Harassment (642, 679, 820, 827,-666)
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Judgment 4808
137th Session, 2024
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the outcome of the investigation procedure conducted in respect of her harassment grievance and the resulting lack of compensation.
Judgment keywords
Keywords:
complaint allowed; harassment; moral damages;
Considerations 9-11, 14 & 17
Extract:
The Tribunal [...] notes that, in the impugned decision, the Director-General did not properly analyse whether or not it was appropriate to provide compensation for the moral injury suffered by the complainant as a victim of the harassment identified by the investigator in her report and recognized by the Organization. In so doing, the Director-General acted in breach of [the] provisions [which] established the complainant’s right to obtain explanations concerning compensation measures that may have been imposed taking into account the harassment identified in the investigation report; however, the Director-General did not attempt such explanations in the impugned decision. [...]
In this regard, the Tribunal notes that the Director-General’s comments in the impugned decision concerning the disciplinary actions or corrective measures that could not be taken due to the retirement of Mr N. and Ms D. did not relate to compensation for the victim of the harassment, namely the complainant.
Furthermore, the Tribunal notes that the Director-General appears to have considered that the payment of benefits received by the complainant under Annex II to the Staff Regulations, further to the recognition of the health problems from which she suffered as a result of the harassment as a service-incurred illness, covered all the injury suffered by the complainant. However, such benefits are not intended to cover the moral injury resulting from this harassment.
The Tribunal further notes that the Director-General’s other comment contained in the impugned decision, that the investigation report would help in some measure to bring the matter to a close, did not, in the circumstances of the case, constitute adequate compensation.
With regard to the Director-General’s comment that, if the complainant required any further support or assistance he encouraged her to make her needs known to HRD, this also was not compensation. [...] The Organization adds that, where a right to
compensation exists, express provision is made in the relevant texts. However, it contends that there is no express provision requiring the Director-General to award financial compensation in the procedure for the administrative resolution of harassment grievances.
The Tribunal cannot accept the defendant’s reading of the relevant provisions, which provide expressly for the right to redress of a staff member subjected to harassment and require the Director-General to consider the applicable remedies in a situation where harassment is recognized. The assertion that no express provision requires the Director-General to grant financial compensation is based on a confusion between the right to redress and the nature of the relief that could be awarded. While it is true that redress does not automatically imply the award of financial compensation and that, in some cases, measures other than the payment of a sum of money may prove adequate, the fact remains that the Organization ought first to have determined the appropriate redress for the complainant in the circumstances of the case, which it did not properly do.
Furthermore, in Judgment 4602, considerations 14 and 16, the Tribunal recalled that, even in a situation where no provision in the internal regulations, rules or policies directly provides for the possibility of a compensation to victims of harassment, its case law clearly recognizes the right to such compensation when properly supported:
“14. Notwithstanding this, the Tribunal considers that the WTO’s assertion, to the effect that no provision in the internal regulations, rules or policies directly provides for the possibility of a compensation to the individuals who filed a harassment complaint, is in tension with and indeed ignores its rather clear case law which recognises the right to such compensation when properly supported. In Judgment 4207, consideration 15, adopted by all seven judges, the Tribunal wrote the following on this issue:
‘It is observed that there are no specific provisions in the IAEA’s Staff Regulations and Staff Rules that articulate a comprehensive procedure to deal with a claim of harassment of the type first discussed in the preceding consideration. In the absence of a lawful comprehensive procedure within the IAEA’s Staff Regulations and Staff Rules to deal with a claim of harassment, the IAEA had to respond to the complainant’s claim of harassment in accordance with the Tribunal’s relevant case law. It is well settled in the case law that an international organization has a duty to provide a safe and adequate working environment for its staff members (see Judgment 2706, consideration 5, citing Judgment 2524). As well, ‘given the serious nature of a claim of harassment, an international organization has an obligation to initiate the investigation itself [...]’ (see Judgment 3347, consideration 14). Moreover, the investigation must be initiated promptly, conducted thoroughly and the facts must be determined objectively and in their overall context. Upon the conclusion of the investigation, the complainant is entitled to a response from the Administration regarding the claim of harassment. Additionally, as the Tribunal held in Judgment 2706, consideration 5, ‘an international organisation is liable for all the injuries caused to a staff member by their supervisor acting in the course of his or her duties, when the victim is subjected to treatment that is an affront to his or her personal and professional dignity’ (see also Judgments 1609, consideration 16, 1875, consideration 32, and 3170, consideration 33). Thus, an international organization must take proper actions to protect a victim of harassment.’ These principles have been recognized by the Tribunal’s case law in a number of situations before that Judgment 4207 (see, for example, Judgments 3995, consideration 9, and 3965, considerations 9 and 10) as well as after that Judgment 4207 (see, for example, Judgments 4547, consideration 3, and 4541, consideration 4).
