Harassment (642, 679, 820, 827,-666)
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Keywords: Harassment
Total judgments found: 191
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Judgment 4289
130th Session, 2020
International Centre for Genetic Engineering and Biotechnology
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to renew her appointment for unsatisfactory performance and the decision to reject her harassment complaint.
Judgment keywords
Keywords:
complaint allowed; fixed-term; harassment; non-renewal of contract; performance evaluation;
Consideration 10
Extract:
[T]he approach of the Advisory Panel was fundamentally flawed. In its report [...], the Advisory Panel set out and answered or addressed a series of propositions. The first proposition was: “whether the allegations contained in the [complaint] are sufficiently grounded in fact beyond reasonable doubt and are made in good faith”. The Advisory Panel answered this proposition in the negative. 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. This issue has recently been addressed by the Tribunal (see Judgment 4207, consideration 20).
Reference(s)
ILOAT Judgment(s): 4207
Keywords:
harassment; standard of proof;
Consideration 9
Extract:
The ICGEB did not have, at the time, a formal written policy concerning the investigation of harassment complaints. The Tribunal’s case law requires that such complaints be investigated promptly and thoroughly (see, for example, Judgment 3071, consideration 36).
Reference(s)
ILOAT Judgment(s): 3071
Keywords:
harassment;
Judgment 4288
130th Session, 2020
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to reject his allegations of harassment.
Judgment keywords
Keywords:
complaint dismissed; harassment;
Consideration 3
Extract:
Conduct over a period of time can inform the characterisation of particular conduct as harassment (see Judgment 4233, under 3).
Reference(s)
ILOAT Judgment(s): 4233
Keywords:
harassment;
Judgment 4286
130th Session, 2020
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject her claim of retaliation/harassment.
Judgment keywords
Keywords:
complaint allowed; harassment; institutional harassment; retaliation;
Consideration 17
Extract:
The Appeal Board’s approach to the substance of the complainant’s allegations of retaliation and reprisals, endorsed by the Director General in the impugned decision, was flawed on two bases. In the first place, its statement that the complainant had only substantiated two of the incidents upon which she relied was inaccurate. Her rejoinder in the Appeal Board’s proceedings shows that she substantiated other alleged incidents. In the second place, the Board did not appreciate that although it was not required to find the facts, that being within the purview of the IOD, it was nevertheless required to weigh the detailed evidence (including the rebuttals) which the IOD had adduced in its investigations (see Judgment 4085, under 15). As a result, the Board failed to consider whether there was an accumulation of repeated events which deeply and adversely affected the complainant’s dignity and career objectives. It also failed to consider whether there was a long series of examples of mismanagement and omissions by the Organization that compromised her dignity and career constituting institutional harassment (see, for example, Judgment 3250, under 9). The Board therefore did not consider all relevant facts and drew wrong conclusions from the facts. These failures constitute an error of law (see, for example, Judgment 2616, under 24), as well as a violation of the complainant’s right to effective appeal proceedings (see, for example, Judgment 3424, under 11(a) and (b)).
Reference(s)
ILOAT Judgment(s): 2616, 3250, 3424, 4085
Keywords:
harassment; institutional harassment; internal appeals body; mistake of law; right of appeal;
Judgment 4279
130th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject her internal complaint of psychological harassment.
Judgment keywords
Keywords:
complaint dismissed; harassment;
Consideration 11
Extract:
[T]he complainant is wrong to believe there is a contradiction between the dismissal of her harassment complaint and the Director General’s decision to issue a written reprimand to Mr V. after the investigation report was submitted.
It is true that Mr V. received a reprimand [...], even though the investigators had found that there was no need for a disciplinary sanction in this case. In view of the requirements inherent in the principle of equal treatment, the Director General considered that he should treat Mr V.’s behaviour in specifically addressing the complainant as a woman during the incident [...] as misconduct. The Director General also deemed Mr V.’s failure to account for that conduct when he was questioned about it during the meeting [...] as inappropriate, given the duties owed by the Principal Director of Resources to staff unions.
Needless to say, it is not for the Tribunal to rule on whether the sanction imposed on Mr V. was warranted, since it has not been impugned before it. However, the Tribunal observes that, in any event, the misconduct of which Mr V. is accused [...] cannot be regarded as constituting psychological harassment of the complainant. There is therefore no contradiction between the imposition of that sanction and the rejection of the internal complaint [...] seeking recognition of such harassment.
