Harassment (642, 679, 820, 827,-666)
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Keywords: Harassment
Total judgments found: 180
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Judgment 4344
131st Session, 2021
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to close the case on his allegations of harassment as unsubstantiated.
Judgment keywords
Keywords:
complaint allowed; harassment;
Consideration 3
Extract:
Regarding an organization’s duties where harassment complaints are made, the Tribunal has stated, for example, in Judgment 4207, consideration 15, that an international organization has a duty to provide a safe and adequate working environment for its staff members and that given the serious nature of a claim of harassment, an organization has an obligation to initiate the investigation itself. It further stated that the investigation must be initiated promptly, conducted thoroughly and the facts must be determined objectively and in their overall context and that upon the conclusion of the investigation, the complainant is entitled to a response from the Administration regarding the claim of harassment. Moreover, a person who makes a harassment complaint has a duty to substantiate that claim. The Tribunal’s case law states 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 and that an allegation of harassment must be borne out by specific facts, the burden of proof being on the person who pleads it, but there is no need to prove that the accused person acted with intent (see, for example, Judgment 3871, consideration 12).
Reference(s)
ILOAT Judgment(s): 3871, 4207
Keywords:
burden of proof; harassment; investigation;
Consideration 8
Extract:
The Tribunal [...] recalls that it is not its role to reweigh the evidence before an investigative body which, as the primary trier of facts, has had the benefit of actually seeing and hearing the persons involved, and of assessing the reliability of what they have said. For that reason, such a body is entitled to considerable deference. The Tribunal will only interfere if there is manifest error in OIOS’s decision to close the complainant’s complaint as unsubstantiated because its assessment was unable to corroborate his allegation of harassment (see, for example, Judgment 4291, consideration 12). In the present case, the Tribunal finds that on the evidence which was before OIOS at the material time it could reasonably have concluded that the complainant’s allegation of harassment was not corroborated. The Tribunal further finds that in the absence of manifest error vitiating OIOS’s conclusion, OIOS did not breach applicable procedure by determining that an investigation was not warranted.
Reference(s)
ILOAT Judgment(s): 4291
Keywords:
harassment; investigation;
Judgment 4343
131st Session, 2021
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to demote him by two grades as a disciplinary measure for harassment.
Consideration 8
Extract:
[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.
Reference(s)
ILOAT Judgment(s): 3640
Keywords:
evidence; harassment;
Judgment keywords
Keywords:
complaint dismissed; disciplinary measure; harassment; misconduct;
Considerations 13-14
Extract:
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).
Reference(s)
ILOAT Judgment(s): 2229, 2771, 3137, 3295, 3640
Keywords:
confidentiality; disciplinary procedure; due process; harassment; witness;
Judgment 4313
130th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former official of the International Labour Office, challenges the decision to dismiss her harassment grievance.
Judgment keywords
Keywords:
complaint allowed; harassment;
Considerations 2-3
Extract:
Several new features were introduced by the amendment of Article 13.4 of the Staff Regulations on the procedure to be followed in cases of harassment. While the introduction of the duty to conduct an independent investigation, unless the grievance is irreceivable or the Director of the Human Resources Development Department is satisfied that the facts have already been fully established, is indisputably in line with the Tribunal’s case law, the same cannot be said of the exclusion by the new Article 13.4(18) of the Staff Regulations of the right to file an internal appeal against the decision of the Director-General with the Joint Advisory Appeals Board.
First of all, as the Tribunal has repeatedly stated, it is desirable that an official should have the opportunity to lodge an internal appeal against a decision concerning her or him (see Judgments 3732, under 2, and 4257, under 12). The right to an internal appeal is a safeguard which international civil servants enjoy in addition to their right of appeal to a judicial authority (see, for example, Judgments 2781, under 15, and 3067, under 20). This is especially true since in most matters, internal appeal bodies may normally allow an appeal on grounds of fairness or advisability, whereas the Tribunal must essentially give a ruling on points of law (see Judgment 3732, under 2).
