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Investigation report (904,-666)
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Keywords: Investigation report
Total judgments found: 27
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Judgment 4862
138th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to provide her with an investigation report on her sexual harassment complaint at the end of the investigation and before a decision was taken on her harassment complaint.
Consideration 6
Extract:
On the specific question of the disclosure of investigation reports, the Tribunal has distinguished between:
(i) cases concerning an administrative decision notified to a staff member which is based on an investigation report; and
(ii) cases concerning earlier requests for disclosure – that is, requests made shortly after the completion of the report and before the adoption of a decision.
In the first situation, an organization is ordinarily bound to disclose the investigation report together with the decision on the harassment complaint, or at least shortly after, where requested by the concerned party (see Judgments 4743, consideration 11, 4739, considerations 10 and 12, and 4547, consideration 10). On the contrary, in the second situation, unless it is otherwise established in the staff rules and regulations, an organization is not bound to disclose the investigation report before the decision is adopted (see Judgment 3831, consideration 11). The complainant’s reliance on Judgment 4217, consideration 4, is misconceived, as in that case the request for disclosure of the investigation report into a harassment complaint was submitted after – and not before – the adoption of the decision, as in the present case.
The Tribunal is aware that its case law has occasionally stated that the alleged victim of harassment must be provided with the investigation report before the issuance of the decision on the harassment complaint (see Judgment 3347, considerations 19 to 21). It may be doubted that this judgment reflects a consistent line of authority both, before and after it was given. However, and in any event, this principle can only be applied on a case-by-case basis, where the specific circumstances of the case so demand. It is not the case here, considering that the alleged author of sexual harassment had retired on 23 February 2018, well before the complainant’s request for disclosure of the investigation report. Thus, there was no urgent need, on the part of the complainant, to obtain the investigation report in advance, for the purposes of her harassment complaint, whilst further purposes pursued by the complainant (to use the report as a piece of evidence in her three other pending complaints) are immaterial and outside the scope of the present complaint.
Reference(s)
ILOAT Judgment(s): 3347, 3831, 4217, 4547, 4739, 4743
Keywords:
disclosure of evidence; harassment; investigation report;
Consideration 6
Extract:
The non-disclosure of the investigation report prior to the adoption of the decision on the harassment complaint does not infringe the principle of due process. According to the Tribunal’s case law, staff members, as a rule, have the right to access all evidence upon which a decision affecting their interests is based (see Judgment 4217, consideration 4). This implies that: (i) a decision is adopted; (ii) this decision negatively affects the staff member; (iii) the decision relies on the evidence of which the staff member demands the disclosure. Such requirements do not occur in the present case, as no decision on the harassment complaint had been adopted at the time the disclosure of the report was requested.
Reference(s)
ILOAT Judgment(s): 4217
Keywords:
due process; investigation report;
Judgment keywords
Keywords:
complaint dismissed; disclosure of evidence; harassment; investigation report;
Judgment 4820
138th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to dismiss his moral harassment complaints, and claims compensation for the injury which he considers he has suffered.
Consideration 12
Extract:
Secondly, it appears, as the Organisation acknowledges in its reply, that the investigation report was also not provided, either in full or even in anonymized form, to the Joint Committee for Disputes before it gave its opinion on 27 February 2020, which in itself also constitutes a flaw since the Committee must be able under all circumstances to give a full and informed opinion (see, in this respect, Judgments 4471, consideration 14, and 4167, consideration 3).
The fact that the members of the Committee considered unanimously that the complainant’s internal complaint was well-founded is irrelevant in this respect, since the Committee could have given an even more reasoned opinion on the merits had it been provided with the final investigation report.
Reference(s)
ILOAT Judgment(s): 4167, 4471
Keywords:
final decision; harassment; internal appeals body; investigation report; motivation; motivation of final decision; procedural flaw;
Judgment keywords
Keywords:
absence of final decision; adversarial proceedings; complaint allowed; direct appeal to tribunal; harassment; internal remedies exhausted; investigation report; motivation of final decision; procedural flaw; reasonable time; right to information;
Considerations 10-11
Extract:
It is firstly clear, on the one hand, that the final investigation report, although requested by the complainant on several occasions, was never forwarded to him during the internal proceedings, even in anonymized form, which made him unable to be properly heard with full knowledge of the facts in these proceedings.