Keywords:
disciplinary measure; harassment;
Judgment 4265
129th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her allegations of harassment.
Considerations 6-8
Extract:
A key element of harassment is the perception the person the object of the conduct “may reasonably and objectively have of acts or remarks liable to demean or humiliate him/her” (see Judgment 3318, consideration 7).
Several other matters emerge from the case law. Judgment 3318 [...] says, citing earlier authority, that there is no need to prove the perpetrator of the acts complained of intended to engage in harassment, an allegation of harassment has to be borne out by specific facts and the burden of proof is on the person who pleads it. That judgment also says, citing earlier authority, that an unlawful decision or inappropriate behaviour is not enough to prove that harassment has occurred. In addition, behaviour will not be characterised as harassment or mobbing if there is a reasonable explanation for the conduct in question, though an explanation which is prima facie reasonable may be rejected if there is evidence of ill will or prejudice or if the behaviour in question is disproportionate to the matter which is said to have prompted the course taken (see Judgment 2524, consideration 25).
Finally, individual events may, over time, evidence harassment even if each of the particular individual events may be capable of being viewed more benignly (see, for example, Judgment 3485, consideration 6).
Reference(s)
ILOAT Judgment(s): 2524, 3318, 3485
Keywords:
harassment;
Judgment keywords
Keywords:
complaint allowed; harassment;
Judgment 4253
129th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who states that he was the victim of moral harassment, claims redress for the injury he considers he has suffered.
Judgment keywords
Keywords:
complaint allowed; harassment;
Consideration 3
Extract:
Every international organisation is bound by a duty of care to treat its staff members with dignity and avoid causing them undue and unnecessary injury (see Judgment 2067, consideration 17). It is well established that an international organisation has a duty to its staff members to investigate claims of harassment (see Judgments 3071, consideration 36, and 3337, consideration 11). Having noted that no investigation had been conducted by HRD, the JAAB itself undertook a detailed examination of the allegations. Such an approach is acceptable if the examination satisfies the requirements of the Tribunal’s case law with regard to investigations into harassment allegations: such investigations must be prompt and thorough, the facts must be established objectively and in their overall context, the law must be applied correctly and due process must be observed (see Judgments 2642, consideration 8, and 3692, consideration 18).
Reference(s)
ILOAT Judgment(s): 2067, 2642, 3071, 3337, 3692
Keywords:
harassment; inquiry; investigation; respect for dignity;
Consideration 5
Extract:
It is true that the acts to which these three pleas relate can no longer, as such, be challenged before the Tribunal. However, inasmuch as the complainant maintains that they contributed to the harassment of which he considers himself to be the victim, the Tribunal must consider them. Indeed, harassment may involve a series of acts over time (see Judgments 2067, consideration 16, and 4034, consideration 16) and can be the result of the cumulative effect of several manifestations of conduct which, taken in isolation, might not be viewed as harassment (see, for example, Judgments 3485, consideration 6, and 3599, consideration 4), even if they were not challenged at the time when they occurred (see, for example, Judgment 3841, consideration 6).
Reference(s)
ILOAT Judgment(s): 2067, 3485, 3599, 3841, 4034
Keywords:
harassment; receivability of the complaint;
Consideration 6
Extract:
It is firmly established in the case law that the person alleging harassment bears the burden of proving the allegation (see Judgments 2745, consideration 20, 3347, consideration 8, 3692, consideration 18, 3871, consideration 12, and 4171, consideration 7).
Reference(s)
ILOAT Judgment(s): 2745, 3347, 3692, 3871, 4171
Keywords:
burden of proof; harassment;
Consideration 11
Extract:
In order to determine whether harassment is established, the Tribunal will refer to the Organization’s definition of harassment (see Judgments 2594, consideration 18, 4038, consideration 18, and 4039, consideration 16).
[...]
The three irregularities noted by the Tribunal, the first of which preceded the harassment claim by ten years and the second by five years, are unrelated and were committed by different persons. It cannot reasonably be concluded that, cumulatively, they are indicative of “harassing behaviour of a discriminatory, offensive, humiliating, intimidating or violent nature or an intrusion of privacy” (Article 2.9 [...]) nor that they are consistent with the creation of an “intimidating, hostile or abusive working environment or [...] used as the basis for a decision which affects [the complainant’s] employment or professional situation” (Article 13.4 of the current Staff Regulations). In the instant case, harassment is not established.
