Judgment No. 4601
Decision
1. The decision of the Director-General of the WTO of 12 February 2019 is set aside.
2. The WTO shall pay to the complainant, as stated in consideration 12 of the judgment, the sums that would have been paid to him had he retired in February 2019.
3. It shall also pay him 8,000 Swiss francs in costs.
4. All other claims are dismissed.
Summary
The complainant challenges the decision to summarily dismiss him after an internal complaint of harassment was made against him.
Judgment keywords
Keywords
complaint allowed; disciplinary measure; summary dismissal; harassment
Consideration 8
Extract:
According to [...] the [...] Administrative Memorandum No. 985, harassment normally implies a series of incidents over a period of time, so it is not impossible for a harassment complaint to be based on relatively old events. That provision reflects the Tribunal’s case law, according to which, first, conduct over a period of time can inform the characterisation of particular conduct as harassment (see, in particular, Judgments 4288, consideration 3, and 4233, consideration 3) and, secondly, an accumulation of repeated events, as well as a long series of examples of mismanagement and omissions, can be such as to have compromised the dignity and career objectives of a staff member (see, in particular, Judgment 4286, consideration 17). Indeed, harassment may involve a series of acts over time and can be the result of the cumulative effect of several manifestations of conduct which, taken in isolation, might not be viewed as harassment (see Judgment 4233, consideration 3, and the case law referred to therein), even if they were not challenged at the time (see Judgment 4253, consideration 5, and the judgments cited therein).
It is therefore not in itself unusual that the [investigator] also took into account incidents of harassment which had already been reported in previously-lodged internal complaints [...]. The fact that the latter complaints did not lead to a full investigation being launched or, following such an investigation, to disciplinary proceedings being taken against the complainant, is irrelevant, since there was nothing to prevent the Organization from relying on those allegations of harassment, amongst other things, during the examination of a later complaint that reported new incidents. Equally irrelevant is the fact, relied on by the complainant, that none of the accusers behind those allegations complained at the time that the concrete measures decided on by the Organization were insufficient.
The complainant’s reliance on a potential breach of the rule against double jeopardy is therefore not substantiated [...].
Reference(s)
ILOAT Judgment(s): 4233, 4253, 4286, 4288
Keywords
double jeopardy; harassment
Consideration 9
Extract:
[T]he WTO’s assertion that those complaints did not lead to a full or thorough examination of the situation at the time because the procedure for dealing with harassment complaints was deficient is clearly not an argument capable of justifying that reversal. First, even assuming that the procedure at the time was inadequate, that cannot be relied on by the WTO since the Tribunal has consistently stated that international organisations are required to investigate accusations in this area and to provide protection for persons who claim they are the victims of harassment (see Judgments 2706, consideration 5, and 2552, consideration 3) and also to ensure that their investigative and internal appeal bodies for this purpose are functioning properly (see Judgments 3314, consideration 14, and 3069, consideration 12), these obligations being are part of a more general duty owed by those organisations to provide a safe and adequate environment for their staff, free from physical and psychological risk (see Judgments 4299, consideration 4, and 4171, consideration 11).
Reference(s)
ILOAT Judgment(s): 2552, 2706, 3069, 3314, 4171, 4299
Keywords
organisation's duties; investigation
Consideration 14
Extract:
The complainant also asks that, as a result of the impugned decision being set aside by the Tribunal, the WTO should be ordered to issue him with the badge provided to pensioners to enable him to participate in the activities of the WTO Pensioners’ Assembly. It is, however, clear from the case law that the Tribunal is not competent to make orders of that kind.
This is all the more so given that the complainant does not point to any obligation on the WTO to issue the “pensioner” badge arising from the terms of his employment contract or under the provisions of the Staff Regulations and Staff Rules. The Tribunal does not, therefore, in any event, have any competence in the matter, pursuant to Article II, paragraph 5, of its Statute.
Keywords
competence of tribunal; former official; house ban; access badge; order to deliver a badge
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