It emerges from the Director General’s decision of 27 March 2020, whereby he dismissed the internal appeal filed against the decision to dismiss the first harassment complaint inasmuch as it was directed against Mr P.H., that only the conclusions of the investigation report, set out in point 5 thereof, were forwarded to the complainant as an annex to the decision, while, in the decision itself, the Director General merely stated that “the facts examined in [the complainant’s] case [were] not constitutive of moral harassment”. Furthermore, if the Tribunal also refers to these conclusions of the investigation report, it must be noted that they are limited to the following considerations: firstly, “[t]he perception of the facts given by [the complainant] is not in line with the perception by Mr [P.H.] and by all heard MUAC [in Maastricht] witnesses. Documents give prove [sic] of meetings, appraisals, and situations, but do not prove any form of psychological harassment”; secondly, “[t]he investigation only focussed on possible psychological harassment by Mr [P.H.], it was not mandated to go further into the broader context”; thirdly, various observations made by the investigators about how the recruitment programme for young graduates was organized by the Organisation.
The Tribunal considers that such limited disclosure of the conclusions of the investigation report clearly does not meet the requirements laid down in its relevant case law and that the complainant may reasonably claim that he was unable to verify, even at the internal appeal stage, the content of the statements of the alleged harasser and the witnesses or the seriousness of the investigation conducted (compare, in particular, with Judgment 4471, considerations 14 and 23). The Tribunal recalls that it is firmly established that a staff member must, as a general rule, have access to all evidence on which the competent authority bases its decision concerning her or him (see, for example, Judgments 4739, consideration 10 (and the case law cited therein), 4217, consideration 4, 3995, consideration 5, 3295, consideration 13, 3214, consideration 24, 2700, consideration 6, or 2229, consideration 3(b)). This implies, among other things, that an organization must forward to the staff member who has filed a harassment complaint the report drawn up at the end of the investigation of that complaint (see, in particular, Judgments 4217, consideration 4, 3995, consideration 5, 3831, consideration 17, and 3347, considerations 19 to 21).
The Organisation argues in this regard that the full investigation report is annexed to its reply and that this is in line with the Tribunal’s case law on this point, whereby the reasons for a decision may be provided in other proceedings or may be conveyed in response to a subsequent challenge (see Judgments 3316, consideration 7, 1757, consideration 5, and 1590, consideration 7).
However, the Tribunal has already recalled in this regard that, while the non-disclosure of evidence can be corrected, in certain cases, when this flaw is subsequently remedied, including in proceedings before it (see, for example, Judgments 4217, consideration 4, and 3117, consideration 11), that is not the case where the document in question is of vital importance having regard to the subject matter of the dispute, as it is here (see Judgments 4217 consideration 4, 3995, consideration 5, 3831, considerations 16, 17 and 29, 3490, consideration 33, and 2315, consideration 27).
Reference(s)
ILOAT Judgment(s): 1590, 1757, 2229, 2315, 2700, 3117, 3214, 3295, 3316, 3347, 3490, 3831, 3995, 4217, 4471, 4739
Keywords:
confidential evidence; disclosure of evidence; due process; duty to inform; duty to inform about the investigation; general principle; harassment; internal appeals body; investigation report; motivation; motivation of final decision; official; organisation's duties; procedural flaw; right to information;
Judgment 4776
137th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to close his harassment complaint after a preliminary review.
Judgment keywords
Keywords:
complaint allowed; harassment; investigation; investigation report;
Consideration 11
Extract:
At least in this respect the preliminary review transmogrified into a full investigation. In these circumstances the complainant was entitled to be provided with a copy of the preliminary review report, as he requested on 3 December 2019 after having been informed on 20 November 2019 that the Inspector General ad interim had decided to close his harassment complaint. Consistent with Judgment 4471, he was entitled to review the report and, in particular, what was said in the report about the results of interviews by the external examiner with others and the conclusions reached.
Reference(s)
ILOAT Judgment(s): 4471
Keywords:
disclosure of evidence; investigation report;
Judgment 4743
137th Session, 2024
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to close a complaint of harassment he had filed and two related matters.
Consideration 11
Extract:
Inasmuch as the Director General relied upon the investigative report in making the decision to close the complainant’s harassment complaint, a copy of that report, albeit redacted to the extent necessary to maintain the confidentiality of some aspects of the investigation linked in particular to protecting the interests of third parties, should have been provided to the complainant. This should have been done at least during the internal appeals procedure so as not to unlawfully deprive him of the possibility of usefully challenging the findings of the investigation.