[...]
16. The Tribunal observes that the WTO’s position is not that victims of harassment are not entitled to compensation. It rather argues that relief must be confined to compensation for the injury caused and that a finding of an unlawful act does not in itself establish a sufficient ground for compensation. The Tribunal in fact understands from the assertions contained in the WTO’s pleadings that the Organization recognizes the complainant’s strong emotions in relation to her request for additional compensation and does not wish, by its contestation, to belittle her feelings in this regard in any way. The WTO emphasizes, however, that any requests for additional compensation sought by the complainant must still meet the applicable legal requirements. On this matter, the Tribunal’s case law indicates that any complainant seeking compensation for material or moral damages must provide clear evidence of the injury suffered, of the alleged unlawful act, and of the causal link between the injury and the unlawful act (see, for instance, Judgments 4158, consideration 4, 3778, consideration 4, 2471, consideration 5, 1942, consideration 6, and 732, consideration 3), and that it is the complainant who bears the burden of proof in this respect (see Judgments 4158, consideration 4, 4157, consideration 7, and 4156, consideration 5).”
The general principle that “an international organisation is liable for all the injuries caused to a staff member by their supervisor [...] when the victim is subjected to treatment that is an affront to his or her personal and professional dignity”, asserted in Judgment 2706, consideration 5, and reiterated in the aforementioned Judgment 4207, applies all the more with regard to the measures to be considered by the executive head in a harassment situation (see also, on this subject, Judgments 4217, consideration 9, and 4171, consideration 11).
Lastly, in Judgment 4299, consideration 5, the Tribunal recalled the following in a case where a staff member alleged to have been harassed and requested compensation:
“It is true that a staff member who has, in the latter situation just discussed, established she or he has been harassed may also be entitled to an award of moral damages by the organization for the harassment (see, for example, Judgment 4158, consideration 3). Whether there is such an entitlement may depend on the terms of the regime in place within the organization to deal with harassment grievances. It is certainly something that can be awarded in proceedings in the Tribunal (see Judgment 4241, considerations 24 and 25). However, what is important is that, even if moral damages might be awarded, that is a subsidiary remedy or relief available in cases of this type when harassment is established. As just discussed, the primary obligation of the organization if harassment is proved is to protect the complainant and prevent further harassment.”
In a situation similar to that of the complainant in the present case, the Tribunal’s case law recognizes that it is the responsibility of the organization that establishes the existence of harassment to redress the injury caused and that, ordinarily, this redress should take the form of monetary compensation for the injury suffered (see, on this subject, Judgment 4158, consideration 3).
[I]t is true that redress for injury suffered by the victim of harassment may, in certain cases, take forms other than monetary compensation [...].
[...]
The Tribunal considers that the complainant has duly established the moral injury she has suffered as a result of the harassment recognized in the investigation report. Since the main factor in the recognition of harassment is the perception that the person concerned may reasonably and objectively have of repeated acts or remarks liable to demean or humiliate them (see, for example, Judgment 4541, consideration 8), the complainant could legitimately, as she maintains, have felt demeaned by the actions of Mr N., and she could have felt that the latter was creating a hostile working environment in her regard, and thus have suffered substantial moral injury (see the aforementioned Judgment 4541, consideration 8).
[...]
[T]he Tribunal has repeatedly recognized the right of a staff member to the payment of monetary compensation for the moral injury suffered as a result of harassment and the resultant affront to her or his dignity (see, for example, Judgments 4663, considerations 17 and 20, 4241, considerations 24 and 25, 4217, consideration 9, and 3995, consideration 9).
