Judgment No. 4679
Decision
1. The complaint is dismissed.
2. The counterclaim for costs is also dismissed.
Summary
The complainant impugns the decision to reject her complaint of harassment, discrimination and abuse of authority.
Judgment keywords
Keywords
harassment; investigation; complaint dismissed; abuse of power
Consideration 3
Extract:
As to the argument that the persons entrusted with the investigation are in a conflict of interest because they are subject to the hierarchical authority of the person accused of harassment (i.e. the Director-General), the Tribunal recalls its case law which states it is a general rule of law that an official who is called upon to take a decision affecting the rights or duties of other persons subject to her or his jurisdiction must withdraw in cases in which her or his impartiality may be open to question on reasonable grounds. It is immaterial that, subjectively, the official may consider herself or himself able to take an unprejudiced decision; nor is it enough for the persons affected by the decision to suspect its author of prejudice (see Judgment 4240, consideration 10). A conflict of interest occurs in situations where a reasonable person would not exclude partiality, that is, a situation that gives rise to an objective partiality. Even the mere appearance of partiality, based on facts or situations, gives rise to a conflict of interest (see Judgment 3958, consideration 11). An allegation of conflict of interest or lack of impartiality has to be substantiated and based on specific facts, not on mere suspicions or hypotheses. The complainant bears the burden to prove a conflict of interest (see Judgments 4617, consideration 9, and 4616, consideration 6). The mere fact that the staff members entrusted with an investigation are ordinarily under the authority of the Director- General is not a reasonable ground to call their impartiality into question. In the present case, there is no evidence that they had received any instructions from the Director-General (see Judgment 4243, consideration 9). The complainant does not provide persuasive evidence about the existence of a conflict of interest, which is merely hypothetical and not grounded on specific facts.
Reference(s)
ILOAT Judgment(s): 3958, 4240, 4243, 4616, 4617
Keywords
conflict of interest; investigation; investigative body
Consideration 5
Extract:
The applicable staff rules did not provide for cross-examination of the accused person and/or of the witnesses, nor do they require verbatim records of the interviews, which is not contrary to the case law (see Judgments 4579, consideration 3, and 2771, consideration 18). Therefore, the allegations that there were no verbatim records of the interviews and that the complainant was not allowed to cross-examine the accused persons and the witnesses fail. The case law requires that the person who lodged a harassment complaint be informed of the content of the interviews and be allowed to comment on them (see Judgments 4111, consideration 4, 4110, consideration 4, 4109, consideration 4, 4108, consideration 4, and 3875, consideration 3).
[…]
[T]he complainant was provided with the investigation report, together with the minutes of the testimonies attached to it. Even though she received the investigation report only after she had lodged her internal appeal, she was given ten further working days […] to supplement her appeal. She was asked to confirm […] whether she wished to avail herself of this option, and she did not. Therefore, she was allowed to further comment on the investigation report, and she chose not to. Considering that she was able to rely on the investigation report during the appeal proceedings, the Tribunal is satisfied that her right to due process was not breached (see Judgment 4406, consideration 8).
Reference(s)
ILOAT Judgment(s): 2771, 3875, 4108, 4109, 4110, 4111, 4406, 4579
Keywords
duty to inform; harassment; witness; investigation report; duty to inform about the investigation
Consideration 9
Extract:
In the Tribunal’s view, the complainant has not established it was not open to the ITER Organization to reach the conclusion it did in the circumstances. The complainant has offered no reliable evidence that either the Director-General or the Head of HRD perpetrated harassment, discrimination and abuse of authority. The incidents reported by the complainant, considered in their overall context, do not cross the threshold of work discussions and, even though there might have been some tensions or different views or disagreements, the conduct of the Director-General and of the Head of HRD do not show bad faith and unfairness, and cannot reasonably be perceived as intimidating, offensive, humiliating, and/or alarming.
Keywords
harassment
Consideration 18
Extract:
The Director-General’s interview during the investigation is a statement of the accused person during an investigation process and, therefore, cannot be used against its author and be construed as harassment.
Keywords
inquiry
Consideration 20
Extract:
The ITER Organization submits a counterclaim for costs alleging that the complainant did not have serious grounds to file her complaint, which hence was an abusive and unnecessary procedure. Since the ITER Organization initiated the investigation, it can be inferred that the ITER Organization itself had excluded that the complainant’s harassment complaint was lodged in bad faith. Thus, the present complaint cannot be viewed as having been filed in bad faith or as being frivolous or vexatious. Therefore, the counterclaim will be dismissed.
Keywords
counterclaim
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