Opening of an investigation (898, 902,-666)

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Keywords: Opening of an investigation
Total judgments found: 9

• Judgment 4883

  
  138th Session, 2024
  United Nations Educational, Scientific and Cultural Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to close her harassment complaint at the end of the preliminary assessment procedure.

  Judgment keywords

  Keywords:

  complaint allowed; harassment; opening of an investigation;
  

  Considerations 7-8

  Extract:

  The Tribunal recalls [...] that, when such a stage is provided for in the procedure for examining a harassment complaint, the sole purpose of the preliminary assessment is to determine whether there are grounds for opening an investigation into that complaint. It follows that, at the preliminary assessment stage, a prima facie finding that some elements alleged by the person lodging the complaint in its support are genuine is, as a rule, sufficient to justify the continuation of the procedure, since it is in the course of the investigation itself, if opened, that the comprehensive search for evidence must be made (see to that effect, in particular, Judgment 4900, also delivered in public this day, considerations 27 and 28, as well as Judgments 4746, consideration 9, and 3640, consideration 5).
  In this case, the Tribunal finds that the reality of the facts alleged by the complainant was for the most part corroborated by testimonies gathered during the preliminary assessment.
  The Tribunal considers that such facts prima facie met the definition of harassment arising from Item 18.2 of the Human Resources Manual quoted in consideration 4, above. The actions and statements of which Mr M. was accused could in fact be reasonably perceived as constituting, in particular, offensive and/or undesired conduct in the workplace having the effect of affronting the complainant’s dignity and/or creating an intimidating, hostile, degrading and/or humiliating work environment.
  In those conditions, Ms T. was wrong to consider that an investigation did not need to be opened because there was no “prima facie evidence of harassment”.
  That flaw alone is sufficient to justify the setting aside of the impugned decision, without there being any need to rule on the complainant’s other pleas.

  Reference(s)

  ILOAT Judgment(s): 3640, 4746, 4900
  

  Keywords:

  harassment; mistake of law; opening of an investigation; organisation's duties;
  

  
  
  

• Judgment 4765

  
  137th Session, 2024
  European Organisation for the Safety of Air Navigation
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to open an administrative investigation into his conduct, and the dismissal of his harassment complaint.

  Consideration 2

  Extract:

  According to the Tribunal’s settled case law, a decision to open an investigation is not a decision that adversely affects a complainant since it does not affect her or his legal situation and, in particular, does not cause any change in her or his status. It is therefore not open to appeal (see Judgments 4607, consideration 6, 4039, consideration 3, 3236, consideration 12, and 2364, considerations 3 and 4). It should be recalled that any objections that a complainant may raise against such a decision, which is merely a step in the investigative procedure, may be brought up in a challenge to the final decision taken at the end of that procedure (see, for example, Judgments 4475, consideration 6, and 3958, consideration 15, and the case law cited therein).

  Reference(s)

  ILOAT Judgment(s): 2364, 3236, 3958, 4039, 4475, 4607
  

  Keywords:

  administrative decision; opening of an investigation;
  

  Consideration 4

  Extract:

  [A]lthough the complainant also requests the Tribunal to order Eurocontrol to conduct an administrative investigation into information which he had considered should be disclosed to the Organisation pursuant to Article 22a of the Staff Regulations, it is not for the Tribunal in any event to make an order of this kind.

  Keywords:

  injunction; opening of an investigation;
  

  
  
  

• Judgment 4746

  
  137th Session, 2024
  International Organization for Migration
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to close her harassment complaint following a preliminary assessment and without conducting an investigation.

  Judgment keywords

  Keywords:

  complaint dismissed; opening of an investigation; organisation's duties; parallel proceedings; time bar;
  

  Consideration 9

  Extract:

  It should be recalled that, according to firm precedent, an organisation has no obligation to open a full investigation into allegations of harassment if the allegations are insufficiently substantiated at the stage of the preliminary assessment. As the Tribunal recalled in Judgment 3640, consideration 5, “[t]he sole purpose of the preliminary assessment of [...] a complaint [of harassment] is to determine whether there are grounds for opening an investigation”.

  Reference(s)

  ILOAT Judgment(s): 3640
  

  Keywords:

  harassment; opening of an investigation; organisation's duties;
  

  
  
  

• Judgment 4607

  
  135th Session, 2023
  World Intellectual Property Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to dismiss her allegation that the opening of an investigation against her involved abuse of authority and the decision not to investigate her allegations against the Acting Director of the Internal Oversight Division.