Reference(s)
ILOAT Judgment(s): 1609, 1875, 2524, 2706, 3170, 3347, 3995, 4158, 4207, 4217, 4241, 4541, 4547, 4602, 4663
Keywords:
compensation; harassment; moral damages;
Consideration 13
Extract:
In the circumstances, the Tribunal should normally refer the matter to the Director-General in order for him to determine the redress that it would be appropriate to contemplate as compensation for the injury suffered by the complainant as a result of the harassment established. However, in view of the time that has elapsed and the fact that there is sufficient evidence and information in the file to enable the Tribunal to reach a decision on the nature of this redress and to properly assess the amount of compensation for moral injury claimed by the complainant, it would be inappropriate to do so in this case (see, for example, Judgments 4663, consideration 17, 4602, consideration 18, and 4471, consideration 20).
Reference(s)
ILOAT Judgment(s): 4471, 4602, 4663
Keywords:
case sent back to organisation; compensation; harassment; moral injury;
Consideration 8
Extract:
The Tribunal first notes that, in the impugned decision, the Director-General inferred from the findings contained in the investigation report that “the evidence contained in the report justifie[d] the conclusion that two [...] harassment allegations against Mr [N.] were substantiated and that this create[d] a hostile work environment”, while also emphasizing that he agreed with the conclusions that the other harassment allegations relating to Mr N. and Ms D. were not substantiated.
The Tribunal considers that this assertion by the Director-General overlooked the express finding in the investigation report concerning “the cumulative effect of the incidents” surrounding the other acts with which Mr N. was charged, which, taken individually, did not constitute harassment. In her report, the investigator, having identified two incidents which, in her concluding analysis, constituted harassment as individual events, turned to consider “the cumulative effect” of the other individual acts of which the complainant accuses Mr N. On this subject, the investigator expressly stated that “the cumulative effect” of these acts, which were, first, similar in terms of pattern and behaviour, then occurred over a very brief and intense period when there was plainly a dysfunctional and unhealthy working environment and, lastly, continued throughout the complainant’s temporary secondment, “[m]ight reasonably have had a negative and unhealthy impact on the working environment and the capacity of [the complainant] to familiarize herself with the requirements of the post”. The investigator added that in her view, “[t]aking into account the two occasions” which constituted harassment as individual incidents, “the cumulative effect of the incidents could reasonably be considered as harassment”.
Since the Director-General overlooked this crucial aspect of the report in his review of its findings and, accordingly, in the choice of the measures that may consequently be taken, the Tribunal is of the opinion that the impugned decision is flawed by a failure to take into consideration an essential fact. This misunderstanding of the report clearly influenced the perception of the nature and extent of the harassment that the investigator had found to have been established and was a crucial factor in the Director-General’s analysis.
Keywords:
failure to take account of material facts; harassment;
Judgment 4781
137th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject her complaint of harassment and abuse of authority.
Judgment keywords
Keywords:
abuse of power; complaint allowed; harassment;
Consideration 9
Extract:
According to the Tribunal’s case law, an accusation of harassment made by an official requires an international organisation to investigate the matter ensuring that due process is observed, for the protection of both the person(s) accused and the accuser (see, for example, Judgments 3617, consideration 11, 3065, consideration 10, 2973, consideration 16, and 2552, consideration 3).
As a result, in the event of an accusation of harassment, the adversarial principle requires, in particular, that the accuser be kept informed of the content of statements made by the person(s) accused and any testimony gathered as part of the investigation, in order to challenge them if necessary (see Judgments 4110, consideration 4, 3617, consideration 12, and 3065, considerations 7 and 8).
In the present case, it is not apparent from the file that the complainant was informed during the course of the investigation, as is required by this case law, of the content of the observations made by the supervisors who were the subject of her complaint or the statements of the witnesses heard by the investigator. On the contrary, all the evidence appears to confirm the complainant’s assertion, which is not expressly disputed by the organisation in its submissions, that the information in question was not provided to her. In that regard, the Tribunal notes in particular that the sections of the report of 17 September 2019 that deal with the methodology of the investigation and the detailed examination of the complainant’s various allegations indicate that she was indeed heard at the start of the investigation but was not subsequently invited to comment on the reactions of her supervisors when they were questioned by the investigator, nor on the statements from the various witnesses heard by the investigator.
It follows from these findings that the investigation in question was not conducted in compliance with the adversarial principle.
