must be examined. The investigation clarified matters with the result that the complainant was not charged with any wrongdoing. He was cleared of any suspicion and his career has not been hampered. This shows that, at all events, the Organization had no wish to harm or harass him. An investigation that has been opened lawfully cannot be termed harassment. Admittedly, the unlawful extension of the investigation, which had already been inadmissibly delayed, made it unduly long. However, it is well settled that an unlawful decision or unsatisfactory conduct is not sufficient in itself to constitute harassment (see Judgments 3233, under 6, and 2861, under 37).

    Reference(s)

    ILOAT Judgment(s): 2364, 2524, 2594, 2771, 2861, 3233, 3236, 3250, 3315, 3447, 3871

    Keywords:

    disciplinary procedure; inquiry; institutional harassment;

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Last updated: 02.07.2020 ^ top