Judgment No. 4207
Decision
1. The Director General’s 28 April 2017 decision and the DDG-MT’s decision of 31 January 2017 are set aside.
2. The IAEA shall pay the complainant moral damages in the amount of 25,000 euros.
3. The IAEA shall pay the complainant costs in the amount of 7,000 euros.
4. All other claims are dismissed.
Summary
The complainant impugns the Director General’s decision to endorse the conclusion of the Office of Internal Oversight Services that it was unable to make a conclusive determination on her sexual harassment claim and to reject her related request for damages.
Judgment keywords
Keywords
complaint allowed; decision quashed; sexual harassment; plenary judgment; en banc review
Consideration 9
Extract:
[T]he IAEA takes the position that having regard to the OIOS’s operational independence, as provided in the OIOS Charter, the Director General was constrained by the findings and conclusions of the OIOS Report and by the standard of proof necessary to establish harassment identified by OIOS, namely, beyond a reasonable doubt. It is convenient to address this submission at this point. It is observed that the operational independence of OIOS, as provided for in the OIOS Charter, concerns the independence of its internal operations. It does not in any way constrain or implicate the Director General’s decision-making authority nor does it preclude judicial review of the OIOS’s findings and conclusions underpinning a Director General’s final decision. Accordingly, this submission is unfounded.
Keywords
inquiry; harassment; final decision; sexual harassment; investigation
Consideration 10
Extract:
[I]t must also be observed that it is well settled in the case law that “it is not the Tribunal’s role to reweigh the evidence before an investigative body which, as the primary trier of fact, has had the benefit of actually seeing and hearing many of the persons involved, and of assessing the reliability of what they have said. For that reason such a body is entitled to considerable deference. So that where [an investigative body] has heard evidence and made findings of fact based on its appreciation of that evidence and the correct application of the relevant rules and case law, the Tribunal will only interfere in the case of manifest error” (see Judgment 3593, consideration 12).
Reference(s)
ILOAT Judgment(s): 3593
Keywords
evidence; inquiry; deference; investigation
Consideration 14
Extract:
A claim of harassment and a report of misconduct based on an allegation of harassment are distinct and separate matters. A claim of harassment is a claim addressed to the organization the resolution of which only involves two parties, the organization and the reporter of the harassment. In contrast, a report of alleged misconduct, based on an allegation of harassment, triggers the Appendix G procedures, a process that is directed at the culpability of the staff member in question and potentially the imposition of a disciplinary measure. In this process, the two parties are the organization and the staff member in question. In this process, the reporter of the misconduct, a potential victim of the harassment, is a witness and not a party in the proceedings.
Keywords
misconduct; disciplinary procedure; harassment; sexual harassment
Consideration 15
Extract:
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.
Reference(s)
ILOAT Judgment(s): 1609, 1875, 2524, 2706, 3170, 3347
Keywords
applicable law; case law; harassment; sexual harassment
Consideration 18
Extract:
The Tribunal concludes that the IAEA could have and should have given the complainant a decision regarding her complaint of harassment within a reasonable time following the completion of the investigation [...]. Rather than reacting promptly in relation to the complainant’s claim of harassment, the Administration held this claim in abeyance pending the completion of the Appendix G procedure and a determination as to whether misconduct was committed. The fact that the Appendix G procedures were still ongoing did not in any way preclude the IAEA from responding to the complainant’s claim of harassment.
Keywords
reasonable time; inquiry; misconduct; harassment; sexual harassment; investigation
Consideration 20
Extract:
Having regard to the distinction mentioned in consideration 14 [of the judgment] between a claim of harassment and a report of misconduct based on an allegation of harassment, the DDG-MT’s decision concerning the complainant’s claim of harassment is fundamentally flawed. The DDG-MT proceeded on the assumption that an allegation of harassment by the aggrieved staff member must not only be borne out by specific acts, the burden of proof being on the reporter of the harassment, but must also prove that the alleged perpetrator of the harassment acted with intent. This in turn resulted in the DDG-MT incorrectly applying the “beyond a reasonable doubt” standard of proof in his consideration of the complainant’s claim of harassment. It is noted that the Tribunal has specifically rejected this assumption that intent on the part of the alleged perpetrator is required in order to establish harassment (see, for example, Judgments 2524, consideration 25, 3233, consideration 6, and 3692, consideration 18, and the case law cited therein). The Tribunal’s case law states that the applicable standard of proof for a finding of harassment in a case such as this is not “beyond a reasonable doubt” but a less onerous standard (see Judgment 3725, consideration 14).
Reference(s)
ILOAT Judgment(s): 2524, 3233, 3692, 3725
Keywords
intention of parties; harassment; standard of proof; sexual harassment
Consideration 21
Extract:
Taking into account the OIOS’s conclusion that based on its findings [...] that the complainant’s complaint of sexual harassment was credible and made in good faith; that no finding was made regarding the credibility of Mr A.’s denials; that a decision was made that Mr A. would be warned about his “behaviour”; and notwithstanding the fact that there was no independent witness present during the incidents, which is not uncommon and does not undermine the credibility of the complaint, the Tribunal finds that the complaint of sexual harassment is substantiated.
Keywords
harassment; sexual harassment
Consideration 22
Extract:
As the complainant has not provided information in support of her request for material damages, this claim for relief will be dismissed.
Keywords
material damages
Consideration 22
Extract:
The complainant’s request that the IAEA be ordered to audit, review and amend its procedures for resolving sexual harassment complaints is beyond the scope of the Tribunal’s competence [...].
Keywords
competence of tribunal; order to modify internal rules
|
