UNDT/2024/112, Turcanu
The Applicant disputed whether the Office of Internal Audit and Investigations (“OIAIâ€) decision not to initiate an investigation into his complaint of alleged harassment and abuse of authority was lawful, reasonable, and fair. He asserted that while work-related matters normally do not constitute prohibited conduct, UNICEF’s Policy on Prohibited Conduct does not exclude performance-related matters from being considered harassment and abuse of authority.
The issue before the Tribunal was determining whether the Applicant’s contentions fall in the scope of regular disagreements on work performance or possible prohibited conduct.
The Tribunal noted that the principal reason for the Applicant’s complaint against his supervisor primarily relates to his disagreement with the low-performance rating in the 2022 Performance Evaluation Review (PER) and the following decision to place him under a performance improvement plan (PIP) for the subsequent cycle. However, a plain reading of the evidence on record did not serve to conclude any form of harassment and abuse of authority in the way the Applicant’s performance evaluation was conducted, nor in its content. Merely disagreeing with an evaluation method does not lead to the conclusion that it was unreasonable and unfair.
Furthermore, the Tribunal did not identify any errors in the preliminary assessment of the Applicant’s complaint.
Accordingly, the Tribunal found that in undertaking the preliminary assessment, OIAI duly reviewed the Applicant’s complaint and evidence and did not err in concluding that the complaint lacked sufficient evidence and meaningful indicia of misconduct.
The Tribunal concluded that the contested decision was lawful and reasonable. It noted that the incidents described in the Applicant’s complaint did not provide sufficient grounds to consider that his supervisor had engaged in prohibited conduct, but they fell within the realm of regular workplace disagreements.
In light of the above, the Tribunal rejected the application in its entirety.
The Applicant contests the decision of the Office of Internal Audit and Investigations ("OIAI") to close his complaint of harassment and abuse of authority against his supervisor following a preliminary review.
In determining the lawfulness of an administration decision concerning the investigation of a complaint, the Tribunal may enter into an examination of the propriety of the procedural steps that preceded and informed the decision eventually made, in as much as they may have impacted the final outcome.
In cases of harassment and abuse of authority, the Tribunal is not vested with the authority to conduct a fresh investigation into the initial complaint. As for any discretionary decision of the Organization, it is not the Tribunal’s role to substitute its own decision for that of the Administration.
The Administration has a degree of discretion as to how to conduct a review and assessment of a complaint and may decide whether to undertake an investigation regarding all or some of the allegations.
The complainant has the burden of alleging the whole set of factual circumstances that may reasonably lead to the conclusion that prohibited conduct has been committed. It is essentially on this basis that the responsible official will decide whether there are sufficient grounds to warrant a formal fact-finding investigation.
The instigation of disciplinary charges against a staff member is the privilege of the Organization, and it is not legally possible to compel the Administration to take disciplinary action.