KNOW YOUR RIGHTS!An informational seminar presented in

cooperation with the WTO Staff Council: “MOBBING/PSYCHOLOGICAL HARASSMENT”

29 March 2012

Presented by:

Edward Patrick FlahertyJuris Doctor, Admitted to Practice Law before US Supreme Court & in the State of MA

Registered with the Geneva Ordre des avocats as a qualified foreign lawyerSenior Partner, Schwab, Flaherty & Associés, Geneva, Fribourg & Istanbul

tel: 022 840 5000 fax: 022 840 5055

flaherty@sfalegal.com www.int-lawyers.coGeneral Counsel/Founder, Centre for Accountability of IO’s (CAIO)

www.caio-ch.org

Co-Founder, IO Watch

www.iowatch.org© 2012, Schwab, Flaherty & Associes; All rights reserved.

MOST IMPORTANT INFORMATION OF THE DAY

• These seminars are intended to be used for general informational purposes only

• Every case is different--what may be proper advice in one person’s case may be the worst possible advice in another case

• Any staff member who anticipates a serious conflict with the Administration (such as non-renewal of contract, inaccurate PER, mobbing, etc.) should seek assistance from the Staff Council and/or legal counsel as soon as possible--its better to be too early seeking assistance than being too late.

Working Definition of Mobbing• Psychological harassment in the workplace is a

repetitive, prolonged and pernicious process characterized by behaviour on the part of one or several persons which aims to diminish the competence, confidence and self-esteem of the targeted individual (the victim).

• The most common origin is conflict in the workplace which, rather than being promptly defused or resolved, is allowed to persist.

• Assigned duties which are patently or deliberately unrealistic, with the aim of undermining a SM’s self-confidence/esteem may be deemed harassment

• An internal survey done by WHO in 2003, found the rate of “mobbing” or “bullying” experienced by staff was measured at around twice the national average for public institutions throughout Europe!

Mobbing Definition (continued)

• Harassment by a person who is in a position to influence the victim’s career or employment conditions constitutes abuse of authority (=misconduct).

• In the long term, psychological harassment produces a sense of helplessness and submission which can lead to serious and lasting health implications, and ultimately resignation from employment. It may lead to desperate reactions by the victim with negative effects on work and on other staff.

Some (non-exhaustive) Examples of Behavior Which Might Be Harassment

• Public outbursts directed at SM that degrade SM• Deliberate attempts to discredit SM• Threatening/intimidating comments, oral or by e-mail• Deliberate desecration of religous/national symbols• Setting of unattainable work goals/duties• Filing of false performance evaluations• Malicious/unsubstantiated complaints of harassment• Deliberate isolation of SM• Unwelcome verbal/physical contact of sexual nature• Unwelcome sexual advances, pressure for social activity

outside the workplace, suggestive remarks, lewd comments, display of pornography, suggestive gestures, communications or objects of a suggestive nature

MOBBING KILLS!!• In 1994, an ILO translator killed herself after being harassed for more than a

year by fellow staff

• The ILO ADM was well aware of the problems in her unit, but did little to remedy the problem

• Her husband brought an appeal for wrongful death against the ILO, but the ILOAT, while acknowledging that the situation in her unit was “intolerable”, and that the ILO ADM was well aware of what was going on in the unit, refused to hold that her suicide was caused by the admitted harassment she suffered

• Subsequently, the Geneva Attorney General took up the case, and indicated his intention to file criminal charges against the ILO and its DG for the staff member’s wrongful death. Of course, in order to do so, he needed to request that the ILO and DG’s immunity be lifted--the only person who could do that was the DG

• Ultimately, neither the ILO nor the mobbers suffered any sanction

• IMMUNITY=IMPUNITY

Typical Consequences of Mobbing

• Psychological—trouble concentrating or paying attention, mental anguish, sleeplessness, clinical depression

• Psychosomatic and Physical—fatigue, irritability, hyperactivity, headaches, back aches, upset stomach, muscle pain, teeth grinding

• Social—isolation, difficulty in dealing with everyday life/work issues, loss of confidence in oneself, difficulty in managing other personal problems outside of work

Situation at WTO today:

• WTO does have a limited official policy on mobbing—WTO Staff Regulations Standards of Conduct, ANNEX A, para’s. 12-19, and WTO Admin Memo N° 941 (dated 30 April 2002)

• WTO’s current policy mostly addresses Sexual Harassment

• In my experience, many instances of mobbing originated in circumstances of romantic overtures from one staff member to another that are rebuffed, and then turn into straight mobbing

Situation at WTO today:• Like other IO’s have done (i.e., WHO), WTO could very easily

adapt its sexual harassment policy to include psychological harassment as well

• This would make sense as mobbing is believed to be far more pervasive in I/O’s than sexual harassment, and as both have the same deleterious effect on staff morale

• ILOAT has recently filled the lacuna of many IO’s like WTO that lack a comprehensive definition within the staff rules or regulations in a recently decided appeal—In re Frank, ILOAT Judgment N°. 3071, dated 8 February 2012—stating: the definition in the former ILO Collective Agreement reflects what is generally accepted as constituting harassment.

In re Frank (ILOAT Judgment N°. 3071):

• “The expression ‘harassment’ encompasses any act, conduct, statement or request which is unwelcome […] and could, in all the circumstances, reasonably be regarded as harassing behaviour of a discriminatory, offensive, humiliating, intimidating or violent nature or an intrusion of privacy.”