Next, the existence of an internal appeal procedure allows the organisation, if need be, to remedy an omission or rectify an error and, if necessary, to alter its position before a final decision is taken. Moreover, it allows the staff member concerned to understand the final decision better and perhaps accept that decision as being warranted in the light of the findings of the internal appeal body, even if the outcome is unfavourable to her, thus dissuading her from filing a complaint with the Tribunal.
Finally, internal appeal procedures play a fundamental role in the resolution of disputes, owing to the guarantees of objectivity derived from the composition of the appeal bodies and their extensive knowledge of the functioning of the organisation. One of the main justifications for the mandatory nature of such a procedure is to enable the Tribunal, in the event that a complaint is ultimately filed, to have before it the findings of fact, items of information or assessment resulting from the deliberations of appeal bodies, especially those whose membership includes representatives of both staff and management, as is often the case (see Judgments 3424, under 11(b), 4072, under 1, and 4168, under 2). In this case, it appears to the Tribunal that the input of an internal appeal body would have been particularly essential given that a large number of facts have to be taken into consideration.
In conclusion, the Tribunal deeply regrets that it is no longer possible to bring an internal appeal against a harassment-related decision before the Joint Advisory Appeals Board, even though it is normally the rule at the ILO for such an appeal to be available.
Reference(s)
ILOAT Judgment(s): 2781, 3067, 3424, 3732, 4072, 4168, 4257
Keywords:
harassment; internal appeal;
Considerations 5-7
Extract:
[T]he fact that the complainant was ultimately able to obtain a copy of the witness statements during the proceedings before the Tribunal does not remedy the flaw in the investigation procedure. While the Tribunal’s case law recognises that, in some cases, the non-disclosure of evidence can be corrected when this flaw is subsequently remedied in proceedings before it (see, for example, Judgment 2767, cited by the ILO, and Judgment 3117, under 11), that is not so where the document in question is of vital importance having regard to the subject matter of the dispute (see Judgments 2315, under 27, 3490, under 33, 3831, under 16, 17 and 29, and 3995, under 5). [...]
The ILO also refers to Judgment 3071, in which the Tribunal held that the failure to disclose witness statements gathered in the course of a harassment investigation could have been corrected in the proceedings before the Joint Advisory Appeals Board. The Organization points out that the new procedure for the administrative resolution of harassment grievances does not allow internal appeals to be filed with the Joint Advisory Appeals Board when an investigation is required and seeks to argue that it may therefore rectify the investigators’ omission during the proceedings before the Tribunal.
The Tribunal cannot accept that reasoning. As discussed in consideration 3 [...], one of the advantages of the internal appeal procedure is that it allows the organisation to rectify certain irregularities in time. This is why, in Judgment 3071, the Tribunal stated that the witness statements gathered in the course of the investigation could have been disclosed to the person concerned during the proceedings before the Joint Advisory Appeals Board. In that case, the evidence was disclosed before the final decision was taken and thus the adversarial principle was observed. The fact that such proceedings are not available means that it is no longer possible to remedy the flaw arising from the late disclosure of witness statements since they constitute crucial evidence on which the impugned decision rests and, by definition, proceedings before the Tribunal take place only a posteriori.
It should be borne in mind that, in the two judgments referred to by the Organization, the Tribunal emphasised that a staff member is entitled to be apprised of all material evidence that is likely to have a bearing on the outcome of her or his claims (see Judgment 2767, under 7(a)) and that failure to disclose that evidence constitutes a serious breach of the requirements of due process (see Judgment 3071, under 37). Those two judgments are fully consistent with the Tribunal’s settled case law according to which, in the context of an investigation into allegations of harassment, 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, under 8, 3617, under 12, 4108, under 4, 4109, under 4, 4110, under 4, and 4111, under 4).
