Investigation (860, 784, 898, 902, 903, 904, 906, 907, 913,-666)
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Keywords: Investigation
Total judgments found: 172
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Judgment 4454
133rd Session, 2022
World Tourism Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decisions to reject his allegations of misconduct on the part of the Secretary-General.
Consideration 11
Extract:
In its pleas UNWTO challenges the receivability of the complaint on the basis that there was no relevant administrative decision by the Ethics Officer. At least implicitly there was (see, for example, Judgment 3747, consideration 5), and it involved a determination that there had been no harassment or retaliation, which was manifest by the decision to close, and thus finalise, the complaints.
Reference(s)
ILOAT Judgment(s): 3747
Keywords:
administrative decision; harassment; investigation;
Judgment 4406
132nd Session, 2021
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to impose upon him the disciplinary measure of reduction in grade.
Judgment keywords
Keywords:
complaint dismissed; disciplinary measure; disciplinary procedure; domestic worker; investigation;
Consideration 8
Extract:
The Tribunal notes that, as the complainant was provided with unredacted copies of the three requested documents before lodging his appeal with the GBA against the imposition of the disciplinary measure, he was able to rely on this material during the appeal proceedings. Accordingly, the Tribunal is satisfied that his right to be heard and his right to due process were not violated.
Keywords:
due process; evidence; investigation;
Judgment 4379
131st Session, 2021
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the Administration’s refusal to provide him in a timely manner with unredacted copies of documents and records relied upon by the Internal Oversight Services during the disciplinary investigation.
Judgment keywords
Keywords:
complaint dismissed; disclosure of evidence; investigation;
Judgment 4378
131st Session, 2021
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to close after an initial review and without conducting a formal investigation his harassment complaint against the WHO Internal Oversight Services.
Judgment keywords
Keywords:
complaint dismissed; harassment; investigation;
Consideration 4
Extract:
It is understandable why the complainant’s formal harassment complaint was directed against IOS. He was not necessarily informed who from that department was involved in his case. The fact that the complainant’s harassment complaint was directed against the entire IOS did not absolve WHO from investigating (see Judgment 3347, consideration 14; see also Judgment 4207, consideration 15), as the complaint could readily be construed as targeting the persons within IOS who had dealt with the complainant’s case, even if their identity was known only to the Administration. Furthermore, the Tribunal notes that paragraph 3.1.4 of the WHO Policy provides that “[h]arassment may involve a group”. Finally, WHO cannot ignore that the case law of the Tribunal recognizes institutional harassment (see Judgments 3250, 4111, 4243 and 4345) and that it should take this into account when interpreting its own rules. Accordingly, the external reviewer’s finding that the complainant’s harassment complaint was beyond the scope of the WHO Policy and was, therefore, irreceivable is an error of law. However, this error of law does not have any impact on the outcome of the present complaint, as the external reviewer also conducted an initial review of the substance of the complainant’s harassment complaint, as provided in the WHO Policy.
Reference(s)
ILOAT Judgment(s): 3250, 3347, 4111, 4207, 4243, 4345
Keywords:
harassment; investigation; mistake of law;
Consideration 25
Extract:
The complainant’s reliance on Judgments 3264 and 3137 is misplaced. It is recalled that in the present complaint the complainant contests the decision to close his harassment complaint against IOS. In the harassment complaint, the complainant identified actions taken by IOS in its investigation of allegations of misconduct made against him that he claimed amounted to harassment and abuse of power. Thus, in submitting the harassment complaint, the complainant was the reporter of possible misconduct, a potential victim of the harassment and a witness. Given that the complainant, in this case, was not the subject of the investigation process and, therefore, was not in an adversarial situation, as contemplated in Judgments 3264 and 3137, the principle of due process and the right to be heard are not applicable in these circumstances. Accordingly, the complainant’s submission that his right to be heard was violated is unfounded.
Reference(s)
ILOAT Judgment(s): 3137, 3264
Keywords:
due process; harassment; investigation; right to be heard;
Judgment 4373
131st Session, 2021
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to issue a written censure against him for breaches of his obligation to protect OPCW confidential information.
Consideration 12
Extract:
According to the Tribunal’s case law, a decision to open an investigation into misconduct is not a decision that affects the staff member’s status (see Judgments 4039, consideration 3, 4038, consideration 3, 3236, consideration 12, and 2364, considerations 3 and 4).
Reference(s)
ILOAT Judgment(s): 2364, 3236, 4038, 4039
Keywords:
investigation; misconduct; opening of an investigation;
Judgment 4347
131st Session, 2021
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision of the Director of PAHO to impose on him the disciplinary measure of reassignment with reduction in grade.
Consideration 22
Extract:
The Ethics Office did not err in expanding the scope of its investigation beyond the allegations in the harassment complaint. An organization has the authority and the duty to investigate any indications of related misconduct which it discovers in the course of an investigation on its own or through claims made by staff members. In the present case, the expanded investigation was directly related to the original allegations of misconduct. The complainant has not presented any convincing evidence that the Ethics Office abused its authority or had any conflict of interest.
