Investigation (860, 784, 898, 902, 903, 904, 906, 907, 913,-666)
You searched for:
Keywords: Investigation
Total judgments found: 172
< previous | 1, 2, 3, 4, 5, 6, 7, 8, 9 | next >
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; investigation; 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; investigation;
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; investigation; 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; investigation;
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; investigation; 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; investigation; 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; investigation; 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; investigation; right to be heard; testimony;
Judgment keywords
Keywords:
complaint allowed; decision quashed; harassment; inquiry; institutional harassment; investigation;
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; investigation; 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; investigation; 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; investigation; 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; investigation; 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; investigation; 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; investigation; 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; investigation; 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; investigation; 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; investigation; 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; investigation;
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 about the investigation; inquiry; investigation; right to be heard; 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; investigation; motivation; motivation of final decision;
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:
disciplinary procedure; evidence; inquiry; internal appeals body; investigation; 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; investigation;
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; investigation; 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; due process; harassment; inquiry; investigation; 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; investigation; 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; investigation;
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; duty to inform about the investigation; inquiry; investigation; procedural rights during investigation; 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:
assistance during investigation; inquiry; investigation; procedural rights during investigation;
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; investigation; moral injury; opening of an investigation; 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; investigation;
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; investigation; opening of an investigation;
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; investigation;
Judgment 4038
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 3
Extract:
[A]ccording 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 determine 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; investigation;
Considerations 11-18
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 outcome of the investigation.
Reference(s)
ILOAT Judgment(s): 3064, 3295, 3347
Keywords:
inquiry; investigation; moral injury; time limit;
Considerations 5-18
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 which 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): 2271, 2364, 2524, 2594, 2861, 3233, 3236, 3250, 3315, 3447, 3871
Keywords:
disciplinary procedure; inquiry; institutional harassment; investigation;
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. Moreover, the Tribunal notes that in its report the IAO found, in the complainant’s favour, that the overtime he worked in 2013 was less than in the previous year. A preliminary evaluation would have brought this to light at the outset.
Reference(s)
ILOAT Judgment(s): 2589
Keywords:
disciplinary procedure; inquiry; investigation;
Consideration 4
Extract:
The decision to open an investigation, which in no way prejudges the decision on the merits of a possible sanction, lies at the discretion of the competent authority.
In the present case, 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 seven contracts, including four for the International Labour Conference, 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 he might not be in a situation of conflict of interest because he was the official responsible for paying the sums due to his spouse.
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; investigation;
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; investigation; right to be heard;
Judgment 4035
126th Session, 2018
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant accuses her former supervisor of moral harassment.
Considerations 4, 5, 7
Extract:
The complainant objects to the fact that the Director-General, having recognised that the decision to close the case on her complaint of moral harassment had been wrong, failed to initiate the investigation for which item 18.2 of the Human Resources Manual on anti-harassment policy provides when the preliminary assessment does not culminate in a decision to close the case.
However, like the Appeals Board, the Tribunal considers that it was by that stage no longer possible to conduct such an investigation, not only because the Director of the Office had left the Organization, but also because of the time that had elapsed since the incidents in question, which in particular made it difficult to gather reliable testimony from witnesses as to whether those incidents occurred and how third parties may have perceived them.
The Tribunal has already found in similar cases that when a harassment case has been wrongly closed, it is not appropriate to order that an investigation be re-opened if that course would raise practical difficulties of this nature (see, for example, in another case concerning a UNESCO official, Judgment 3639, under 8 to 10).
Furthermore, the Tribunal came to the same conclusion in its recent Judgment 3935, delivered in public on 24 January 2018, in which it ruled on a complaint filed by the complainant’s immediate supervisor at the material time, Mr E. Z., who likewise considered that the Director of the Office had harassed him.
This situation means that, as in the case leading to aforementioned Judgment 3935, it is impossible for the Tribunal, in the present case, to reach an informed decision on the merits of the parties’ submissions as to the existence and, as the case may be, the effects of the harassment alleged by the complainant. Neither the parties’ briefs nor the evidence tendered allow the Tribunal to rule on these points with certainty; this would be possible only if the findings of an investigation that was duly carried out at the material time were available.