Keywords:
disclosure of evidence; investigation report;
Judgment 4739
137th Session, 2024
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: 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.
Judgment keywords
Keywords:
case sent back to organisation; complaint allowed in part; disclosure of evidence; due process; duty to inform about the investigation; investigation report; order to communicate a report;
Consideration 10
Extract:
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.
Reference(s)
ILOAT Judgment(s): 2767, 3065, 3071, 3347, 3347, 3617, 3831, 3995, 4108, 4109, 4110, 4111, 4217, 4313, 4547
Keywords:
disclosure of evidence; due process; duty to inform about the investigation; investigation report; right to information;
Consideration 10
Extract:
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”.
Reference(s)
ILOAT Judgment(s): 4547
Keywords:
disclosure of evidence; due process; duty to inform about the investigation; investigation report; right to information;
Consideration 12
Extract:
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 […].
Keywords:
disclosure of evidence; due process; internal appeal; investigation report; right to information;
Judgment 4703
136th Session, 2023
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to close the case arising from his reports of alleged misconduct and to reject his request to be provided with an unredacted version of the final investigation report.
Consideration 9
Extract:
[T]he complainant was provided with a copy of the redacted version of the final investigation report and there is no right to an unredacted copy of the final investigation report under the Tribunal’s case law (see, for example, Judgments 4471, consideration 23, and 3395, consideration 5).
Reference(s)
ILOAT Judgment(s): 3395, 4471
Keywords:
investigation report;
Judgment 4679
136th Session, 2023
ITER International Fusion Energy Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to reject her complaint of harassment, discrimination and abuse of authority.
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; duty to inform about the investigation; harassment; investigation report; witness;
Judgment 4663
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the refusal to acknowledge the harassment that she alleges she suffered and to provide her with the full inquiry report drawn up following her internal complaint against a colleague.
Considerations 6-7
Extract:
As regards [...] the failure to disclose to the complainant the entire preliminary inquiry report, which was central to the case, before the Joint Appeals Committee delivered its opinion and the Secretary General adopted the impugned decision, it is well settled that a staff member must, as a general rule, have access to all the evidence on which an authority bases or intends to base a decision that adversely affects her or him (see Judgment 4622, consideration 12). Under normal circumstances, such evidence cannot be withheld on grounds of confidentiality (see Judgment 4587, consideration 12).
Furthermore, the Tribunal has consistently stated that a staff member must be provided with all the materials an adjudicating body uses in an internal appeal and that the failure to do so constitutes a breach of due process (see Judgments 4412, consideration 14, 3413, consideration 11, and 3347, considerations 19, 20 and 21). In Judgment 4541, consideration 3, the Tribunal accordingly confirmed that a refusal to disclose an investigation report to a staff member in good time – even in a situation where, contrary to what happened in the present case, the report would have been provided at the same time as the organisation’s final decision – has the consequence of denying the staff member the opportunity to meaningfully challenge the findings of the investigation concerned in internal appeal proceedings conducted within the organisation.
In Judgment 4217, consideration 4, the Tribunal emphasised the importance of disclosing an investigation report similar to the one which the complainant had requested in the present case and noted that the fact that the complainant was ultimately able to obtain a copy of the report during the proceedings before the Tribunal did not remedy the flaw tainting the internal appeal process [...].
Lastly, in Judgment 4471, consideration 23, the Tribunal stated that the disclosure of extracts of a preliminary investigation report is generally not sufficient and an organisation is required to disclose the entire report, even if this means redacting it to the extent necessary to maintain the confidentiality of some aspects of the investigation, linked in particular to protecting the interests of third parties.
In the present case, the Tribunal considers that, having regard in particular to the content of the witness statements taken during the preliminary inquiry, from which it is plain that their disclosure was not liable to adversely affect the interests of third parties, there was nothing to prevent the complainant from being provided in good time with the full report of that inquiry and the transcripts of interviews that were appended to it. Such disclosure was essential if the complainant’s rights were to be observed, since the Secretary General and the Joint Appeals Committee relied on those documents and the complainant should therefore have been given the opportunity to comment on them.