Keywords:
investigation;
Consideration 26
Extract:
The complainant argues that he was disadvantaged by two distinct and irregular parallel processes, as he was not informed of the investigation into the harassment complaint against him while he was involved in Mr M.’s performance evaluation process. There is no reason for which the complainant should have been notified that he was the subject of a harassment complaint while he was involved in the performance evaluation process for the staff member who raised the complaint. The Ethics Office acted within its competence in deciding to notify him only after the investigation into his alleged misconduct had begun in order to preserve the evidence and to eliminate the potential for witness tampering or intimidation. His rights were not infringed by the delay in his notification (see, for example, Judgment 3295, consideration 8).
Reference(s)
ILOAT Judgment(s): 3295
Keywords:
investigation; notification;
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.
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 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.
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 4311
130th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to apply the sanction of summary dismissal to him.
Consideration 9
Extract:
The Tribunal has recently ruled that “where there is an investigation by an investigative body in disciplinary proceedings, the Tribunal’s role is not to reweigh the evidence collected by it, as 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 3757, under 6, and 3872, under 2).
Reference(s)
ILOAT Judgment(s): 3757, 3872
Keywords:
inquiry; investigation; investigation report; judicial review;
Judgment 4308
130th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him for misconduct.
Consideration 15
Extract:
The complainant’s second argument is that there were irregularities in the investigation process. The difficulty with the complainant’s pleas in this respect is that they constitute a series of assertions about what should have happened by way of investigative steps, what analysis should have been undertaken and criticism of the conclusions reached at various stages in the process. However, no reference is made in support of those assertions to any normative legal document or the Tribunal’s case law that establishes that such steps should have been taken, the analysis undertaken as suggested or any particular conclusion reached.
Keywords:
burden of proof; inquiry; investigation;
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 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.
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;
Consideration 14
Extract:
Essentially, the “flaws” [the complainant] has identified are that they did not agree with his perceptions. He has not submitted any evidence that the investigators “failed to obtain, refused to accept or ignored relevant evidence, took account of irrelevant evidence or misconstrued the evidence” (see Judgment 3447, under 6).
Reference(s)
ILOAT Judgment(s): 3447
Keywords:
inquiry; investigation; witness;
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.
Consideration 5
Extract:
The complainant [...] takes issue with the fact that the investigators did not allow her to submit comments on the evidence gathered or to inspect the file compiled during the investigation before they completed their report. However, the investigators were not required to do so. In addition, the Tribunal observes that the complainant, who had already been interviewed by the investigators for the first time on 3 May 2016, was, in fact, re-interviewed at the end of the investigation, as she was given a second interview on 16 January 2017, shortly before the investigation report [...] was drawn up. It should be noted that the complainant was informed of the substance of the report, as required under the Tribunal’s case law, after it was submitted, since the Director General’s decision of 15 May 2017 contained a detailed summary of the report and was accompanied by a full copy of the part of the report setting out the investigators’ findings.
Keywords:
inquiry; investigation; right to be heard;
Considerations 3-4
Extract:
[T]he complainant submits [...] that the two investigators who were appointed by the Director General to investigate her complaint [...] did not offer the requisite guarantees of impartiality.
[...]
The investigators appointed in this case were the Director of the Maastricht Upper Airspace Control Centre [...] and the Agency’s Head of Internal Audit. Since the departments headed by those two senior Eurocontrol’s officials did not come under the Directorate of Resources, the complainant is plainly wrong in contending that they were under the authority of Mr V. The Tribunal notes, moreover, that the officials in question considered it important to certify in their report that they did not have a reporting relationship with any of the parties to the dispute. While it is true that they were answerable to the Director General for the performance of their ordinary professional duties, that did not preclude them, in this case, from being entrusted with the investigation of the complaint in question, which was not directed against the Director General.
Theoretically, it would doubtless have been preferable, as the Director General himself admitted in his decision of 15 May 2017, to entrust the investigation into the harassment complaint against the Principal Director of Resources to a person outside Eurocontrol. The investigators in fact acknowledged that they had experienced some “discomfort” in having to investigate Mr V.’s conduct. It is furthermore regrettable that the Rule of Application, which, under the Article 12a of the Staff Regulations, was to lay down the implementing provisions for that article, had not yet been adopted when the harassment complaint at issue was made, as the Rule did not come into force until 23 May 2017.
However, the fact remains that these two officials – who had, in compliance with the requirements of Article 4.8 of the aforementioned Policy, received training in conducting an investigation before they took on that assignment – provided all the guarantees necessary to assume the responsibility entrusted to them.
In this regard, the Tribunal points out that, contrary to what the complainant appears to argue in referring to Judgments 3071, 3337 and 3660, which she misinterprets, its case law does not require investigations into harassment to be entrusted to a standing investigative body specifically established for that purpose. For the relevant requirements to be met, it suffices that such investigations are carried out by completely independent investigators.