Thus, although the complainant alleges, inter alia, that she was unduly divested of the substance of her responsibilities, unlawfully placed in a hierarchical position that was not commensurate with her grade and subjected to denigration of her work and other humiliating statements and conduct, the evidence on file does not permit a determination as to whether some of these incidents actually took place and whether, viewed as a whole, they constituted harassment or instead resulted from acceptable management decisions or sheer tactlessness. Furthermore, whilst the complainant plainly had a very difficult relationship with the Director of the Office, that circumstance, which may well be explained by work-related conflicts or even by purely personal antagonism, does not in itself support a finding that the complainant was, as she alleges, a victim of systematic discrimination, retaliation or other conduct amounting to harassment. [...]
Nevertheless, the fact that it is impossible for the complainant to have her internal complaint of harassment examined owing to the failure to conduct an investigation at the time of the incidents constitutes a serious violation of her right to effective means of redress. It has caused her considerable moral injury which, in the Tribunal’s view, justifies a higher amount of damages than that already awarded by the Director-General in the impugned decision.
Reference(s)
ILOAT Judgment(s): 3639, 3935
Keywords:
harassment; inquiry; investigation; moral injury;
Judgment 4014
126th Session, 2018
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to investigate his harassment complaint by an external investigator and not by an investigation panel provided for in the applicable rules.
Judgment keywords
Keywords:
complaint dismissed; harassment; inquiry; investigation;
Judgment 4013
126th Session, 2018
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to investigate his harassment complaint in accordance with the applicable rules.
Judgment keywords
Keywords:
complaint allowed; decision quashed; harassment; inquiry; investigation;
Judgment 4011
126th Session, 2018
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her for misconduct.
Consideration 9
Extract:
The basic applicable principles regarding the right to due process at the investigative stage of disciplinary proceedings were stated by the Tribunal as follows in Judgment 2771, consideration 15:
“The general requirement with respect to due process in relation to an investigation – that being the function performed by the Investigation Panel in this case – is as set out in Judgment 2475, namely, that the ‘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’. At least that is so where no procedure is prescribed. Where, as here, there is a prescribed procedure, that procedure must be observed. Additionally, it is necessary that there be a fair investigation, in the sense described in Judgment 2475 and that there be an opportunity to answer the evidence and the charges.”
However, due process must also be observed at all other stages of disciplinary proceedings. Accordingly, the following was stated in Judgment 2786, consideration 13:
“Due process requires that a staff member accused of misconduct be given an opportunity to test the evidence relied upon and, if he or she so wishes, to produce evidence to the contrary. The right to make a defence is necessarily a right to defend oneself before an adverse decision is made, whether by a disciplinary body or the deciding authority (see Judgment 2496, under 7).”
Reference(s)
ILOAT Judgment(s): 2475, 2496, 2771, 2786
Keywords:
disciplinary procedure; due process; inquiry; investigation;
Judgment 3995
126th Session, 2018
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the measures taken by IFAD following its investigation into his allegations of harassment.
Consideration 7
Extract:
It is well settled that it is not the Tribunal’s role to review an internal appeal body’s findings of fact or assessment of evidence unless they are tainted with manifest error (see, for example, Judgments 3593, under 12, 3682, under 8, or 3831, under 28).
Reference(s)
ILOAT Judgment(s): 3593, 3682, 3831
Keywords:
inquiry; investigation; judicial review;
Judgment keywords
Keywords:
complaint allowed; decision quashed; harassment; inquiry; investigation;
Judgment 3965
125th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contends that the EPO did not properly address or investigate his claim of harassment.
Consideration 8
Extract:
The EPO admits that the Ombudsman has never prepared the report required by Article 11 of the Circular. In fact, the Tribunal notes that the Ombudsman has never properly executed his mandate, either by providing reasons for not complying with the deadlines set forth in the Circular, or by preparing a report and recommendations for the President. The Ombudsman’s comments, prepared upon the insistence of the Administration more than three years following the assignment of the case to him by the President, do not correspond either in form or in substance to what is required under Circular No. 286 for a report. The EPO’s assumption that it was for the complainant to be proactive in pursuing the procedure with the Ombudsman, and to have contacted him again or made the Organisation aware that the procedure was not running smoothly, is incorrect. Although the complainant had a duty to collaborate in good faith with the Ombudsman, it is primarily the latter’s duty to discharge the mandate assigned to him under Article 11 of the Circular. In turn, it was the duty of the President, who assigned the mandate to the Ombudsman, to monitor its execution. There was failure on both counts.
Keywords:
inquiry; investigation; ombudsman;
Judgment keywords
Keywords:
complaint allowed; decision quashed; harassment; inquiry; investigation;
< previous | 1, 2, 3, 4, 5, 6, 7, 8, 9 | next >
|