Reference(s)
ILOAT Judgment(s): 2315, 2767, 3065, 3071, 3117, 3490, 3617, 3831, 3995, 4108, 4109, 4110, 4111
Keywords:
due process; harassment; investigation report; witness;
Considerations 8-9
Extract:
Where the investigation into a harassment complaint is found to be flawed, the Tribunal will ordinarily remit the matter to the organisation concerned so that a new investigation can be conducted. However, the complainant does not wish for it to do so since she left the ILO on health grounds and, in her view, a fresh investigation would cause her additional suffering and might further jeopardise her health. She requests that the Tribunal itself consider the merits of her grievance concerning the alleged harassment. In that regard, she cites Judgment 3170, under 25.
In view of the time which has elapsed since the disputed events, and as the complainant has now left the Organization, it would no longer serve any useful purpose to order the holding of a fresh investigation.
Reference(s)
ILOAT Judgment(s): 3170
Keywords:
case sent back to organisation; harassment; inquiry; investigation;
Judgment 4309
130th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject his complaint of harassment.
Judgment keywords
Keywords:
complaint dismissed; harassment; late appeal;
Judgment 4302
130th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the final decision taken on his request for review of his 2016 performance appraisal.
Consideration 4
Extract:
WHO correctly submits that the complainant’s claims are irreceivable to the extent that they are based on his allegations of harassment, which are the subject of separate proceedings (see, for example, Judgments 3291, under 6, and 2742, under 16).
Reference(s)
ILOAT Judgment(s): 2742, 3291
Keywords:
harassment;
Judgment 4299
130th Session, 2020
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss his claim for moral damages for harassment.
Judgment keywords
Keywords:
complaint dismissed; harassment;
Considerations 4-5
Extract:
[T]here is a material difference between an official alleging she or he had been harassed in the context of alleging misconduct, on the one hand, and an official alleging she or he had been harassed in the context of seeking protection from the harassment, on the other. In the latter situation, the organization’s primary obligation is to investigate whether there has been harassment and, if satisfied that there has been, take steps to prevent any further harassment. This obligation is part of a more general obligation to ensure that officials work in a safe working environment free from physical and psychological risk (see, for example, Judgment 4171, consideration 11). Those steps might include counselling the perpetrators of the harassment or relocating the staff member the subject of the harassment to another workplace or even another position.
It is true that a staff member who has, in the latter situation just discussed, established she or he has been harassed may also be entitled to an award of moral damages by the organization for the harassment (see, for example, Judgment 4158, consideration 3). Whether there is such an entitlement may depend on the terms of the regime in place within the organization to deal with harassment grievances. It is certainly something that can be awarded in proceedings in the Tribunal (see Judgment 4241, considerations 24 and 25). However, what is important is that, even if moral damages might be awarded, that is a subsidiary remedy or relief available in cases of this type when harassment is established. As just discussed, the primary obligation of the organization if harassment is proved is to protect the complainant and prevent further harassment.
Reference(s)
ILOAT Judgment(s): 4158, 4171, 4241
Keywords:
harassment; moral injury;
Consideration 8
Extract:
Even if [...] the Director General erred in the impugned decision in affording the OIOS report a status it did not warrant and declining to consider the matter himself, no purpose would be served by setting the decision aside and remitting the matter to the IAEA. The complainant has not been a staff member of the IAEA for over four years. Plainly enough, the IAEA does not now have any obligation to ensure the complainant is not harassed in the workplace. Indeed, [...] the complainant was no longer a staff member at the time he submitted his harassment complaint [...], a year after his separation from service. Resolving his grievance for this purpose of ascertaining whether there had been harassment and, if so, protecting the complainant in the workplace would be manifestly futile.
Keywords:
case sent back to organisation; harassment;
Judgment 4297
130th Session, 2020
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to reject his formal complaint of harassment.