Reference(s)
ILOAT Judgment(s): 2594, 4038, 4039
Keywords:
harassment;
Judgment 4243
129th Session, 2020
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the dismissal of her complaint of discrimination and harassment.
Judgment keywords
Keywords:
complaint allowed; harassment;
Consideration 24
Extract:
The Tribunal recalls that harassment cases should be treated as quickly and efficiently as possible, in order to protect staff members from unnecessary suffering (see Judgments 3447, consideration 7, and 2642, consideration 8).
Reference(s)
ILOAT Judgment(s): 2642, 3447
Keywords:
harassment;
Judgment 4241
129th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaint challenges the decision to dismiss her complaint of harassment as unsubstantiated.
Judgment keywords
Keywords:
complaint allowed; decision quashed; harassment;
Considerations 11-12
Extract:
Although the complainant did not provide a list of witnesses in her harassment complaint, she stated therein that she had named witnesses throughout that complaint wherever relevant. She identified about twenty-four persons with reference to various allegations of harassment which she proffered. Initially, between October and November 2016, the IOS interviewed seven of those persons and then transmitted a summary of their testimony to the complainant in December 2016 for her comment. In her response, dated 13 January 2017, the complainant noted that the IOS had not interviewed her or other witnesses whom she had identified. In March 2017, the IOS called five other witnesses. It called the complainant for oral testimony in May 2017. The IOS did not call some of the persons whom the complainant had identified concerning specific allegations, the UNAIDS Chief of Staff and the UNAIDS Executive Director in particular. This was in breach of proper procedure, particularly given that the IOS has not explained why it did not hear those persons (see Judgment 4111, consideration 3).
There was also a breach of proper procedure when, notwithstanding the clear discrepancies between critical aspects of the evidence given by the complainant and the three persons whom she accused of harassment (some of which the complainant had detailed in her response of January 2017 and later in her oral testimony), the IOS did not call those persons again to clear the discrepancies (as contemplated by Article 24 of the Investigation Process) in order to determine the truth and properly establish the facts. Moreover, the IOS erred when contrary to the indication contained in paragraph 3.1.5 of the Policy, that harassment is normally prolonged and persistent, as well as the settled principle that an accumulation of events over time may be cited in support of an allegation of harassment, the IOS rejected each allegation of harassment separately without considering whether cumulatively they provided proof of harassment.
Reference(s)
ILOAT Judgment(s): 4111
Keywords:
due process; evidence; harassment; inquiry; investigation; witness;
Considerations 21-22
Extract:
In the Tribunal’s view, the humiliating circumstances were exacerbated on the evidence, which the IOS correctly accepted, that the DXD/MER did not invite the complainant for whom she was the first-level supervisor to regular one-on-one meetings. This was an essential supervisory duty. The IOS found that the DXD/MER could not have reasonably known that neglecting to invite the complainant to such meetings regularly would offend, humiliate or intimidate her and that her harassment complaint did not state that the DXD/MER “persistently refused to meet with her” on that basis. According to the IOS, it was open to the complainant to request such meetings if she believed that they were warranted, and it noted that the complainant was also said to be reluctant to meet with the DXD/MER. It therefore concluded that there was no evidence to support the allegation that the latter’s conduct constituted harassment in this respect. This finding was mistaken.
Regular one-on-one meetings with the complainant as a Department Director to discuss technical and administrative matters, was an essential management requirement for the DXD/MER as her first-level supervisor. It was not dependent upon a request and justification by the complainant.
Keywords:
harassment; supervision;
Consideration 24
Extract:
[T]he finding of harassment, which has been reached at the end of proceedings to which the persons called into question are not party and in which they have therefore been unable to comment, may not under any circumstances be used against them in any context other than that of the instant judgment. The conclusion is, however, that WHO/UNAIDS, which have a duty to protect each of their officials, have incurred liability towards the complainant on account of this harassment and must therefore be ordered to redress the injury which she has thus suffered.