• The definition indicated that “harassment” included “bullying/mobbing”

• which was defined to include:

• “(ii) persistent negative attacks on personal or professional performance without reason or legitimate authority;

• […]

• (iv) abusing a position of power by persistently undermining a […] person’s work […];

• (v) unreasonable or inappropriate monitoring of […] performance”.

• Copy of full former ILO Agreement available from SC or at www.int-lawyers.co

Example of Staff & ADM Responsibilities (at WTO)

• “…every staff member has the right to be treated with dignity and respect, free from abuse or harassment" and free from all forms of discrimination (WTO SoC, paragraph 12).

• Every staff member has a responsibility to all of his or her colleagues to help to foster a harmonious working environment where these principles are guaranteed. In that respect, the WTO Standards of Conduct place a special duty on supervisors to "set the tone by personal example".

• To give effect to these Standards, staff members who feel that they are not being treated with proper dignity and respect must have available appropriate procedures which they can use with complete trust and confidence, to ensure that improper treatment is terminated (AM N° 941, para 4).

Example of Staff & ADM Responsibilities (at WTO)

• A staff member who brings a complaint under the WTO Standards of Conduct shall not be subject to any form of retaliation, or threat of retaliation, either during or after the complaints process. If retaliation should occur, it will be subject to disciplinary action (AM N° 941, para 5).

• All staff bear responsibility for the maintenance of a harmonious working environment; this implies that, in accordance with the standards of conduct of the international civil service and the Staff Regulations and Staff Rules, they shall conduct themselves in a way which will ensure that the workplace is free of intimidation, hostility or offence and, in this context, of any form of harassment, and in particular sexual harassment. Managers should make this clear: (a) by their example; (b) by clearly communicating this policy to all their staff; (c) by enhancing a positive working environment in which harassment, and particularly sexual harassment, does not occur; and (d) by ensuring prompt attention to the adherence to the policy (WTO StReg ANNEX A para 17).

.

What to do when one is mobbed:• Document extensively the behavior which you believe to be

mobbing (notes for the record, e-mails, personal chronology, written statements from witness-staff members, as contemporaneously as possible)– This is very important; mobbing/harassment cases are

often very difficult to prove, and most times rely on the word of the victim vs. the word of the harasser.

– The more documentation/proof one has of the mobbing, the stronger the case

• VERY IMPORTANT!!—keep copies of all of the above in secure place away from your office

Mobbing Defense (continued)• Ask the Staff Council (SC) to intervene (the sooner the better)

• Ask the Ombudsperson/Mediator to intervene (the sooner the better)—see WTO Admin Memo N° 941 for mediation process

• If the SC and/or Ombudsperson cannot stop the mobbing, send a formal request to the WTO ADM requesting a disciplinary investigation into the conduct of the alleged harasser (keep SC informed in such an event)

• Applicable ILOAT jurisprudence makes it clear that an IO has a heightened duty to fully and immediately investigate any and all claims of harassment

Mobbing Defense (continued)

• Under Swiss law, “mobbing” is both a civil and criminal offense

• If the mobbing causes physical symptoms, it may rise to the level of a crime under Swiss law, immunity notwithstanding

• Mobbing a staff member is not part of the official functions of the WTO

• Swiss statutes of limitation are relatively short—act quickly

• Immunity of IO’s under national laws are slowly being reduced—see recent ECHR decision of SABEH EL LEIL v. FRANCE (Application no. 34869/05)—also found at www.int-lawyers.co

Mobbing Defense (continued)• If the mobbing causes you illness or stress for which

medical treatment is required, go to your own private doctor, not the WTO doctor!

• This is because the medical records of your treatment at WTO (your own medical records) which could be instrumental in proving a case of mobbing, under current (and Orwellian) rules of some I/O’s (including WHO), cannot be accessed by you by right--in direct contravention of accepted UN practice (even if a staff member needs such records for his external medical treatment, he or she presently has no right to access such records!!)

Mobbing Defense-Remedies (continued)

• Generally, an act of mobbing/harassment itself cannot be appealed to the WTO Joint Appeal Board (JAB)--only the failure of the Administration to do something about it (to take the allegation seriously and to conduct an investigation), or an adverse administrative decision that results from the harassment may be appealed

• “A staff member who brings a complaint under the WTO Standards of Conduct shall not be subject to any form of retaliation, or threat of retaliation, either during or after the complaints process. If retaliation should occur, it will be subject to disciplinary action”. WTO Admin Memo N°. 49 para 5.

Mobbing Defense (continued)• If Administration fails to investigate or to stop

the harassment or to discipline the harasser, an administrative appeal to the JAB may lie--see ILOAT cases Mussnig v. WHO and Eben-Moussa v. WHO

• An international organisation must take the allegations seriously so that the staff member, as in a case of sexual harassment, is not victimized a second time

Conclusions•Do not let a « mobbing/psychological harassment » situation fester—get help, from the SC, the staff counsellor, the ombudsperson, the mediator, or demand intervention from the Administration•Supervisors bear a special responsibility in spotting and defusing potential mobbing conflicts•Mobbing often occurs as a result of poor personnel management•Mobbing can have a pervasive and detrimental effect, no just on the victim, but the also the staff at large—it harms the organisation as much as the individual victims

Help is Available• The Geneva Red Cross, Department for the

Promotion of Health (9, route d’Acacias, 1211 Geneva 4, tel 022 342 4050) has a counselling service available for those suffering from mobbing, and can put one in touch with psychiatrists/therapists specializing in the treatment of mobbing victims

End of Presentation—Thank you for your attention!

• Q& A—please keep questions general.

• Suggestions/comments? Send to flaherty@int-lawyers.co