Consideration 7
Extract:
[T]he complainant suggests he would have been prejudiced by advice he said he received from the OPCW that his challenges to the appointment of the investigators did not involve a reviewable administrative decision and thus, it is said, he waived the right to file a complaint before the Tribunal in relation to the decision concerning the manner in which the investigation was proceeding. The submission fails to recognise that a decision concerning the composition of an investigating panel is not a final administrative decision amenable to review by the Tribunal but merely a step in the process leading to a final administrative decision and may, as such, be challenged before the Tribunal only in the context of a complaint impugning the final decision (see, for example, Judgment 4131, consideration 4).
Reference(s)
ILOAT Judgment(s): 4131
Keywords:
administrative decision; harassment; inquiry; investigation; step in the procedure;
Judgment keywords
Keywords:
complaint dismissed; harassment; inquiry; investigation;
Judgment 4296
130th Session, 2020
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant requests that allegedly offensive remarks be removed from an investigation report.
Judgment keywords
Keywords:
cause of action; complaint dismissed; harassment; impugned decision; investigation report;
Judgment 4291
130th Session, 2020
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the dismissal of his complaint of harassment and abuse of authority.
Judgment keywords
Keywords:
complaint dismissed; harassment;
Consideration 12
Extract:
The complainant’s submissions [...] essentially ask the Tribunal to appraise the evidence presented in the OIOS Preliminary Assessment and in the Internal Audit Investigation Report, and to rule that the Appeals Committee and the Director General have erred in their assessments of the evidence. In Judgment 3593, consideration 12, the Tribunal stated as follows:
“[I]t 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 4091, consideration 17, 3882, consideration 13, and 3682, consideration 8.)
Reference(s)
ILOAT Judgment(s): 3593, 3682, 3882, 4091
Keywords:
evidence; harassment; inquiry; investigation;
Judgment 4289
130th Session, 2020
International Centre for Genetic Engineering and Biotechnology
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to renew her appointment for unsatisfactory performance and the decision to reject her harassment complaint.
Judgment keywords
Keywords:
complaint allowed; fixed-term; harassment; non-renewal of contract; performance evaluation;
Consideration 10
Extract:
[T]he approach of the Advisory Panel was fundamentally flawed. In its report [...], the Advisory Panel set out and answered or addressed a series of propositions. The first proposition was: “whether the allegations contained in the [complaint] are sufficiently grounded in fact beyond reasonable doubt and are made in good faith”. The Advisory Panel answered this proposition in the negative. A staff member alleging harassment, and a fortiori in an investigation on a preliminary basis of the type being undertaken, does not need to establish, nor does the person or body evaluating the claim, that the facts establish beyond reasonable doubt that harassment occurred. While an allegation of harassment may found disciplinary proceedings in which the standard of “beyond reasonable doubt” would apply, it has no application in the assessment of the claim of harassment where the staff member is seeking workplace protection or damages or both. This issue has recently been addressed by the Tribunal (see Judgment 4207, consideration 20).
Reference(s)
ILOAT Judgment(s): 4207
Keywords:
harassment; standard of proof;
Consideration 9
Extract:
The ICGEB did not have, at the time, a formal written policy concerning the investigation of harassment complaints. The Tribunal’s case law requires that such complaints be investigated promptly and thoroughly (see, for example, Judgment 3071, consideration 36).
Reference(s)
ILOAT Judgment(s): 3071
Keywords:
harassment;
Judgment 4288
130th Session, 2020
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to reject his allegations of harassment.
Judgment keywords
Keywords:
complaint dismissed; harassment;
Consideration 3
Extract:
Conduct over a period of time can inform the characterisation of particular conduct as harassment (see Judgment 4233, under 3).
Reference(s)
ILOAT Judgment(s): 4233
Keywords:
harassment;
Judgment 4286
130th Session, 2020
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject her claim of retaliation/harassment.