Keywords:
harassment; liability;
Consideration 4
Extract:
[The complainant's] claim for moral damages on the ground that there was excessive delay in the investigation process is well founded. The Tribunal has consistently stated that harassment cases should be treated as quickly and efficiently as possible, in order to protect staff members from unnecessary suffering, but attention must also be paid to thoroughness and procedure (Judgment 3447, consideration 7), and that the moral injury caused to the complainant by excessive delay will be fairly redressed by awarding her or him compensation (see, for example, Judgment 4111, consideration 9). The complainant submitted her harassment complaint on 19 January 2016. The IOS called the first witness on 24 October, some nine months later. On 13 July 2017 it submitted its report to the Executive Director, who informed the complainant by correspondence of 13 September 2017 that the matter was closed. The duration of the process was excessive both in light of the Tribunal’s case law and paragraph 2.1 of the Policy on the Prevention of Harassment at WHO[.]
Reference(s)
ILOAT Judgment(s): 3447, 4111
Keywords:
harassment; moral injury;
Consideration 9
Extract:
Regarding the applicable general principles, the Tribunal has stated that the question whether harassment occurred must be determined in the light of a careful examination of all the objective circumstances surrounding the acts complained of. There is no need to prove that the perpetrator of these acts intended to engage in harassment, the main factor being the perception that the person concerned may reasonably and objectively have of acts or remarks liable to demean or humiliate her or him. The Tribunal’s case law has always recognised that an allegation of harassment has to be borne out by specific facts, the burden of proof being on the person who pleads it, it being understood that an accumulation of events over time may be cited in support of such an allegation (Judgment 4034, consideration 16). An unlawful decision or inappropriate behaviour is not enough to prove that harassment has occurred (Judgment 2861, consideration 37). The Tribunal has also held that behaviour will not be characterised as harassment or mobbing if there is a reasonable explanation for the conduct in question (Judgment 2370, consideration 17). It further stated that, on the other hand, an explanation which is prima facie reasonable may be rejected if there is evidence of ill will or prejudice (see, for example, Judgment 3996, consideration 7B).
Reference(s)
ILOAT Judgment(s): 2370, 2861, 3996, 4034
Keywords:
general principle; harassment;
Consideration 13
Extract:
The Tribunal has stated that it is by no means abnormal that the investigations conducted with a view to ascertaining the truth of the statements contained in a complaint should be widened to encompass other similar behaviour on the part of the alleged harasser. It noted that it is in fact often the best means of corroborating the allegations of the complainant in an area where it may be impossible to produce material evidence. It has further stated that, more generally, the question whether or not harassment has occurred must be determined in the light of a careful examination of all the objective circumstances surrounding the events complained of by the alleged victim (see, for example, Judgments 3233, consideration 6, and 3640, consideration 14). The Tribunal notes that notwithstanding that Mr F.C. had testified that he sustained treatment that was similar to that which the complainant alleged at the hands of the DXD/MER, who was then his second-level supervisor, his testimony found no place in the IOS’s analysis.
Reference(s)
ILOAT Judgment(s): 3233, 3640
Keywords:
burden of proof; evidence; flaw; harassment; inquiry; investigation;
Consideration 7
Extract:
WHO raises receivability as a threshold issue. It argues that matters which are raised in this case are irreceivable insofar as they are covered by separate proceedings, including the complainant’s first complaint contesting the decision to reassign her as Senior Advisor, SIE, and other proceedings that are being pursued by the complainant independently of the challenge to the impugned decision to close her harassment complaint. However, it is relatively clear that the allegations insofar as they may concern those other matters are intended to establish an aspect of the unlawfulness of the decision to close the harassment complaint and the complainant’s claims are cast no wider. It is open to the complainant to follow this course (see, for example, Judgment 4149, consideration 7).
Reference(s)
ILOAT Judgment(s): 4149
Keywords:
harassment; receivability of the complaint; res judicata;
Considerations 17-19
Extract:
Contrary to the IOS’s findings, the Tribunal finds that there is sufficient evidence that the complainant suffered harassment over a period of time. The Tribunal appreciates that the DXD/MER took some of the actions complained of in the performance of her managerial and supervisory functions or out of the managerial necessity of the organization. The Tribunal also appreciates that the DXD/MER intended her Senior Advisor and the Director of her Office, Ms E. and Ms F. respectively, to assist her to coordinate her work with her four Department Directors, including the complainant. However, the actions were done in a manner which reasonably caused the complainant to feel that Ms E. and Ms F. were reviewing and supervising her work. It is also apparent from the evidence that misunderstandings occurred as to how Ms E. and Ms F. were to communicate with the complainant and the Tribunal accepts the complainant’s evidence that on occasions she did not receive responses to matters which she raised. In the Tribunal’s view, in these circumstances the complainant would have reasonably felt offended and humiliated. Ultimately, however, Ms E. and Ms F. were merely executing the orders of the DXD/MER, which also created an intimidating work environment for the complainant.
