Judgment No. 4013
Decision
1. The Director-General’s 27 January 2016 decision is set aside, as is the decision of 13 January 2014.
2. The FAO shall pay the complainant moral damages in the amount of 1,000 euros.
3. All other claims are dismissed.
Summary
The complainant challenges the decision not to investigate his harassment complaint in accordance with the applicable rules.
Judgment keywords
Keywords
complaint allowed; decision quashed; inquiry; harassment; investigation
Consideration 8
Extract:
In support of its position, the FAO relies on Judgment 3065 where, in consideration 10, the Tribunal stated:
“[...] an accusation of harassment requires that ‘an international organisation both investigate the matter thoroughly and accord full due process and protection to the person accused’. Furthermore, ‘[i]ts duty to a person who makes a claim of harassment requires that the claim be investigated both promptly and thoroughly, that the facts be determined objectively and in their overall context [...], that the law be applied correctly, that due process be observed and that the person claiming, in good faith, to have been harassed not be stigmatised or victimised on that account [...]’ (see Judgment 2973, under 16, and the case law cited therein).”
However, as the Tribunal stated in Judgment 3365, under 26, it is also well settled in the case law that “when an official makes allegations of harassment, she or he is entitled to have them dealt with in accordance with the rules and procedures in force (see Judgment 2642, under 8)”. In the same consideration, the Tribunal held that “[i]f an organisation fails to do so, it breaches not only its own policies and rules, but also its duty of care towards the official”.
Reference(s)
ILOAT Judgment(s): 2973, 3065
Keywords
harassment; duty of care
Consideration 14
Extract:
[I]n the complaint form submitted to the Tribunal, the complainant seeks “moral damages for the delay in the internal complaint and appeals process”. As the complainant did not make any submissions in his brief in relation to this claim, it will not be considered.
Keywords
moral injury; delay; internal procedure
Consideration 14
Extract:
[I]n his brief, the complainant attempted to incorporate by reference his pleading in the internal appeal process. The Tribunal has on many occasions stated that it is not acceptable to incorporate by reference into the pleadings before the Tribunal arguments, contentions and pleas found in documents created for the purposes of internal review and appeal (see Judgment 3920, under 5, and judgments cited therein). Accordingly the Tribunal did not have regard to those documents.
Reference(s)
ILOAT Judgment(s): 3920
Keywords
legal brief
Considerations 9 and 11-13
Extract:
Contrary to the FAO’s assertions, it did not adhere to the rules applicable to the investigation of a harassment complaint provided in the Circular. It does not follow from the fact that the OIGI based its conclusions on the FAO’s definition of harassment in the Circular, that the investigation was conducted in accordance with the FAO’s rules. It is observed that a “preliminary review” as conducted by the WFP OIGI did not form part of the investigation process in the Circular. As well, in contrast with the OIGI’s process in which a recommendation is included in its report, the provisions in the Circular limit the Investigation Panel’s report to the Director of OHR to its findings of fact. Further, the fact that the Investigation Panel had conducted “preliminary reviews” in its consideration of several harassment complaints without objection; that professional investigators commonly do preliminary evaluations of these types of complaints; and that this approach is recognized in the FAO Guidelines for Internal Administrative Investigations by the Office of the Inspector-General and the WFP Manual does not absolve the FAO of its obligation to deal with these complaints in accordance with the procedure provided in its own rules.
However, according to the WFP OIGI report, the OIGI and the Director of OHR (FAO) met on two occasions prior to the start of the investigation to discuss “the scope of the preliminary review, as well as to request for information on staff members”. The FAO Inspector-General also attended the last of the two meetings. Thus, it is evident that from the outset, the FAO Director of OHR and the FAO Inspector-General were in agreement with a “preliminary review” of the harassment complaint, a process not contemplated in the Circular. This, coupled with the fact that it does not appear that the FAO and the OIGI engaged in any discussion about the investigation being conducted in accordance with the provisions in the Circular, shows a disregard on the part of the FAO of the obligation to follow its own rules.
Although the FAO breached its obligation to deal with the harassment complaint in accordance with the applicable rules in the Circular, the complainant has not established that he was prejudiced as a result of the FAO’s action. Moreover, his claim that because of his membership on the Investigation Panel and his role as President of the Association of Professionals he was “single[d] out” and denied the same right and procedure as would be granted to his colleagues is also rejected. His complaint was referred to the WFP because of the conflict of interest problem and for no other reason.
Returning to the internal appeal, the Appeals Committee majority observed that there was no evidence that “OIGI conducted the investigation in a different manner than the way an investigation is undertaken by the FAO Investigation Panel”, and concluded that the OIGI’s investigation was “undertaken in compliance with the applicable rules specified [in the preceding paragraph – the Circular and the Rules of Procedure of the FAO Investigation Panel]”. As this conclusion constitutes an error of law, the Director-General’s decision endorsing the majority opinion is tainted by the same error of law and will be set aside. The complainant is entitled to moral damages for the FAO’s breach of its duty of care in the amount of 1,000 euros. The complainant did not seek, by way of relief, that the matter be remitted to the FAO to enable further investigation to be conducted in accordance with applicable procedures.
Keywords
staff regulations and rules; harassment; duty of care
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