UNDT/2022/008, CAHN
Having examined the evidence on file, particularly the panel’s investigation report and its annexes, the Tribunal is satisfied that OHCHR properly handled the Applicant’s complaint against his FRO, and that the case record fully supports the reasonableness of the decision not to initiate disciplinary proceedings against said FRO. The Tribunal further observes that the Applicant’s due process rights as set forth in ST/SGB/2008/5 and ST/AI/2017/1 were respected. The Applicant was inter alia interviewed and given an opportunity to provide his version of events and informed of the outcome of his complaint, which was complemented by a summary of the investigation report. This is in line with what is required under sec. 5.5(i)(ii) of ST/SGB/2019/8, which was in force at the time of and governed the contested decision. The Tribunal found that the investigation of the Applicant’s complaint against his FRO was not flawed and that no compensation arises in this respect. The Tribunal also found that the decision not to initiate disciplinary proceedings against the Applicant’s FRO in connection with her complaint against the Applicant is supported by the documentary evidence on record and, thus, lawful. It is, in general, an employer’s duty to protect the health, safety and welfare of its employees and other people who might be affected by its business. Employers must do whatever is reasonably practicable to achieve this. This means making sure that workers and others are protected from anything that may cause harm, effectively controlling any risks to injury or health that could arise in the workplace. Duty of care risks are constituted not only of occupational security risk (e.g., due to an armed conflict) or health risks (e.g., due to exposure to contagious diseases) or safety risks (e.g., work in substandard facilities), but also of risks arising from the prolonged exposure to high stress situations, instances of violence, harassment or discrimination, and any factor compromising health, security and wellbeing in the workplaces as well. The standard of care is determined by requirements of reasonableness. It will vary depending on the circumstances of the case. Duty of care is crystallised in an implicit and explicit way in the obligations the Organization has towards its staff that are contained in both hard and soft law instruments, Policies, Regulations and Rules, Administrative Instructions and other internal acts of the Organization. Degrading conditions of work violated the Applicant’s rights and dignity, going as far as to impair his physical and mental health as well as compromising his professional and personal future. Given the objective incidents flagged by the Applicant in his complaint, the occurrence of collapse of the Applicant during a meeting in the office, and the long certified sick leave of the Applicant, the Tribunal cannot doubt about the awareness by the OHCHR management of the Applicant’s health issues and about its objective origin from the work conditions. Duty of care would have required OHCHR to take immediate protective action after having received the Applicant’s alarming complaint. Instead, OHCHR Senior Management took no action to protect the Applicant from a toxic working environment. The Tribunal finds the Organization fell short of its duty to promptly address situations where the work environment was not harmonious, that the Applicant has sufficiently demonstrated the negative impact on his health of the environment in which he had to work and that there are grounds for the award of compensation. Given the discretion to determine the amount of compensation based on its assessment of the evidence concerning the nature, extent and effects of the harm, having considered all relevant factors and circumstances and, moreover, having in mind the criteria set out in Cohen by UNAT, the Tribunal finds that the harm suffered by the Applicant can be compensated by an award of one month of net base salary for each month of infringement of the duty of care by OHCHR, that is the period running from OHCHR’s inertia until the Applicant’s return to work, namely from February to August 2019 (seven months).
The Applicant contested the decisions: 1) to close his ST/SGB/2008/5 complaint against his first reporting officer (FRO); 2) not to pay him compensation for moral harm resulting from harassment and abuse of authority by his FRO as well as from the Organization’s lack of protective measures and 3) not to take disciplinary or other appropriate action against his FRO, in accordance with sec. 5.19 of ST/SGB/2008/5, for making malicious allegations against him.
When assessing the legality of contested decisions related to ST/SGB/2008/5 complaints, the Tribunal must examine whether the Organization breached its obligations pertaining to the review of the complaint and the investigation process that ensued, as set out primarily in ST/SGB/2008/5. In cases of harassment and abuse of authority, the Tribunal is not to conduct a fresh investigation into the initial complaint. It is also not the Tribunal’s role to substitute its own judgment for that of the Organization. The Tribunal may “consider whether relevant matters have been ignored and irrelevant matters considered”. Should the Tribunal find that the Organization acted irrationally or unreasonably in reaching its decision, it is obliged to strike it down. The Tribunal does not ask itself if the contested decision is right or wrong but rather determines if the decision is one that a reasonable person might have reached. To do so, the Tribunal will consider the record before the decision-maker at the time of the contested decision. Consequently, documents not before the decision-maker have no relevance in the context of the Tribunal’s judicial review of the outcome of complaints under ST/SGB/2008/5 or the more recent ST/SGB/2019/8. The instigation of disciplinary charges against a staff member is the privilege of the Organization itself, and it is not legally possible to compel it to take disciplinary action. The Tribunal may, however, examine the process leading to a decision not to pursue disciplinary proceedings.
Application partially granted by awarding compensation for harm suffered equivalent to seven months of net base salary.