The circumstances also lead to the conclusion that, given her administrative experience and knowledge, the DXD/MER ought reasonably to have known that the complainant would be offended and humiliated by the actions. Under paragraph 3.1.3 of the Policy, it was not necessary that the actions complained of were intended to have had that effect. There is evidence, which the Tribunal accepts, that the complainant raised some of the matters that concerned her with the DXD/MER. For example, she raised her concern about the role that the Director of the DXD/MER’s Office, Ms F., played in relation to her which occasioned a meeting between the complainant, the DXD/MER, Ms E. and Ms F.
It is apparent from the evidence that, based on the orders of the DXD/MER, Ms E. and Ms F. did not operate within boundaries that the complainant was aware of, which could have prevented encroachment upon the functions set out in her job description. It is understandable that this caused the complainant to feel that the DXD/MER had inappropriately delegated some of her managerial duties to staff members in her Office. They held meetings with her in instances in which the DXD/MER, as her first-level supervisor, should have met on a one-on-one basis with the complainant as a Department Director. [...]
The uncontroverted evidence is that the Senior Advisor had informed the complainant by email that she (the Senior Advisor) and the DXD/MER had reviewed the complainant’s objectives together and that she would share their feedback with her at a short meeting. The DXD/MER had thereby clearly delegated her responsibility under the rules to the Senior Advisor, a junior to the complainant, to undertake that critical task which the DXD/MER was required to perform. In the Tribunal’s view, given the latter’s experience in senior management roles in international organizations and the leading role which she played in reforming performance management and the introduction of the new performance management system, the DXD/MER ought reasonably to have known that this action would have offended and humiliated the complainant.
Keywords:
harassment;
Consideration 23
Extract:
[A]lthough the Tribunal concludes that there is nothing in the evidence to suggest that the DXD/MER intentionally set out to unsettle the complainant, the fact remains that taking all the circumstances of the case into account, the actions taken by or on the orders of the DXD/MER were liable to offend and humiliate the complainant. Moreover, in the Tribunal’s view, a reasonable person would have found the actions offensive and humiliating. The DXD/MER ought reasonably to have known that those actions would have offended and humiliated the complainant, and that they interfered with the complainant’s ability to carry out her work and created a hostile work environment for her, thus constituting harassment in the terms set out in the Policy. This entitles the complainant to moral damages[.]
Keywords:
harassment; moral injury;
Judgment 4238
129th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to reclassify his post.
Consideration 5
Extract:
[The Tribunal's case law] states that an allegation of harassment must be borne out by specific facts, the burden of proof being on the person who pleads it (see, for example, Judgment 4034, consideration 16).
Reference(s)
ILOAT Judgment(s): 4034
Keywords:
harassment;
Judgment 4233
129th Session, 2020
International Office of Epizootics
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to award him compensation for the moral harassment which he alleges he has suffered.
Judgment keywords
Keywords:
complaint dismissed; harassment;
Consideration 3
Extract:
Under the Tribunal’s case law, harassment can be the cumulative effect of a series of actions which, in isolation, might not be viewed as harassment (see, for example, Judgments 3485, consideration 6, 3599, consideration 4, and 4034, consideration 16) even if they were not challenged at the time of the events (see Judgment 3841, consideration 6). However, firstly, the person alleging harassment bears the burden of proving the allegation (see Judgments 2067, consideration 5, 2100, consideration 13, 2370, consideration 9, and 2406, consideration 13) and, secondly, the only actions which can be said to constitute harassment are those for which there is no reasonable explanation (see Judgments 2370, consideration 17, 2524, consideration 25, 3447, consideration 9, 3996, consideration 7B, 4038, consideration 18, and 4108, consideration 7).
Reference(s)
ILOAT Judgment(s): 2067, 2100, 2370, 2406, 2524, 3447, 3485, 3599, 3841, 3996, 4034, 4038, 4108
Keywords:
burden of proof; harassment;
Consideration 2
Extract:
It is well established that an international organisation has a duty to its staff members to investigate claims of harassment thoroughly and objectively (see, for example, Judgments 3071, consideration 36, 3314, consideration 14, 3337, consideration 11, and 4013, consideration 10). The OIE is under such an obligation even though the existing rules do not provide for any specific procedure to deal with harassment complaints. Indeed, it would be desirable for the Organisation to address this matter and to adopt such a procedure, possibly drawing on those which exist in most international organisations and on the case law of the Tribunal.