The complainant requested a copy of the preliminary inquiry report of 10 October 2017 on no fewer than four occasions. The Joint Appeals Committee was aware of these requests, as was the Secretary General. During the internal appeal proceedings, however, the Organization merely quoted short excerpts from the report in its submissions, without providing the complainant with the full report. This response was incomplete and insufficient. Furthermore, although the Committee itself requested the full report and considered the report during its examination of the case, it did not inform the complainant of the full content of the report at any point. Staff Rules 10.3.2(5) and 10.3.4(3) provide that the official must have access to the documents and forms of evidence submitted to a joint committee and the official must have the opportunity to express her- or himself on the evidence used as a basis for a consultative opinion. Moreover, although Staff Rule 10.3.5(1,b) provides that a joint committee’s opinion must include a copy of the relevant documents submitted to it, the inquiry report was not appended to the opinion of the Joint Appeals Committee.
In the impugned decision the Secretary General endorsed the Committee’s recommendations, which referred to the inquiry report, but failed to send it to the complainant yet again. The Tribunal recalls that, in that decision, the Secretary General confirmed his earlier decision of 1 December 2017, which had rejected the complainant’s request for review by referring to what must be understood as the transcripts of the witness interviews conducted by the investigators, without their having been sent to the complainant at any time.
The Tribunal is not persuaded by the Organization’s attempt to justify the decision not to provide a copy of the report or the transcripts on the basis of the requirement that they be kept confidential. It notes that the Organization eventually provided the complete inquiry report and its annexes without redacting them at all, which shows that the Organization itself ultimately admitted that there was nothing preventing their disclosure.
It follows from the above that the complainant’s plea in this respect is well founded. These irregularities in the internal procedure constitute a substantial defect rendering both the impugned decision and the prior decision of 1 December 2017 unlawful.
Reference(s)
ILOAT Judgment(s): 3347, 3413, 4217, 4412, 4471, 4541, 4587, 4622
Keywords:
confidentiality; disclosure of evidence; harassment; investigation report;
Judgment 4659
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him for serious misconduct.
Consideration 4
Extract:
The Tribunal notes that it is undisputed that the preliminary inquiry report was never sent to the complainant in its entirety, even in a version redacted to the extent necessary to maintain the confidentiality of some aspects of the investigation, linked in particular to protecting the interests of third parties. It is true that, as the Organization argues, the actual disciplinary proceedings were only initiated by the notification of the Secretary General’s confidential memorandum of 26 March 2018. However, the fact remains that the preliminary inquiry report also constitutes obviously an important element of the proceedings in the present case, since the charges initially brought against the complainant were based on that report and it had been forwarded to both the Joint Disciplinary Committee and the Joint Appeals Committee, which took it into consideration in their respective opinions.
It follows that Staff Rule 10.3.2(5), under which the official concerned “[shall] have access to all documents and forms of evidence submitted to the Joint Committees” was not complied with and there was a breach of due process as established in the Tribunal’s case law (see Judgments 4412, consideration 14, 4310, consideration 11, and 3295, consideration 13).
Reference(s)
ILOAT Judgment(s): 3295, 4310, 4412
Keywords:
adversarial proceedings; confidentiality; disciplinary measure; disciplinary procedure; disclosure of evidence; investigation report;
Judgment 4549
134th Session, 2022
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the Director-General’s decision to reject her harassment complaint.
Consideration 9
Extract:
The failure, without valid grounds and notwithstanding the discretion conferred by paragraph 9 of Article 13.4 of the Staff Regulations, to hear witnesses potentially supportive of the complainant’s allegations constituted a breach of due process (see Judgment 4111, consideration 3). The complainant’s allegation is therefore well founded. As this error of law vitiates the validity of the investigation report, which forms the basis of the impugned decision, that decision must be set aside, without there being any need to address the complainant’s other pleas (see Judgments 4313, consideration 7, and 4110, consideration 5).
Reference(s)
ILOAT Judgment(s): 4110, 4111, 4313
Keywords:
due process; harassment; investigation; investigation report; testimony; witness;
Judgment 4471
133rd Session, 2022
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss his complaint of psychological harassment.
Consideration 14
Extract:
It is plain from Judgments 4167 and 4217, which also concern complaints of psychological harassment, that a decision is rendered unlawful by the refusal of an organisation’s executive head to disclose to the joint appeals body the report of the investigation into the harassment complaint lodged by the official concerned, or at least a redacted copy thereof. Similarly, in the aforementioned Judgment 4217, considerations 4 to 6, the Tribunal points out that, according to settled case law, a staff member must, as a general rule, have access to all the evidence on which the competent authority bases its decision concerning her or him. In this case, the Joint Committee for Disputes, on whose opinion the Director General states he bases his decision of 15 December 2016, was not provided with the investigation report concerned. Nor had the complainant received it by the time he was notified on 14 January 2016 that his psychological harassment complaint had been closed. In Judgment 4081, the Tribunal recalls that the reasons for a decision must be sufficiently explicit to enable the person concerned to understand why it was taken and the Tribunal to exercise its power of review. In the present case, the Director General neither provided information nor referred to the Committee’s reasons that would allow the complainant to understand why the decision was taken.