Judgment keywords
Keywords:
complaint allowed; harassment; institutional harassment; retaliation;
Consideration 17
Extract:
The Appeal Board’s approach to the substance of the complainant’s allegations of retaliation and reprisals, endorsed by the Director General in the impugned decision, was flawed on two bases. In the first place, its statement that the complainant had only substantiated two of the incidents upon which she relied was inaccurate. Her rejoinder in the Appeal Board’s proceedings shows that she substantiated other alleged incidents. In the second place, the Board did not appreciate that although it was not required to find the facts, that being within the purview of the IOD, it was nevertheless required to weigh the detailed evidence (including the rebuttals) which the IOD had adduced in its investigations (see Judgment 4085, under 15). As a result, the Board failed to consider whether there was an accumulation of repeated events which deeply and adversely affected the complainant’s dignity and career objectives. It also failed to consider whether there was a long series of examples of mismanagement and omissions by the Organization that compromised her dignity and career constituting institutional harassment (see, for example, Judgment 3250, under 9). The Board therefore did not consider all relevant facts and drew wrong conclusions from the facts. These failures constitute an error of law (see, for example, Judgment 2616, under 24), as well as a violation of the complainant’s right to effective appeal proceedings (see, for example, Judgment 3424, under 11(a) and (b)).
Reference(s)
ILOAT Judgment(s): 2616, 3250, 3424, 4085
Keywords:
harassment; institutional harassment; internal appeals body; mistake of law; right of appeal;
Judgment 4279
130th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject her internal complaint of psychological harassment.
Judgment keywords
Keywords:
complaint dismissed; harassment;
Consideration 11
Extract:
[T]he complainant is wrong to believe there is a contradiction between the dismissal of her harassment complaint and the Director General’s decision to issue a written reprimand to Mr V. after the investigation report was submitted.
It is true that Mr V. received a reprimand [...], even though the investigators had found that there was no need for a disciplinary sanction in this case. In view of the requirements inherent in the principle of equal treatment, the Director General considered that he should treat Mr V.’s behaviour in specifically addressing the complainant as a woman during the incident [...] as misconduct. The Director General also deemed Mr V.’s failure to account for that conduct when he was questioned about it during the meeting [...] as inappropriate, given the duties owed by the Principal Director of Resources to staff unions.
Needless to say, it is not for the Tribunal to rule on whether the sanction imposed on Mr V. was warranted, since it has not been impugned before it. However, the Tribunal observes that, in any event, the misconduct of which Mr V. is accused [...] cannot be regarded as constituting psychological harassment of the complainant. There is therefore no contradiction between the imposition of that sanction and the rejection of the internal complaint [...] seeking recognition of such harassment.
Keywords:
disciplinary measure; harassment;
Judgment 4265
129th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her allegations of harassment.
Considerations 6-8
Extract:
A key element of harassment is the perception the person the object of the conduct “may reasonably and objectively have of acts or remarks liable to demean or humiliate him/her” (see Judgment 3318, consideration 7).
Several other matters emerge from the case law. Judgment 3318 [...] says, citing earlier authority, that there is no need to prove the perpetrator of the acts complained of intended to engage in harassment, an allegation of harassment has to be borne out by specific facts and the burden of proof is on the person who pleads it. That judgment also says, citing earlier authority, that an unlawful decision or inappropriate behaviour is not enough to prove that harassment has occurred. In addition, behaviour will not be characterised as harassment or mobbing if there is a reasonable explanation for the conduct in question, though an explanation which is prima facie reasonable may be rejected if there is evidence of ill will or prejudice or if the behaviour in question is disproportionate to the matter which is said to have prompted the course taken (see Judgment 2524, consideration 25).
Finally, individual events may, over time, evidence harassment even if each of the particular individual events may be capable of being viewed more benignly (see, for example, Judgment 3485, consideration 6).
Reference(s)
ILOAT Judgment(s): 2524, 3318, 3485
Keywords:
harassment;
Judgment keywords
Keywords:
complaint allowed; harassment;
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.