Reference(s)
ILOAT Judgment(s): 2552, 2973, 3065, 3617, 4110
Keywords:
adversarial proceedings; harassment; inquiry; right to be heard;
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;
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 3
Extract:
As regards the dismissal of the harassment complaint lodged by the complainant on 19 October 2020, the Tribunal notes that he did not challenge that decision using the appeal procedures provided for in Article 92 of the Staff Regulations governing officials of the Eurocontrol Agency. Under Article 92(2), the complainant ought to have submitted an internal complaint against the decision on his harassment complaint. Instead, he impugned it directly before the Tribunal. The complaint is therefore irreceivable in this respect as the complainant contravened the requirement laid down in Article VII, paragraph 1, of the Statute of the Tribunal that internal means of redress be exhausted.
Keywords:
harassment; internal remedies exhausted;
Judgment 4754
137th Session, 2024
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to close his harassment complaint.
Judgment keywords
Keywords:
complaint dismissed; deference; harassment; investigation; investigative body; role of the tribunal;
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.
Consideration 12
Extract:
Administrative decisions cannot be characterized harassment solely because they are unlawful (see Judgments 4241, consideration 9, and 2861, consideration 37).
Reference(s)
ILOAT Judgment(s): 2861, 4241
Keywords:
administrative decision; harassment;
Consideration 12
Extract:
It is well settled in the Tribunal’s case law that “an allegation of harassment must be borne out by specific facts, the burden of proof being on the person who pleads it, and that an accumulation of events over time may be cited to support an allegation of harassment” (see, for example, Judgment 2100, consideration 13).
Reference(s)
ILOAT Judgment(s): 2100
Keywords:
accumulation; burden of proof; evidence; harassment;
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 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.
Judgment keywords
Keywords:
breach of confidentiality; complaint allowed; harassment;
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.
Consideration 14
Extract:
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.
Keywords:
harassment; injury; moral damages;
Judgment 4691
136th Session, 2023
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 complaint of harassment and abuse of authority.
Judgment keywords
Keywords:
abuse of power; complaint allowed; harassment;
Consideration 11
Extract:
[B]y framing the alleged harassing conduct involving an abuse of authority in the narrow way it did […] together with its consideration of specific issues or events in isolation, it is more likely than not that the OIG failed to consider whether the conduct as a whole involved an abuse of authority (see Judgment 2930, consideration 3) or, putting it slightly differently, whether the cumulative effect of the conduct could be reviewed as harassment and, specifically, an abuse of authority (see Judgment 4347, consideration 30).
Reference(s)
ILOAT Judgment(s): 2930, 4347
Keywords:
abuse of power; harassment; investigation;
Consideration 13
Extract:
[T]he complainant is entitled to moral damages for the moral injury he undoubtedly suffered as a result of the unlawful peremptory rejection of his complaint of harassment and particularly, abuse of authority and retribution about which, at this time, he obviously felt extremely strongly.
Keywords:
harassment; investigation; moral damages;
Judgment 4690
136th Session, 2023
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to uphold his transfer to Budapest.
Considerations 12-13
Extract:
It may be accepted that the Tribunal has recognised, at least in relation to certain classes of cases, that evidence of earlier conduct which precedes the conduct actually the subject matter of the complaint, may be relied on to prove the true character of the later and impugned conduct. An obvious example is a case involving an allegation of harassment. The Tribunal has accepted that in such a case the evidence of earlier conduct is admissible (see Judgments 4601, consideration 8, 4288, consideration 3, 4286, consideration 17, 4253, consideration 5, and 4233, consideration 3). But the purpose of that evidence is to enable the correct characterization, if it is in issue, of the impugned conduct. The same can happen in cases where bias and prejudice are alleged (see Judgment 3669, consideration 2).
There is probably no overarching principle which will determine the admissibility of evidence concerning earlier events in every case. At least in a case such as the present, the question of admissibility should be determined by reference to the specific facts of the case.
Reference(s)
ILOAT Judgment(s): 3669, 4233, 4253, 4286, 4288, 4601
Keywords:
bias; evidence; harassment; prejudice;
Judgment 4686
136th Session, 2023
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges a decision to close the harassment complaint she lodged against her former supervisor without carrying out an investigation.
Consideration 7
Extract:
[I]t may […] be accepted that the uncertainty over several years about the fate of [the complainant's] formal harassment complaint also caused her moral injury.
Keywords:
delay; harassment; moral injury;
Judgment keywords
Keywords:
complaint allowed; harassment;
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 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 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 keywords
Keywords:
abuse of power; complaint dismissed; harassment; investigation;
Judgment 4674
136th Session, 2023
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her for misconduct.