Reference(s)
ILOAT Judgment(s): 4167, 4217
Keywords:
confidentiality; final decision; harassment; internal appeals body; investigation report; motivation; motivation of final decision; procedural flaw;
Judgment 4347
131st Session, 2021
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision of the Director of PAHO to impose on him the disciplinary measure of reassignment with reduction in grade.
Consideration 21
Extract:
Regarding the non-disclosure of the investigation report, the Tribunal recalls that in Judgment 2229, consideration 3(b), it stated: “According to general principles of law, the staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him. Under normal circumstances, such evidence cannot be withheld on the grounds of confidentiality.” In the present case, by a letter of 8 August 2014, the complainant was provided with the list of charges and the 38 annexes of evidence on the basis of which the list had been compiled (including all witness statements and relevant emails); by a letter of 9 June 2015, he was provided with the confirmation of his misconduct and, in the attachment to that letter, with a 16-page document providing “the basis for the findings and conclusions regarding [his] lack of compliance with the established standards”; moreover, he was also provided with the Board of Appeal’s preliminary recommendation and final report in the impugned decisions (letters of 27 December 2017 and 22 June 2018 respectively). The Tribunal is therefore satisfied that, although PAHO, relying on paragraphs 68 and 69 of the Investigation Protocol, did not provide the complainant with a copy of the investigation report, he was provided with all evidence related to the charges and the specific evidence on which the final decision was based, and that he was given ample opportunity to respond to the allegations against him. His pleas in this respect are therefore unfounded.
Reference(s)
ILOAT Judgment(s): 2229
Keywords:
confidentiality; disclosure of evidence; investigation report;
Judgment 4313
130th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former official of the International Labour Office, challenges the decision to dismiss her harassment grievance.
Considerations 5-7
Extract:
[T]he fact that the complainant was ultimately able to obtain a copy of the witness statements during the proceedings before the Tribunal does not remedy the flaw in the investigation procedure. While the Tribunal’s case law recognises that, in some cases, the non-disclosure of evidence can be corrected when this flaw is subsequently remedied in proceedings before it (see, for example, Judgment 2767, cited by the ILO, and Judgment 3117, under 11), that is not so where the document in question is of vital importance having regard to the subject matter of the dispute (see Judgments 2315, under 27, 3490, under 33, 3831, under 16, 17 and 29, and 3995, under 5). [...]
The ILO also refers to Judgment 3071, in which the Tribunal held that the failure to disclose witness statements gathered in the course of a harassment investigation could have been corrected in the proceedings before the Joint Advisory Appeals Board. The Organization points out that the new procedure for the administrative resolution of harassment grievances does not allow internal appeals to be filed with the Joint Advisory Appeals Board when an investigation is required and seeks to argue that it may therefore rectify the investigators’ omission during the proceedings before the Tribunal.
The Tribunal cannot accept that reasoning. As discussed in consideration 3 [...], one of the advantages of the internal appeal procedure is that it allows the organisation to rectify certain irregularities in time. This is why, in Judgment 3071, the Tribunal stated that the witness statements gathered in the course of the investigation could have been disclosed to the person concerned during the proceedings before the Joint Advisory Appeals Board. In that case, the evidence was disclosed before the final decision was taken and thus the adversarial principle was observed. The fact that such proceedings are not available means that it is no longer possible to remedy the flaw arising from the late disclosure of witness statements since they constitute crucial evidence on which the impugned decision rests and, by definition, proceedings before the Tribunal take place only a posteriori.
It should be borne in mind that, in the two judgments referred to by the Organization, the Tribunal emphasised 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). Those two judgments are fully consistent with the Tribunal’s settled case law according to which, 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).
Reference(s)
ILOAT Judgment(s): 2315, 2767, 3065, 3071, 3117, 3490, 3617, 3831, 3995, 4108, 4109, 4110, 4111
Keywords:
due process; harassment; investigation report; witness;
Judgment 4311
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 9
Extract:
The Tribunal has recently ruled that “where there is an investigation by an investigative body in disciplinary proceedings, the Tribunal’s role is not to reweigh the evidence collected by it, as reserve must be exercised before calling into question the findings of such a body and reviewing its assessment of the evidence. The Tribunal will interfere only in the case of manifest error” (see Judgments 3757, under 6, and 3872, under 2).