That was the case here, since the arguments, put forward in passing by the complainant, that the independence of one of the investigators was compromised by his holding an appointment for a limited period or that he was disqualified from conducting an investigation because he himself had been the subject of a harassment complaint in the past, are irrelevant.
Moreover, the excerpts from the investigation report and the records of the interviews on the file lead the Tribunal to consider that the complaint was investigated by the investigators with complete impartiality.
Keywords:
conflict of interest; impartiality; inquiry; investigation;
Consideration 7
Extract:
[I]t should be recalled that it is not for the Tribunal, in view of the very nature of its role and the stage at which it intervenes in the disputes referred to it, to review all the findings of fact and assessments of evidence made by an internal investigative body which has gathered, as near as possible to the events, the information necessary to establish the truth of the matters at issue and, in particular, has heard the statements of the parties and various relevant witnesses at first hand. Under its settled case law, the Tribunal will only interfere with the findings of such a body, provided they have been made in the course of a properly-conducted procedure complying with the applicable rules of law, if they involve an obvious error of judgement (see, for example, Judgments 3593, under 12, 3682, under 8, 3831, under 28, or 3995, under 7).
Reference(s)
ILOAT Judgment(s): 3593, 3682, 3831, 3995
Keywords:
evidence; inquiry; investigation;
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; investigation; 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; investigation; 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; investigation;
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:
disciplinary procedure; evidence; inquiry; internal appeal; investigation;
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; investigation; 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; investigation;
Consideration 15
Extract:
The complainant seeks moral damages by reference to the time taken for the investigation process (over one and a half years) as well as the time taken to finalise the internal appeal process (over two and a half years). It may be accepted that both periods were extremely lengthy. However, the explicit basis for the damages is said to be “the enormous distress suffered by the complainant”. This is but an assertion not founded on any evidence of a causal connection and it is more likely that any distress suffered by the complainant over this time arose not because of the length of time the steps took but rather from the fact that the defendant organization was consistently satisfied at several levels of decision-making and review that the decision to dismiss the complainant for serious misconduct was justified.
Keywords:
delay in internal procedure; injury; inquiry; investigation; moral injury;
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; investigation;
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:
inquiry; investigation; procedural rights during investigation; 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; investigation; 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; investigation;
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; investigation;
Considerations 4 and 6
Extract:
The Tribunal considers that IFAD erred in refusing to grant the complainant’s request for a copy of the report established by the AUO at the end of the investigation in respect of the supervisor mentioned in her harassment complaint.
The Tribunal has consistently held that a staff member must, as a rule, have access to all the evidence on which the competent authority bases its decision concerning her or him (see, for example, Judgments 2229, under 3(b), 2700, under 6, 3214, under 24, or 3295, under 13). This implies, among other things, that an organisation must forward to a staff member who has filed a harassment complaint the report drawn up at the end of the investigation of that complaint (see, for example, Judgments 3347, under 19 to 21, and 3831, under 17).
Of course, this obligation to disclose must be balanced against the need to respect the confidential nature of some aspects of an inquiry, particularly the witness statements gathered in the course of the inquiry. As the Tribunal’s case law has confirmed, such confidentiality may be necessary in order to ensure witnesses’ protection and freedom of expression (see, in particular, Judgments 3732, under 6, and 3640, under 19 and 20). Moreover, in this case the confidentiality of some information related to the investigation was expressly required by the provisions on this matter contained in section 4 of Annex I to the President’s Bulletin PB/2007/02 of 21 February 2007 concerning investigation processes.
Although it is true that IFAD produced a redacted copy of the investigation report as an annex to its surrejoinder, by refusing to provide the complainant with the report in question during the internal appeals procedure it nevertheless unlawfully deprived her of the possibility of usefully challenging the findings of the investigation. In this case, the fact that the complainant was ultimately able to obtain a copy of the report during the proceedings before the Tribunal does not remedy the flaw tainting the internal appeal process. Indeed, the Tribunal’s case law recognises that, in some cases, the nondisclosure of evidence can be corrected when this flaw is subsequently remedied, including in proceedings before it (see, for example, Judgment 3117, under 11), that is not the case where the document in question is of vital importance having regard to the subject matter of the dispute, as it is here (see Judgments 2315, under 27, 3490, under 33, 3831, cited above, under 16, 17 and 29, or 3995, under 5).
[...]
[I]t [...] follows from the above that the decision [...] whereby IFAD refused to provide the complainant with the investigation report drawn up by the AUO, is unlawful and must, therefore, be set aside.
Reference(s)
ILOAT Judgment(s): 2229, 2315, 2700, 3214, 3295, 3347, 3490, 3640, 3732, 3831, 3995
Keywords:
confidential evidence; harassment; inquiry; investigation; organisation's duties;
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