Duty to inform about the investigation (917,-666)

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Keywords: Duty to inform about the investigation
Total judgments found: 10

• 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.

  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 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;
  

  
  
  

• 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 4237

  
  129th Session, 2020
  World Health Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision – taken after his resignation – to find him guilty of serious misconduct, and the decision to withhold from his separation entitlements an amount corresponding to financial losses allegedly incurred by WHO as a result of his misconduct.

  Consideration 10

  Extract:

  There is no obligation to inform a staff member that an investigation into certain allegations will be undertaken (see Judgment 2605, under 11).

  Reference(s)

  ILOAT Judgment(s): 2605
  

  Keywords:

  duty to inform about the investigation;
  

  Consideration 10

  Extract:

  Moreover, there is no principle in the Tribunal’s case law which requires that an official should receive detailed information about the allegations prior to the investigation interview (see Judgment 4106, under 9).

  Reference(s)

  ILOAT Judgment(s): 4106
  

  Keywords:

  duty to inform about the investigation;
  

  
  
  

• Judgment 4106

  
  127th Session, 2019
  International Labour Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the decision to apply to him the sanction of discharge.

  Consideration 9

  Extract:

  [T]he requirement spelled out in the Tribunal’s case law that “an investigation be conducted in a manner designed to ascertain all relevant facts without compromising the good name of the employee and that the employee be given an opportunity to test the evidence put against him or her and to answer the charge made” (see Judgments 2475, under 7, 2771, under 15, 3200, under 10, 3315, under 6, 3682, under 13, 3872, under 6, and 3875, under 3) was respected in the present case. At the outset, it is observed that there is no obligation to inform a staff member that an investigation into certain allegations will be undertaken (see Judgment 2605, under 11). The evidence shows that the complainant was informed at the outset of the investigation interview that the interview related to allegations of misconduct and that he was given the opportunity to weigh the evidence presented, respond to the allegations, and to provide any evidence or name any witnesses to support his responses. He was also given the opportunity to submit any further evidence or information in his defence prior to the conclusion of the investigation. There is no principle in the Tribunal’s case law which supports the complainant’s claim that he should have received detailed information about the allegations prior to the investigation interview.

  Reference(s)

  ILOAT Judgment(s): 2475, 2605, 2771, 3200, 3315, 3682, 3872, 3875
  

  Keywords:

  disciplinary procedure; due process; duty to inform about the investigation; inquiry; investigation; right to be heard; right to reply;
  

  
  
  

• 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.

  Consideration 6

  Extract:

  The sole purpose of an investigation is to establish the existence of facts that may be contested during disciplinary proceedings in which the rights of defence must be scrupulously safeguarded. The Tribunal considers that it is “clear that the rules relating to due process, in particular, which must be respected scrupulously during the actual disciplinary proceedings [...] (see, for example, Judgment 2475), do not apply during the investigation of matters brought before an internal auditing body” (see Judgment 2589, under 7). The Tribunal holds that, while it is preferable to notify the person concerned that she or he is to be the subject of an investigation, except where this would be liable to compromise the outcome of the investigation, such notification is not a requisite element of due process (see Judgment 3295, under 8).
  Once the investigation is opened, the organisation is under an obligation to provide the person concerned with an opportunity to explain her or his conduct and to present any information on her or his behalf. The Uniform Guidelines for Investigations do not, however, stipulate when the person concerned must be given this opportunity, since the aforementioned paragraph 17 of the Guidelines provides that this matter “is regulated by the rules, policies and procedures of the Organization”. In the International Labour Office there is no internal manual or practical guide setting out the procedure to be followed when conducting such interviews. Like the JAAB, the Tribunal considers that the above-mentioned opportunity should preferably be afforded before rather than during the interview. However, in this case, there is nothing to indicate that the complainant was in any way prevented from defending himself on account of the manner in which the investigation was conducted (see, in this connection, Judgment 2771, under 18).

  Reference(s)

  ILOAT Judgment(s): 2475, 2589, 2771, 3295
  

  Keywords:

  disciplinary procedure; duty to inform about the investigation; inquiry; investigation; procedural rights during investigation; right to be heard;
  

  
  
  

• Judgment 3578

  
  121st Session, 2016
  United Nations Educational, Scientific and Cultural Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to summarily dismiss him for serious misconduct.

  Consideration 14

  Extract:

  There is no obligation to inform a person in advance that an investigation will be undertaken (Judgment 2605, under 11).

  Reference(s)

  ILOAT Judgment(s): 2605
  

  Keywords:

  duty to inform about the investigation;
  

  
  
  

• Judgment 3295

  
  116th Session, 2014
  Pan American Health Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complaint concerning a disciplinary measure was dismissed by the Tribunal on the grounds that he had not demonstrated the existence of an error warranting the cancellation of the sanction.

  Consideration 8

  Extract:

  Regarding the question of whether the subject of an investigation must be given notice of the investigation, in Judgment 2605, under 11, the Tribunal held as follows:
  “The Tribunal considers that informing a person in advance that an investigation into certain allegations will be undertaken is not a requisite element of due process. Although notification prior to the start of an investigation may well be the preferred course of action, in certain circumstances alerting an individual to the fact that an investigation is to be undertaken may well compromise the investigation. As well, it may be through a routine review or audit that irregularities are encountered. It is once irregularities have been identified that the individual must be informed of the allegations of irregularities with sufficient precision to enable him to respond adequately; he should then be given an opportunity to respond, in particular to defend himself against the allegations, and to make such further response as the circumstances require prior to any conclusions being reached.”

  Reference(s)

  ILOAT Judgment(s): 2605
  

  Keywords:

  duty to inform about the 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 8

  Extract:

  It will often be fair to the accused to give notice of the allegations some time before the interview, perhaps even days, so that the accused has an opportunity to gather their thoughts about who might give evidence on the accused’s behalf and, in appropriate cases, identify documents which might assist the accused’s defence. Of course, as paragraph 5.2 [of the OSDI Quality Assurance Manual] also contemplates, such notice might be inappropriate if it compromised the integrity of the investigation, but that is likely not to be the norm. However, what is clear is that this step of informing the accused of the allegations should occur before the interview.

  Keywords:

  duty to inform about the investigation; notification of allegations; procedural rights during investigation;
  

  
  
  

• Judgment 2605

  
  102nd Session, 2007
  International Organization for Migration
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 11

  Extract:

  "The Tribunal considers that informing a person in advance that an investigation into certain allegations will be undertaken is not a requisite element of due process. Although notification prior to the start of an investigation may well be the preferred course of action, in certain circumstances alerting an individual to the fact that an investigation is to be undertaken may well compromise the investigation. As well, it may be through a routine review or audit that irregularities are encountered. It is once irregularities have been identified that the individual must be informed of the allegations of irregularities with sufficient precision to enable him to respond adequately; he should then be given an opportunity to respond, in particular to defend himself against the allegations, and to make such further response as the circumstances require prior to any conclusions being reached."

  Keywords:

  duty to inform about the investigation; inquiry; investigation; procedure before the tribunal; right to reply;