Considerations 16-18
Extract:
Certainly in the case of unsatisfactory performance, the Tribunal’s case law casts a duty on the organisation to inform a staff member of their unsatisfactory performance and effectively give them a warning that their performance needs to improve otherwise there is a risk of dismissal. In Judgment 3911 the Tribunal said:
[…]
There is no bright line distinguishing or separating conduct which constitutes unsatisfactory performance and some conduct which can be characterised as misconduct. The same conduct may be both. Judgment 4540 illustrates this point. Plainly, there will be situations where conduct constituting misconduct which could not be simply characterised as unsatisfactory performance, can lead to dismissal without any warning. Obvious examples would be theft, fraud or a serious assault on a fellow staff member occasioning actual bodily harm. That is one extreme. However, in circumstances such as the present, where generally the essential complaint was about the management style of a staff member (albeit, in this case, a forceful management style characterised as harassment by the Organization), it could be expected that the person concerned would be warned or counselled that her or his management style needed to alter, perhaps even radically and quickly, and if it did not, dismissal might follow. That is particularly so if the conduct is remediable and specific aspects of the conduct are not, in isolation, egregious even if, cumulatively, they might be. As noted earlier in relation to these proceedings, this is not a case where each alleged act of misconduct was identified, separately, as warranting the sanction of dismissal. It was the aggregation of conduct “creating a hostile work environment over an extended period of time” which underlay the decision to dismiss the complainant.
Her plea that she received no warning or counselling and should have, is well founded. The decision to dismiss the complainant should be set aside.
Reference(s)
ILOAT Judgment(s): 3911, 4540
Keywords:
harassment; misconduct; unsatisfactory service; warning;
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;
Consideration 19
Extract:
It is settled case law that staff members are entitled to have their internal appeals examined with the necessary speed, having regard in particular to the nature of the decision that they wish to challenge (see, for example, Judgments 4457, consideration 29, 4037, consideration 15, or 3160, consideration 16). Moreover, the Tribunal has repeatedly pointed out that the duty of care requires organisations to deal with harassment cases as quickly and efficiently as possible (see, for example, Judgment 4243, consideration 24).
Reference(s)
ILOAT Judgment(s): 3160, 4037, 4243, 4457
Keywords:
delay in internal procedure; harassment; time limit;
Judgment keywords
Keywords:
complaint allowed; harassment;
Considerations 10-13
Extract:
The Tribunal observes that the position taken by the Organization in the preliminary inquiry report, the decision of 13 October 2017 and the responses given to the complainant’s request for review, namely that there was insufficient evidence of the conduct alleged by the complainant because any reasonable doubt had to weigh in Mr S.’s favour when it came to the decision whether to take disciplinary action against him, was incorrect. In Judgment 4289, consideration 10, the Tribunal stated as follows on precisely this point:
“[...] A staff member alleging harassment, and a fortiori in an investigation on a preliminary basis of the type being undertaken, does not need to establish, nor does the person or body evaluating the claim, that the facts establish beyond reasonable doubt that harassment occurred. While an allegation of harassment may found disciplinary proceedings in which the standard of ‘beyond reasonable doubt’ would apply, it has no application in the assessment of the claim of harassment where the staff member is seeking workplace protection or damages or both.”
(See, to the same effect, aforementioned Judgment 4207, consideration 20.)
In the present case, given that it was aware that the complainant objected to the impact of the harassment and that her harassment complaint was not confined to seeking the adoption of disciplinary measures against Mr S., the Organization should not have considered only the question of whether reasonable doubt existed but should instead have carried out a rigorous and thorough inquiry so as to resolve any credibility issues that it had identified in respect of what it saw as the contradictory accounts given by the complainant and Mr S. in their testimonies. In this respect, the Tribunal notes that the Organization appears to have attached little importance to the email exchanges that immediately followed the incident on 8 July 2017, the content of which strengthened the credibility of the complainant’s testimony while diminishing that of Mr S.’s subsequent account, or to the explanations provided by Mr S., called into question by the investigators themselves, as to the sexualised language he had used.
Nor could the Organization ignore the complainant’s perception of herself as a victim of harassment and her assertion that she had felt demeaned, degraded and humiliated by the behaviour to which she had been subjected. As the Tribunal similarly noted in Judgment 4541, consideration 8, the main factor in the recognition of harassment is the perception that the person concerned may reasonably and objectively have of acts or remarks liable to demean or humiliate her or him. In this respect, the Organization should have ascertained why the harassment complaint submitted by the complainant could not be deemed credible, especially as the complainant’s good faith was never called into doubt.