Reference(s)
ILOAT Judgment(s): 3071, 3314, 3337, 4013
Keywords:
harassment; inquiry; investigation; rules of the organisation;
Judgment 4219
129th Session, 2020
ITER International Fusion Energy Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who had been seconded to the ITER Organization, challenges the decision to end his secondment and the failure to investigate his harassment allegations.
Judgment keywords
Keywords:
competence; complaint allowed; harassment; ratione personae; secondment;
Consideration 18
Extract:
While this complaint is receivable and one aspect of the complainant’s case is well founded, the question of relief is problematic. In relation to the alleged harassment, he seeks an order directed to the defendant organisation “to recognize that he has been a victim of harassment and compensate him for the damage he has suffered as a consequence of the harassment, in the amount of [euros] 50,000”. Even if it was appropriate, as a matter of principle, to make such an order, there is insufficient material before the Tribunal to undertake an assessment of whether harassment has occurred. Also, in the circumstances of this case, given that the complainant has left the ITER Organization, it would not be advisable to direct the ITER Organization to investigate his allegations (see Judgments 3639, consideration 9, or 3935, consideration 8). However, he is entitled to moral damages for the failure of the ITER Organization to do so[.]
Reference(s)
ILOAT Judgment(s): 3639, 3935
Keywords:
harassment; inquiry; investigation; moral injury;
Judgment 4217
129th Session, 2020
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to provide her with the record of the investigation that ensued after she filed a harassment complaint against her supervisor, and the fact that she received no compensation for the moral harassment that she claims to have suffered.
Judgment keywords
Keywords:
complaint allowed; decision quashed; harassment; inquiry; investigation;
Considerations 4 and 6
Extract:
The Tribunal considers that IFAD erred in refusing to grant the complainant’s request for a copy of the report established by the AUO at the end of the investigation in respect of the supervisor mentioned in her harassment complaint.
The Tribunal has consistently held that a staff member must, as a rule, have access to all the evidence on which the competent authority bases its decision concerning her or him (see, for example, Judgments 2229, under 3(b), 2700, under 6, 3214, under 24, or 3295, under 13). This implies, among other things, that an organisation must forward to a staff member who has filed a harassment complaint the report drawn up at the end of the investigation of that complaint (see, for example, Judgments 3347, under 19 to 21, and 3831, under 17).
Of course, this obligation to disclose must be balanced against the need to respect the confidential nature of some aspects of an inquiry, particularly the witness statements gathered in the course of the inquiry. As the Tribunal’s case law has confirmed, such confidentiality may be necessary in order to ensure witnesses’ protection and freedom of expression (see, in particular, Judgments 3732, under 6, and 3640, under 19 and 20). Moreover, in this case the confidentiality of some information related to the investigation was expressly required by the provisions on this matter contained in section 4 of Annex I to the President’s Bulletin PB/2007/02 of 21 February 2007 concerning investigation processes.
Although it is true that IFAD produced a redacted copy of the investigation report as an annex to its surrejoinder, by refusing to provide the complainant with the report in question during the internal appeals procedure it nevertheless unlawfully deprived her of the possibility of usefully challenging the findings of the investigation. In this case, 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. Indeed, the Tribunal’s case law recognises that, in some cases, the nondisclosure of evidence can be corrected when this flaw is subsequently remedied, including in proceedings before it (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, cited above, under 16, 17 and 29, or 3995, under 5).
[...]
[I]t [...] follows from the above that the decision [...] whereby IFAD refused to provide the complainant with the investigation report drawn up by the AUO, is unlawful and must, therefore, be set aside.
Reference(s)
ILOAT Judgment(s): 2229, 2315, 2700, 3214, 3295, 3347, 3490, 3640, 3732, 3831, 3995
Keywords:
confidential evidence; harassment; inquiry; investigation; organisation's duties;
Consideration 9
Extract:
According to the Tribunal’s case law, by virtue of the principle that an international organisation must provide its staff members with a safe and healthy working environment, it is liable for all injuries caused to a staff member by a supervisor when the victim is subjected to treatment that is an affront to her or his dignity (see, for example, Judgments 1609, under 16, 1875, under 32, 2706, under 5, or 3170, under 33).
