CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ JUDGMENT 3640 OF THE ADMINISTRATIVE TRIBUNAL OF THE INTERNATIONAL … Director-General had decided to confirm her decision to dismiss him summarily for serious misconduct. III(ii) Analysis of legal aspects of the case The following important legal findings are to be highlighted: • Determination of the question of whether or not harassment has occurred in the light of a careful examination of all the objective circumstances surrounding the events complained by of the alleged victim (consideration 14); • The fact that the reprehensive conduct of an international civil servant may well give rise to a disciplinary measure taken by the employing organisation on its own initiative, regardless of whether one of his or her colleagues files a complaint (consideration 15). This statement is extremely important in cases of sexual harassment because the victim(s) and, in particular, those holding non-permanent appointments, may fear that by bringing a complaint they may destroy their career(s) with UNESCO; • The fact that in order to respect the rights of defence, it is sufficient for the official to be informed precisely of the allegations made against her or him and of the content of testimony taken in the course of the investigation, in order that she or he may effectively challenge the probative value thereof (consideration 20); • The fact that the acts of which the complainant was accused are established by sufficiently strong evidence that, in accordance with the requirements of the case law on the subject, it has been proved « beyond reasonable doubt » that they actually took place (consideration 27); and, finally, • The fact that the disciplinary authority within an international organisation has discretion to choose the disciplinary measure imposed on an official for misconduct. However, its decision must always respect the principle of proportionality ( emphasis added – JH ), which applies in this area (consideration 29). 4. Some important principles of ILOAT case law concerning harassment • “… an international organization fails in its duty to treat staff members with dignity and avoid causing them undue and unnecessary injury if the organization 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 …” (Judgment 4171, consideration 13); • “… the person alleging harassment bears the burden of proving the allegation …” (Judgment 4171, consideration 7); • “… an allegation of harassment must be borne by specific facts, the burden of proof being on the person who pleads it, and […] an accumulation of events over time may be cited to support an allegation of harassment” (Judgment 4034, consideration 16. This Consideration makes a cross-reference to Judgment 3347, consideration 8). Furthermore, if the complainant claims moral damages, for the allegedly long process following the submission of the harassment complaint, which had a direct impact on his health, in addition to the burden of proof, “the complainant bears the burden of proof and must provide evidence of the alleged unlawful act, of the injury suffered, and of the causal link between the unlawful act and injury (emphasis added – JH)”, (Judgment 4739, consideration 14);

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