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UNDT/2015/088, Masylkanova

UNAT Held or UNDT Pronouncements

The UNDT found, on the one hand, that UNAMA decision to close the case given the conclusions of the investigation constituted a valid exercise of discretion by the Administration, and that the Organization did not breach the Applicant’s rights by not sharing the full investigation report with her. On the other hand, the Tribunal found that UNAMA failed to take diligent action with respect to the Applicant’s complaint and that it incurred inordinate delays both in reviewing and assessing the Applicant’s complaint and in setting up a fact-finding panel and conducting the investigation into her allegations, in breach of several provisions of ST/SGB/2008/5. As a result, the Tribunal awarded the Applicant USD3,000 compensation.

Decision Contested or Judgment Appealed

The Applicant appealed the decisions (a) to take no further action concerning her complaint of harassment against her supervisor and (b) not to disclose the investigation report of the panel set up to investigate into her complaint.

Legal Principle(s)

Scope of review of a decision to take no further action on a complaint of prohibited conduct: The Tribunal is not vested with the authority to conduct a fresh investigation into allegations of harassment that were the basis of a complaint. It is not the Tribunal’s role to substitute its own judgment to that of the Secretary-General. The scope of the judicial review in such cases is restricted to examine how management responded to the complaint in question. The Tribunal must focus on whether the Administration breached its obligations under ST/SGB/2008/5 pertaining to the review of the complaint, the investigation process further to it and/or the decisionmaking as to the adequate course of action. Delays in handling and investigating a complaint of prohibited conduct: Practical and logistical challenges do not justify long delays to handle and investigate a complaint where there is no evidence that the Administration took any positive steps to try to resolve them within an acceptable timeframe. Discretion in conducting an investigation into allegations of prohibited conduct: The primary responsibility for the conduct of an investigation rests with the panel and the latter has wide discretion to determine the evidence it considers relevant for the investigation. Sec. 5.16 of ST/SGB/2008/5 prescribes that the aggrieved individual and the alleged offender must be interviewed. Apart from this requirement, this provision leaves it to the investigators’ judgment to determine who is likely or not to shed light on the behaviour complained of. Although the Appeals Tribunal recently ruled that due process required to hear the witnesses proposed by the applicant (Flores 2015-UNAT-525), this was in a case where the applicant was the alleged offender and he had identified witnesses in response to the charges brought against him. This finding may not lightly be extrapolated to a case where the complainant has requested that certain witnesses be interviewed. Disclosure of the investigation report: Under sec. 5.18(a) of ST/SGB/2008/5, a complainant’s right is limited to receiving an account of the panel’s findings and conclusions; the Administration is under no obligation to provide the complainant with the panel’s report itself. While the Tribunal has held that, this general rule notwithstanding, the decision to provide or not a complainant with a copy of the investigation report should be made on a case-by-case basis, taking due account of the “requirements of good faith and fair dealing”, it has made it clear at the same time that the general rule of sec. 5.18 may only be departed from in “extraordinary circumstances”.Where an applicant requests the disclosure of the investigation report in the context of the proceedings before the Tribunal, the latter shall decide on this motion by virtue of its broad discretion to handle proceedings, while ensuring a fair and expeditious disposal of the case. Delay and moral damage: The emotional distress of a complainant as a result of the Organization’s failure to timely respond to his or her complaint for prohibited conduct amounts to harm warranting compensation.

Outcome
Judgment entered for Applicant in full or in part
Outcome Extra Text

Only financial compensation

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