Reference(s)
ILOAT Judgment(s): 3312, 4207, 4471, 4541, 4547
Keywords:
harassment; organisation's duties;
Considerations 17-18
Extract:
[T]he complainant does not request in her submissions that her complaint of harassment be remitted to the Organization for a thorough inquiry. She confines herself to claiming redress for moral injury and seeking an award of damages. In view of this, the Tribunal considers it inappropriate to refer the case back to the Organization. Rather, the appropriate course in this case is to award the complainant adequate compensation for the moral injury caused by the decisions that the Tribunal will set aside. The Tribunal considers that there is sufficient evidence and information in the file to enable it to reach a decision on the extent of this injury.
As can be seen from the foregoing, the complainant was deprived of her right to have a rigorous and thorough inquiry conducted into her complaint of harassment, which would, in all likelihood, have established that she had submitted a credible complaint of harassment in good faith. In addition, the complainant was deprived of her right to know whether the harassment against her had been acknowledged and of her right to receive the report of the preliminary inquiry into the complaint in good time.
Keywords:
case sent back to organisation; compensation; harassment; moral injury;
Judgment 4617
135th Session, 2023
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject her claim of harassment dated 6 December 2019 or, otherwise, the implicit confirmation, on 29 January 2020, of the decision to reject her 6 December 2019 claim.
Judgment keywords
Keywords:
complaint dismissed; harassment;
Judgment 4616
135th Session, 2023
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision finding that she had harassed another staff member and imposing a written reprimand on her.
Judgment keywords
Keywords:
complaint dismissed; disciplinary measure; harassment; reprimand;
Judgment 4615
135th Session, 2023
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her appointment.
Consideration 20
Extract:
[T]he organisation started the process as a harassment complaint procedure and finalized it with the outcome of a different procedure, that is “termination of appointment” under Regulation 13a)i). Consequently, the organisation failed to follow a proper disciplinary procedure.
Keywords:
disciplinary procedure; harassment; termination of employment;
Judgment 4614
135th Session, 2023
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to reject her harassment claim.
Judgment keywords
Keywords:
complaint allowed; harassment;
Consideration 17
Extract:
[T]he impugned decision should be set aside. Given the effluxion of time and the fact that the complainant no longer works for the organisation and would no longer need protection from any harassment (see, for example, Judgment 4286, consideration 19), it is not appropriate to remit the matter to the organisation to reconsider the complainant’s harassment grievance. In any event, she does not seek such an order. As the moral injury is evident from the circumstances of the case, the complainant is entitled to moral damages (see Judgment 4541, consideration 11).
Reference(s)
ILOAT Judgment(s): 4286, 4541
Keywords:
compensation; harassment; moral damages;
Judgment 4608
135th Session, 2023
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests WIPO’s decision to maintain Office Instruction No. 10/2016, promulgating, inter alia, the discontinuation of the Small and Medium-Sized Enterprises Section.
Consideration 4
Extract:
[T]he alleged episodes of harassment against officials other than the complainant are outside the scope of the present complaint for lack of locus standi.
Keywords:
harassment; locus standi;
Judgment keywords
Keywords:
complaint dismissed; harassment;
Judgment 4602
135th Session, 2023
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to award her material and moral damages as a victim of harassment and abuse of authority by her direct supervisor.
Consideration 14
Extract:
[T]he WTO’s assertion, to the effect that no provision in the internal regulations, rules or policies directly provides for the possibility of a compensation to the individuals who filed a harassment complaint, is in tension with and indeed ignores its rather clear case law which recognises the right to such compensation when properly supported. In Judgment 4207, at consideration 15, adopted by all seven judges, the Tribunal wrote the following on this issue […].
These principles have been recognized by the Tribunal’s case law in a number of situations before that Judgment 4207 (see, for example, Judgments 3995, consideration 9, and 3965, considerations 9 and 10) as well as after that Judgment 4207 (see, for example, Judgments 4547, consideration 3, and 4541, consideration 4).
Reference(s)
ILOAT Judgment(s): 3965, 3995, 4207, 4541, 4547
Keywords:
compensation; harassment; staff regulations and rules;
Judgment keywords
Keywords:
complaint allowed; harassment; moral damages;
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