Judgment keywords
Keywords:
complaint allowed; harassment;
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; investigation; respect for dignity;
Consideration 5
Extract:
It is true that the acts to which these three pleas relate can no longer, as such, be challenged before the Tribunal. However, inasmuch as the complainant maintains that they contributed to the harassment of which he considers himself to be the victim, the Tribunal must consider them. Indeed, harassment may involve a series of acts over time (see Judgments 2067, consideration 16, and 4034, consideration 16) and can be the result of the cumulative effect of several manifestations of conduct which, taken in isolation, might not be viewed as harassment (see, for example, Judgments 3485, consideration 6, and 3599, consideration 4), even if they were not challenged at the time when they occurred (see, for example, Judgment 3841, consideration 6).
Reference(s)
ILOAT Judgment(s): 2067, 3485, 3599, 3841, 4034
Keywords:
harassment; receivability of the complaint;
Consideration 6
Extract:
It is firmly established in the case law that the person alleging harassment bears the burden of proving the allegation (see Judgments 2745, consideration 20, 3347, consideration 8, 3692, consideration 18, 3871, consideration 12, and 4171, consideration 7).
Reference(s)
ILOAT Judgment(s): 2745, 3347, 3692, 3871, 4171
Keywords:
burden of proof; harassment;
Consideration 11
Extract:
In order to determine whether harassment is established, the Tribunal will refer to the Organization’s definition of harassment (see Judgments 2594, consideration 18, 4038, consideration 18, and 4039, consideration 16).
[...]
The three irregularities noted by the Tribunal, the first of which preceded the harassment claim by ten years and the second by five years, are unrelated and were committed by different persons. It cannot reasonably be concluded that, cumulatively, they are indicative of “harassing behaviour of a discriminatory, offensive, humiliating, intimidating or violent nature or an intrusion of privacy” (Article 2.9 [...]) nor that they are consistent with the creation of an “intimidating, hostile or abusive working environment or [...] used as the basis for a decision which affects [the complainant’s] employment or professional situation” (Article 13.4 of the current Staff Regulations). In the instant case, harassment is not established.
Reference(s)
ILOAT Judgment(s): 2594, 4038, 4039
Keywords:
harassment;
Judgment 4243
129th Session, 2020
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the dismissal of her complaint of discrimination and harassment.
Judgment keywords
Keywords:
complaint allowed; harassment;
Consideration 24
Extract:
The Tribunal recalls that harassment cases should be treated as quickly and efficiently as possible, in order to protect staff members from unnecessary suffering (see Judgments 3447, consideration 7, and 2642, consideration 8).
Reference(s)
ILOAT Judgment(s): 2642, 3447
Keywords:
harassment;
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.
Judgment keywords
Keywords:
complaint allowed; decision quashed; harassment;
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; investigation; witness;
Considerations 21-22
Extract:
In the Tribunal’s view, the humiliating circumstances were exacerbated on the evidence, which the IOS correctly accepted, that the DXD/MER did not invite the complainant for whom she was the first-level supervisor to regular one-on-one meetings. This was an essential supervisory duty. The IOS found that the DXD/MER could not have reasonably known that neglecting to invite the complainant to such meetings regularly would offend, humiliate or intimidate her and that her harassment complaint did not state that the DXD/MER “persistently refused to meet with her” on that basis. According to the IOS, it was open to the complainant to request such meetings if she believed that they were warranted, and it noted that the complainant was also said to be reluctant to meet with the DXD/MER. It therefore concluded that there was no evidence to support the allegation that the latter’s conduct constituted harassment in this respect. This finding was mistaken.
Regular one-on-one meetings with the complainant as a Department Director to discuss technical and administrative matters, was an essential management requirement for the DXD/MER as her first-level supervisor. It was not dependent upon a request and justification by the complainant.
Keywords:
harassment; supervision;
Consideration 24
Extract:
[T]he finding of harassment, which has been reached at the end of proceedings to which the persons called into question are not party and in which they have therefore been unable to comment, may not under any circumstances be used against them in any context other than that of the instant judgment. The conclusion is, however, that WHO/UNAIDS, which have a duty to protect each of their officials, have incurred liability towards the complainant on account of this harassment and must therefore be ordered to redress the injury which she has thus suffered.