Reference(s)
ILOAT Judgment(s): 1609, 1875, 2706, 3170
Keywords:
compensation; harassment; moral injury; respect for dignity; working conditions;
Judgment 4213
129th Session, 2020
Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject his claims of harassment and constructive dismissal.
Judgment keywords
Keywords:
case sent back to organisation; complaint allowed; decision quashed; harassment; motivation;
Judgment 4211
129th Session, 2020
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns what she considers to be an implied rejection of her claims of moral and sexual harassment and abuse of authority.
Judgment keywords
Keywords:
case sent back to organisation; complaint allowed; harassment; implied rejection of internal appeal; internal remedies exhausted;
Judgment 4207
129th Session, 2020
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
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.
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:
final decision; harassment; inquiry; investigation; sexual harassment;
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:
disciplinary procedure; harassment; misconduct; 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:
harassment; inquiry; investigation; misconduct; reasonable time; 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 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:
harassment; intention of parties; sexual harassment; standard of proof;
Judgment 4185
128th Session, 2019
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who alleges that he was the victim of harassment, seeks redress for the injury he considers he has suffered.
Judgment keywords
Keywords:
complaint dismissed; harassment;
Judgment 4180
128th Session, 2019
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of her appeal against the decision to abolish her post and terminate her appointment, the decision not to shortlist her for a specific position and the decisions not to select her for three other positions.
Consideration 11
Extract:
The Tribunal would normally remit the matter to the ICC so that a proper investigation regarding the complainant’s harassment complaint could be conducted. However, in this case, in view of the fact that the complainant is no longer employed with the ICC and given the passage of time since the alleged events leading to the harassment complaint occurred, remitting the matter to the ICC would serve no useful purpose. Nevertheless, since the complainant was denied the right to have her harassment complaint duly investigated, and also taking due note of the fact that she could have initiated the formal procedure directly with the Registrar in accordance with Section 7.1 of the Instruction, the complainant will be awarded moral damages [...].
Keywords:
case sent back to organisation; harassment;
Judgment 4171
128th Session, 2019
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to dismiss her internal complaints of moral harassment.
Consideration 7
Extract:
It is firmly established in the case law that the person alleging harassment bears the burden of proving the allegation (see Judgments 2745, consideration 20, 3347, consideration 8, 3692, consideration 18, and 3871, consideration 12).
Reference(s)
ILOAT Judgment(s): 2745, 3347, 3692, 3871
Keywords:
burden of proof; harassment;
Judgment keywords
Keywords:
complaint allowed; decision quashed; duty of care; harassment;
Consideration 13
Extract:
Even though the charge of harassment cannot stand, an international organisation fails in its duty to treat staff members with dignity and avoid causing them undue and unnecessary injury if the organisation is aware of an unhealthy working atmosphere in the service where a staff member works but allows it to remain without taking adequate measures to remedy the situation (see, to this effect, Judgment 2067, considerations 16 and 17).
Reference(s)
ILOAT Judgment(s): 2067
Keywords:
duty of care; duty to inform; good faith; harassment; organisation's duties; patere legem; respect for dignity;
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.
Considerations 7-8
Extract:
[B]y dismissing the complainant’s allegations of harassment on the grounds that the established facts could not constitute psychological harassment in the absence of intention, the Director General erred in law.
It follows that the decision of 15 March 2016 must be set aside.
In such a case, the Tribunal should in principle remit the case to the Organisation for a new decision to be taken on the basis of the correct interpretation of the applicable provisions. However, for the same reasons as those already indicated in consideration 5 [of the judgment], the Tribunal will not do so in this case and will instead award the complainant compensation for the injury caused by the decision of 15 March 2016.
Keywords:
harassment; moral damages;
Judgment keywords
Keywords:
complaint allowed; decision quashed; harassment;
Judgment 4158
128th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant submits that WIPO has not fully compensated her for the injury that she suffered as a result of being subjected to harassment.
Judgment keywords
Keywords:
complaint dismissed; harassment;
Consideration 3
Extract:
Where an organization establishes the existence of harassment, it should put an end to it as quickly as possible, restore the victim to a normal work situation and, if necessary, redress the injury caused. Ordinarily, this redress takes the form of monetary compensation for the injury suffered. It is self-evident that, according to the circumstances of each case, particular measures, for example supervision or support, may also be required. But an organization is only required to take such measures if they are essential or, at least, necessary.
Keywords:
harassment;
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