Reference(s)
ILOAT Judgment(s): 3757, 3872
Keywords:
inquiry; investigation; investigation report; judicial review;
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 11
Extract:
It is not disputed that the complainant had never seen the IAO’s investigation report prior to filing his complaint with the Tribunal on 19 June 2017. Having regard to the Organization’s explanations, it seems that the report was not provided to him until 6 September 2017.
The Joint Advisory Appeals Board rightly considered that, in those circumstances, the adversarial principle and, more particularly, the complainant’s rights of defence had been breached.
As the Tribunal has repeatedly held, a staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) a decision affecting her or him personally. Such evidence cannot be withheld on grounds of confidentiality unless there is some special case in which a higher interest stands in the way of disclosure (see Judgments 3732, under 6, and 3755, under 10), which was not the case here.
The fact that the complainant was ultimately able to obtain the IAO investigation report during the proceedings before the Tribunal does not, in this case, remedy the flaw in the procedure. While the case law recognises that, in some cases, the non-disclosure of evidence can be corrected when this flaw is subsequently remedied, including in proceedings before the Tribunal (see, for example, Judgment 3117, under 11), that is not the case where the document in question is of vital importance having regard to the subject matter of the dispute, as it is here (see Judgments 2315, under 27, 3490, under 33, 3831, under 16, 17 and 29, and 3995, under 5).
Reference(s)
ILOAT Judgment(s): 2315, 3117, 3490, 3732, 3755, 3831, 3995
Keywords:
confidentiality; due process in disciplinary procedure; investigation report;
Judgment 4296
130th Session, 2020
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant requests that allegedly offensive remarks be removed from an investigation report.
Judgment keywords
Keywords:
cause of action; complaint dismissed; harassment; impugned decision; investigation report;
Judgment 4167
128th Session, 2019
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the Director General’s decision to reject her complaint of psychological harassment and seeks compensation for the injury she considers she has suffered.
Consideration 3
Extract:
The Tribunal also notes that this refusal to disclose resulted in the Committee being unable to give a proper opinion on the merits of the internal complaint. The Director General thus rendered his final decision without the benefit of such an opinion, thereby disregarding an essential safeguard inherent in the right of appeal, which is the requirement that his final decision be informed by the opinion of the Committee. The decision is thus tainted with another irregularity.
Keywords:
final decision; internal appeals body; investigation report;
Judgment 3848
124th Session, 2017
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to renew his special short-term contract for serious misconduct.
Consideration 5
Extract:
[T]here is nothing in the record indicating if or when the Director General determined that the serious misconduct had been established beyond a reasonable doubt. If he did rely on the conclusion reached in the Investigation Report, that reliance was misplaced. Such a conclusion was clearly beyond the scope of the Investigation Team’s mandate and Terms of Reference that were limited to fact-finding. [...] This was the expression of an opinion that does not belong in a fact-finding report, was highly prejudicial to the complainant and undermines the fairness of the reporting.
Keywords:
inquiry; investigation; investigation report; serious misconduct; standard of proof;
Judgment 3640
122nd Session, 2016
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the disciplinary measure of his summary dismissal in the wake of a sexual harassment complaint filed against him by one of his colleagues.
Consideration 11
Extract:
Similarly, the complainant is not justified in contending that the procedure was unlawful because the IOS investigator did not submit the draft report to him for comment before forwarding it to the Director-General. Indeed, as the investigator had interviewed the complainant twice in the course of the investigation and had informed him of the evidence gathered during it, he had been given a genuine opportunity to challenge the accusations levelled at him.
Keywords:
inquiry; investigation; investigation report;
Judgment 3365
118th Session, 2014
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision dismissing his harassment complaint and his allegations of denial of justice.
Consideration 21
Extract:
The complainant deplores the fact that he did not receive the IOS report. It is, however, plain from the submissions in the file that no report was drawn up in this case, as is permissible under the policy on harassment when the IOS considers allegations to be manifestly groundless. In these circumstances WHO is obliged only to inform the complainant of the IOS findings. This was done by the Director-General’s decision of 22 December 2010.
Keywords:
inquiry; investigation; investigation report;
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