Jugement n° 4739
Décision
1. The Executive Director’s decision of 20 July 2020 is set aside.
2. The matter is referred back to the Global Fund in order for the Appeal Board to carry out a new internal appeal process, in accordance with due process requirements, and for the Executive Director to take a new final decision on the Appeal Board’s recommendation, as per consideration 13 of the judgment.
3. The Global Fund shall pay the complainant moral damages in the amount of 15,000 euros for the breach of due process in the internal appeal, as per consideration 13.
4. It shall also pay the complainant costs in the amount of 10,000 euros.
5. All other claims are dismissed.
Synthèse
The complainant contests the Global Fund’s decision to close his harassment complaint and not to provide him with a copy of the investigation report.
Mots-clés du jugement
Mots-clés
Admission partielle; Renvoi à l'organisation; Production des preuves; Application des règles de procédure; Rapport d'enquête; Obligation d'information au sujet de l'enquête; Ordre de communiquer un rapport
Considérant 5
Extrait:
An order of […] measures [to mitigate the consequences of the complainant’s alleged harassment], including to permanently assign the complainant to another team, is beyond the Tribunal’s competence (see Judgment 4096, consideration 12).
Référence(s)
ILOAT Judgment(s): 4096
Mots-clés
Compétence du Tribunal; Injonction
Considérant 5
Extrait:
[T]he complainant’s claim is also moot, as there is no longer a live controversy (see Judgment 4060, consideration 3).
Référence(s)
ILOAT Judgment(s): 4060
Mots-clés
Demande sans objet
Considérant 10
Extrait:
According to the well-settled case law of the Tribunal, recently recalled in Judgment 4547, consideration 3, “a staff member who lodges a harassment complaint is plainly a party to the procedure conducted to ascertain whether that complaint is well founded, even though she or he would not be a party to any subsequent disciplinary proceedings taken against the perpetrator in the event that the harassment was recognised. The staff member concerned is therefore entitled to know whether it has been recognised that acts of harassment have been committed against her or him and, if so, to be informed how the organisation intends to compensate her or him for the material and/or moral injury suffered”.
Référence(s)
ILOAT Judgment(s): 4547
Mots-clés
Production des preuves; Application des règles de procédure; Droit à l'information; Rapport d'enquête; Obligation d'information au sujet de l'enquête
Considérant 10
Extrait:
As regards the complainant’s argument that his due process rights were violated, the Tribunal recalls its case law, recently confirmed in Judgment 4313, consideration 7, that “a staff member is entitled to be apprised of all material evidence that is likely to have a bearing on the outcome of her or his claims (see Judgment 2767, under 7(a)) and that failure to disclose that evidence constitutes a serious breach of the requirements of due process (see Judgment 3071, under 37)”, as well as that “in the context of an investigation into allegations of harassment, a complainant must have the opportunity to see the statements gathered in order to challenge or rectify them, if necessary by furnishing evidence (see Judgments 3065, under 8, 3617, under 12, 4108, under 4, 4109, under 4, 4110, under 4, and 4111, under 4)”. Also, in Judgment 4217, consideration 4, the Tribunal held that “by refusing to provide the complainant with the [investigation] report […] during the internal appeals procedure it nevertheless unlawfully deprived her of the possibility of usefully challenging the findings of the investigation” and “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”.
In Judgment 4547, consideration 10, the Tribunal held that:
“It is well settled in the Tribunal’s case law that an international organisation is bound to grant a request from the staff member concerned for a copy of the report delivered by the investigative body at the end of an investigation into a harassment complaint, even if that means the report must be redacted in order to maintain the confidentiality of some aspects of the investigation, in particular the testimony gathered during that investigation (see, in particular, Judgments 3347, considerations 19 to 21, and 3831, consideration 17, and also Judgments 3995, consideration 5, and 4217, consideration 4).”
The legal vacuum in the Global Fund’s rules does not absolve the Administration from the obligation to disclose the investigation report to a person reporting harassment.
Référence(s)
ILOAT Judgment(s): 2767, 3065, 3071, 3347, 3347, 3617, 3831, 3995, 4108, 4109, 4110, 4111, 4217, 4313, 4547
Mots-clés
Production des preuves; Application des règles de procédure; Droit à l'information; Rapport d'enquête; Obligation d'information au sujet de l'enquête
Considérant 12
Extrait:
The Global Fund’s refusal to provide the complainant with a copy of the investigation report, even with reasonable redactions to respect the confidential nature of some aspects of the investigation, during the internal appeal process, seriously breached the complainant’s right to due process. It unlawfully deprived him of the possibility of effectively challenging the findings of the investigation in the internal appeal process. It follows that the impugned decision […] was tainted by a fundamental flaw and must therefore be set aside […].
Mots-clés
Recours interne; Production des preuves; Application des règles de procédure; Droit à l'information; Rapport d'enquête
Considérant 13
Extrait:
In the present case, the Tribunal does not have sufficient information that would enable it to reach an informed decision on the complainant’s harassment complaint. The investigation report before the Tribunal is so heavily redacted that much of the documentation relevant to the allegation of harassment, namely the witness statements, is omitted. […] In these circumstances, the Tribunal considers it appropriate to refer the case back to the Global Fund so that (unless the case is settled in the meantime): (i) the Appeal Board shall carry out a new internal appeal process, in line with due process requirements (including by giving the complainant the opportunity to comment on the investigation report and the evidence gathered, redacted as appropriate to safeguard the interests of third parties, in order to challenge or rectify them); and (ii) the Executive Director shall take a new decision on the Appeal Board’s recommendation.
Mots-clés
Recours interne; Renvoi à l'organisation; Application des règles de procédure
Considérant 13
Extrait:
Since the complainant was denied due process in the internal appeal and was unlawfully deprived of the possibility of effectively challenging the findings of the investigation in the internal appeal process, he will be awarded moral damages in the amount of 15,000 euros.
Mots-clés
Recours interne; Application des règles de procédure; Indemnité pour tort moral
Considérant 14
Extrait:
As regards the complainant’s claim for moral damages for the injury he suffered as a consequence of the alleged harassment and for the Global Fund’s refusal to take adequate action to follow up on his harassment complaint, the Tribunal notes two things. First, no award of moral damages can be made in the absence of a conclusive finding as to whether the alleged harassment actually took place or not. Second, the Global Fund actually did take action, and did so soon after the harassment complaint was submitted, by removing the complainant from the Chief Risk Officer’s supervision and by assigning him to a position under a different reporting line.
Mots-clés
Préjudice; Harcèlement; Indemnité pour tort moral
|
