UNDT/2020/092, Hammond
The investigation complied with the requirements set out in ST/SGB/2008/5 and the Applicant was afforded proper due process. The provisions of ST/SGB/2008/5 do not grant a right to staff members who bring complaints of prohibited conduct given to interview certain witnesses in order to confront his accusersand therefore finds no merit to this claim of an irregularity. The Fact-Finding Panel fully considered all relevant and material aspects of the Applicant’s complaint. In smaller entities in the Organization, a head of office may also be required to act as a Second Reporting Officer (“SRO”) of staff members and make appropriate managerial decisions in both capacities. Such a circumstance does not raise an inherent conflict of interest which would prevent the SRO from reasonably exercising his or her duties and responsibilities as head of office in relation to the the implementation of ST/SGB/2008/5. There was no merit to the claim that the SRO may have acted partially in this matter. The Applicant did not present any exceptional circumstances warranting disclosure of the Panel’s Report. ST/SGB/2008/5 do not grant the Applicant a right to comment on the Panel’s report and, as such, there is no procedural irregularity in this regard. ST/SGB/2008/5 does not require a mandatory three month deadline for the completion of the fact-finding and each case must be considered within its own unique set of facts and circumstances. In the present case, given that the Panel interviewed 13 individuals in the course of its investigation, a four month period to complete the investigation was a reasonable amount of time and therefore there is no undue delay in the process.
The processing of the Applicant’s complaint of prohibited conduct under ST/SGB/2008/5 (Prohibition of discrimination, harassment, including sexual harassment, and abuse of authority).
The Dispute Tribunal is not vested with the authority to conduct a new investigation of the initial harassment allegations. The Dispute Tribunal’s scope of review is limited to determining whether the exercise of the Administration’s discretion is legal, rational, reasonable and procedurally correct, so that it does not lead to unfairness, unlawfulness or arbitrariness. The Dispute Tribunal can consider whether relevant matters have been ignored and irrelevant matters considered, and also examine whether the decision is absurd or perverse. It is not the role of the Dispute Tribunal to substitute its own decision for that of the Secretary-General. A complainant is not entitled to receive the full investigation report unless cogent arguments have been presented to demonstrate “exceptional circumstances”.