  Consideration 6

  Extract:

  [A]ll that happened […] was that an investigation was opened. As [the Organization] points out in its reply, correctly, a decision to open an investigation is not a final decision that can give rise to a cause of action in the Tribunal, citing Judgment 3236, consideration 12.

  Reference(s)

  ILOAT Judgment(s): 3236
  

  Keywords:

  administrative decision; cause of action; opening of an investigation;
  

  
  
  

• 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 4310

  
  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 5

  Extract:

  Apart from the question of whether the IAO may ex officio carry out an investigation into an official on the basis of the findings of an audit which it is conducting, an investigation must in any event be opened by a formal decision so that the lawfulness of the procedure may subsequently be reviewed. Such review is not possible if the decision is verbal.

  Keywords:

  opening of an investigation;
  

  Consideration 6

  Extract:

  Although this is not an indispensable condition for due process (see Judgments 3295, under 8, and 4106, under 9), it is preferable that the subject of an investigation should be notified of the opening of an investigation into her or his conduct and the charges against her or him before being heard, so that she or he has an opportunity to explain her or his conduct and to submit any exculpatory evidence. If this does not occur, that information must, in any event, be provided at the beginning of the hearing.
  [A]t the beginning of the interview, one of the investigators explained that it was a “follow-up” to the audit report of 2012 and to “certain things” that had come to the IAO’s attention. He then emphasised that the interview was confidential, adding that “for example, [the] report goes to the Director-General afterwards. [There’s] a committee in Geneva which is responsible for reading reports from the [Investigation] Unit, and then [makes] direct recommendations to the Director-General.” Given that the complainant had not been notified in advance and was unaware of the content of the 2012 audit report, such general statements cannot be considered sufficient to inform him of the opening of an investigation and the charges against him. The investigators failed to indicate plainly the allegations against him. They merely questioned him on the events leading to the finding of misconduct on eight counts for which the disciplinary sanction was ultimately imposed. It is true that at the end of the interview, the investigators mentioned, in a very cursory manner, that a report on the interview would be forwarded to the Director of the IAO and the Committee on Accountability, which could recommend “disciplinary action or sanctions or things like that” to the Director-General. However, that explanation had to be clearly expressed at the beginning of the interview.

  Reference(s)

  ILOAT Judgment(s): 3295, 4106
  

  Keywords:

  notification of allegations; opening of an investigation; procedural rights during 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.

  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 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;
  

  
  
  

• Judgment 3200

  
  115th Session, 2013
  Food and Agriculture Organization of the United Nations
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to impose on her the disciplinary measure of demotion.

  Consideration 9

  Extract:

  The complainant was demoted from grade P-3 to grade P-2 on the grounds that she had harassed and intimidated Ms A., a staff member over whom she had authority.
  
  When the complainant asked towards the beginning of the interview who was accusing her she was told, in effect, that this information would emerge from the questions. This is not what paragraph 5.2 requires. In order to understand what the allegations are and how to respond and frame a defence, an accused would need to be told who had made the allegations. The identity of the accuser is a significant piece of information necessary to inform the accused of the factual context in which the accused’s alleged conduct was said to have occurred. The obligation to inform the accused of the allegations includes an obligation to identify the accuser as part of the factual matrix of what constitutes “the allegation”.

  Keywords:

  disclosure of evidence; opening of an investigation; procedural rights during investigation; witness;
  

  Consideration 11

  Extract:

  "Paragraph 5.2 [of the OSDI Quality Assurance Manual] must be interpreted in a manner consistent with the fundamental right of due process to know the name of the accuser except in those circumstances where revealing the identity of the accuser could undermine the integrity of the investigation."

  Reference(s)

  Organization rules reference: Paragraph 5.2 of the OSDI Quality Assurance Manual
  
  

  Keywords:

  adversarial proceedings; disclosure of evidence; duty to inform; opening of an investigation; procedural rights during investigation; witness;
  

  
  
  

• Judgment 2364

  
  97th Session, 2004
  Universal Postal Union
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 4

  Extract:

  Since it does not affect the complainant’s legal situation, either by changing his status or even by making any statement in that respect, the measure of 10 March 2002 does not constitute an “administrative decision” concerning the complainant.

  Keywords:

  opening of an investigation;