UNDT/2019/006, Nikolic
The issue of disclosing an investigation report is not new. It was, in fact, considered by this Tribunal in its judgments Adorma UNDT/2010/205 and Haydar UNDT/2012/201 as well as by UNAT in judgment Ivanov 2015-UNAT-519. In the latter, UNAT entered into consideration of the non-disclosure of an investigation report despite the fact that the Secretary-General had questioned the UNDT’s jurisdiction over such a decision. The Organisation’s obligations as stipulated in ST/SGB/2008/5 are an integral part of a staff member’s contractual rights. They include the obligations of the Organisation and procedures that the Organisation would have to initiate to protect the victims from abuse, harassment and discrimination. The Tribunal finds that the decision not to share the investigation report with the Applicant is an administrative decision as per art. 2 of its Statute and that the application contesting that decision is therefore receivable ratione materiae. The Applicant has the right to file a complaint against any acts of harassment against her but she can’t decide on any action against the accused staff member. In this case the Applicant’s rights were respected: the Administration followed up on her complaint, initiated a preliminary investigation and communicated its conclusion after the investigation report was finalised. Thereby, her arguments concerning the inability to assert her rights or not having an effective recourse are not valid. Also the Applicant has not put forward any exceptional circumstances to support her request to obtain a copy of the investigation report. The Tribunal has not been seized regarding the absence of a request for management evaluation against the Administration’s decision not to proceed with a disciplinary procedure following receipt of the investigation report. Furthermore, in light of the evidence, even if the Applicant wanted to remedy the situation, it is clear that such a step is time-barred.
The Applicant contests the “implicit refusal…to transmit to [her] the report made by… two inspectors on facts of harassment against [her].
Staff rule 11.2 requires applicants, as a first step in the process of a formal complaint, to submit to the Secretary-General in writing a request for a management evaluation of the administrative decision. Thus, art. 8.1(c) of the UNDT Statute and art.7.1 (a) of its Rules of Procedure foresee that the management evaluation of administrative decisions is a sine qua non condition to the receivability of applications before the Tribunal. The Administration is not obliged to share the entire contents of an investigation report with the complainant. The legislator’s intent was only to guarantee the complainant limited access to the report by prescribing the sending of a simple summary, leaving to the Administration discretionary power in this domain. (sec. 5.18 of ST/SGB/2008/5). Case law (Adorna, Haydar and Ivanov) has confirmed this principle while emphasizing that the exercise of such discretionary power is not absolute but can be examined on a case-by-case basis depending on certain criteria such as, for example, whether the reasons supporting a request to share a report are reasonable or whether there are exceptional circumstances justifying such request. The decision whether or not to proceed with disciplinary proceedings after the finalization of an investigation report rests exclusively with the Organisation who can’t legally be compelled to conduct disciplinary proceedings against a staff member (see Haydar).