Keywords:
harassment; liability;
Consideration 4
Extract:
[The complainant's] claim for moral damages on the ground that there was excessive delay in the investigation process is well founded. The Tribunal has consistently stated that 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 (Judgment 3447, consideration 7), and that the moral injury caused to the complainant by excessive delay will be fairly redressed by awarding her or him compensation (see, for example, Judgment 4111, consideration 9). The complainant submitted her harassment complaint on 19 January 2016. The IOS called the first witness on 24 October, some nine months later. On 13 July 2017 it submitted its report to the Executive Director, who informed the complainant by correspondence of 13 September 2017 that the matter was closed. The duration of the process was excessive both in light of the Tribunal’s case law and paragraph 2.1 of the Policy on the Prevention of Harassment at WHO[.]
Reference(s)
ILOAT Judgment(s): 3447, 4111
Keywords:
harassment; moral injury;
Consideration 9
Extract:
Regarding the applicable general principles, the Tribunal has stated 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. There is no need to prove that the perpetrator of these acts intended to engage in harassment, the main factor being the perception that the person concerned may reasonably and objectively have of acts or remarks liable to demean or humiliate her or him. The Tribunal’s case law has always recognised that an allegation of harassment has to be borne out by specific facts, the burden of proof being on the person who pleads it, it being understood that an accumulation of events over time may be cited in support of such an allegation (Judgment 4034, consideration 16). An unlawful decision or inappropriate behaviour is not enough to prove that harassment has occurred (Judgment 2861, consideration 37). The Tribunal has also held that behaviour will not be characterised as harassment or mobbing if there is a reasonable explanation for the conduct in question (Judgment 2370, consideration 17). It further stated that, on the other hand, an explanation which is prima facie reasonable may be rejected if there is evidence of ill will or prejudice (see, for example, Judgment 3996, consideration 7B).
Reference(s)
ILOAT Judgment(s): 2370, 2861, 3996, 4034
Keywords:
general principle; harassment;
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; investigation;
Consideration 7
Extract:
WHO raises receivability as a threshold issue. It argues that matters which are raised in this case are irreceivable insofar as they are covered by separate proceedings, including the complainant’s first complaint contesting the decision to reassign her as Senior Advisor, SIE, and other proceedings that are being pursued by the complainant independently of the challenge to the impugned decision to close her harassment complaint. However, it is relatively clear that the allegations insofar as they may concern those other matters are intended to establish an aspect of the unlawfulness of the decision to close the harassment complaint and the complainant’s claims are cast no wider. It is open to the complainant to follow this course (see, for example, Judgment 4149, consideration 7).
Reference(s)
ILOAT Judgment(s): 4149
Keywords:
harassment; receivability of the complaint; res judicata;
Considerations 17-19
Extract:
Contrary to the IOS’s findings, the Tribunal finds that there is sufficient evidence that the complainant suffered harassment over a period of time. The Tribunal appreciates that the DXD/MER took some of the actions complained of in the performance of her managerial and supervisory functions or out of the managerial necessity of the organization. The Tribunal also appreciates that the DXD/MER intended her Senior Advisor and the Director of her Office, Ms E. and Ms F. respectively, to assist her to coordinate her work with her four Department Directors, including the complainant. However, the actions were done in a manner which reasonably caused the complainant to feel that Ms E. and Ms F. were reviewing and supervising her work. It is also apparent from the evidence that misunderstandings occurred as to how Ms E. and Ms F. were to communicate with the complainant and the Tribunal accepts the complainant’s evidence that on occasions she did not receive responses to matters which she raised. In the Tribunal’s view, in these circumstances the complainant would have reasonably felt offended and humiliated. Ultimately, however, Ms E. and Ms F. were merely executing the orders of the DXD/MER, which also created an intimidating work environment for the complainant.
The circumstances also lead to the conclusion that, given her administrative experience and knowledge, the DXD/MER ought reasonably to have known that the complainant would be offended and humiliated by the actions. Under paragraph 3.1.3 of the Policy, it was not necessary that the actions complained of were intended to have had that effect. There is evidence, which the Tribunal accepts, that the complainant raised some of the matters that concerned her with the DXD/MER. For example, she raised her concern about the role that the Director of the DXD/MER’s Office, Ms F., played in relation to her which occasioned a meeting between the complainant, the DXD/MER, Ms E. and Ms F.
It is apparent from the evidence that, based on the orders of the DXD/MER, Ms E. and Ms F. did not operate within boundaries that the complainant was aware of, which could have prevented encroachment upon the functions set out in her job description. It is understandable that this caused the complainant to feel that the DXD/MER had inappropriately delegated some of her managerial duties to staff members in her Office. They held meetings with her in instances in which the DXD/MER, as her first-level supervisor, should have met on a one-on-one basis with the complainant as a Department Director. [...]
The uncontroverted evidence is that the Senior Advisor had informed the complainant by email that she (the Senior Advisor) and the DXD/MER had reviewed the complainant’s objectives together and that she would share their feedback with her at a short meeting. The DXD/MER had thereby clearly delegated her responsibility under the rules to the Senior Advisor, a junior to the complainant, to undertake that critical task which the DXD/MER was required to perform. In the Tribunal’s view, given the latter’s experience in senior management roles in international organizations and the leading role which she played in reforming performance management and the introduction of the new performance management system, the DXD/MER ought reasonably to have known that this action would have offended and humiliated the complainant.
Keywords:
harassment;
Consideration 23
Extract:
[A]lthough the Tribunal concludes that there is nothing in the evidence to suggest that the DXD/MER intentionally set out to unsettle the complainant, the fact remains that taking all the circumstances of the case into account, the actions taken by or on the orders of the DXD/MER were liable to offend and humiliate the complainant. Moreover, in the Tribunal’s view, a reasonable person would have found the actions offensive and humiliating. The DXD/MER ought reasonably to have known that those actions would have offended and humiliated the complainant, and that they interfered with the complainant’s ability to carry out her work and created a hostile work environment for her, thus constituting harassment in the terms set out in the Policy. This entitles the complainant to moral damages[.]
Keywords:
harassment; moral injury;
Judgment 4238
129th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to reclassify his post.
Consideration 5
Extract:
[The Tribunal's case law] states that an allegation of harassment must be borne out by specific facts, the burden of proof being on the person who pleads it (see, for example, Judgment 4034, consideration 16).
Reference(s)
ILOAT Judgment(s): 4034
Keywords:
harassment;
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.
Judgment keywords
Keywords:
complaint dismissed; harassment;
Consideration 3
Extract:
Under the Tribunal’s case law, harassment can be the cumulative effect of a series of actions which, in isolation, might not be viewed as harassment (see, for example, Judgments 3485, consideration 6, 3599, consideration 4, and 4034, consideration 16) even if they were not challenged at the time of the events (see Judgment 3841, consideration 6). However, firstly, the person alleging harassment bears the burden of proving the allegation (see Judgments 2067, consideration 5, 2100, consideration 13, 2370, consideration 9, and 2406, consideration 13) and, secondly, the only actions which can be said to constitute harassment are those for which there is no reasonable explanation (see Judgments 2370, consideration 17, 2524, consideration 25, 3447, consideration 9, 3996, consideration 7B, 4038, consideration 18, and 4108, consideration 7).
Reference(s)
ILOAT Judgment(s): 2067, 2100, 2370, 2406, 2524, 3447, 3485, 3599, 3841, 3996, 4034, 4038, 4108
Keywords:
burden of proof; harassment;
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; investigation; rules of the organisation;
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.
Judgment keywords
Keywords:
competence; complaint allowed; harassment; ratione personae; secondment;
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; investigation; moral injury;
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