Scores victory

Edward Flaherty¹ & L. Belgharbi²

In a case which could have far-reaching implications for staff associations of all international organisations, a recent decision by the WHO Headquarters Board of Appeal brought by the former President of the WHO HQ Staff Association confirmed the right of a staff representative to bring an appeal in his representative capacity on behalf of staff association members on a matter of general interest to all staff.

The case, Belgharbi v. WHO (HBA Case N°. 486) concerned a selection competition that was held at WHO HQ for a director level post. For reasons irrelevant to the final outcome of the case, the post being advertised was a senior position in the WHO’s African Regional Office.

The Administration had advised the HQ Staff Association of the meeting of the selection committee a two and a half days before the scheduled date, even though in past practice it had always given the staff association at least two weeks to find a staff representative who would be able to attend the competition. When the Staff Association President was unable to find a staff representative of a suitable grade who was available on such short notice to attend the scheduled meeting, he requested the Administration to reschedule the competition so that a staff representative could attend.

Although the WHO manual and established practice requires that selection competitions always include formal staff association participation, the WHO Administration refused to reschedule the competition, and proceeded with the procedure without any staff representation. When the Staff Association President learned of this development, he requested the WHO Administration to reconvene the selection committee so that a staff representative could participate, such request was ultimately refused by the WHO³.

While a successful candidate was eventually selected by the DG pursuant to this flawed proceeding, none of the unsuccessful candidates were inclined to appeal the procedural irregularity that had occurred in the selection. The then Staff Association President nonetheless felt that such an occurrence would set a bad precedent, and which, if repeated by the WHO Administration, could result in a significant degradation of the collective staff rights recently negotiated by the Staff Association in the course of the revision of the WHO Manual sections on selection (i. e. , the right of a staff representative to participate in all staff selection competitions).

As a result, the Staff Association President, with the full backing of his SA Committee, requested the WHO DG to intervene and to reconduct the selection competition in accord with the WHO Manual and existing practice. Such request was refused, and the President initiated an appeal against the selection decision to the WHO Headquarters’ Board of Appeal in his capacity as an elected staff representative.

After nearly six months of vigorous objection by the WHO Administration, including a hearing before the HBA dedicated solely to the issue of receivability, over the standing of the Staff Association President to bring the appeal in his representative capacity, the HBA convened to hear the case and testimony of witnesses.

When the HBA finally issued its recommendation to the DG, it found that the former SA President indeed had standingin his representative capacity to bring an appeal against an organisation’s administrative decisions that affected the general interests of the staff at large.

In reaching its common sense conclusions, the HBA took note of ILOAT Judgment (In re Raths, #2, Judgment 1147, at consideration 4) in which the Tribunal stated:

“The European Patent Office [EPO] is right in that the Staff Committee, which does not even have personality in law, may not itself appeal. But its members may nevertheless rely on their position as such to ensure observance of the Regulations.

Indeed, that is why Article 34(2) [of the EPO Regulations] empowers them to enforce their rights. Were that not so the system of staff representation set up by the EPO would prove meaningless. The staff member has a direct interest in making the Organisation respect his rights because he derives them directly from his status as such. ”

In applying the above judgment to the case before it, the HBA expressly found that refusing to allow a WHO staff member, who was also elected as a staff representative in order to safeguard staff interests, to contest an administrative decision which was of general interest to all staff, would prevent staff representatives from fulfilling their function, and would hamper the functioning of the WHO Staff Committee. It also concluded that since selection committee proceedings at WHO were confidential, this meant that in certain circumstances only a staff representative would have sufficient information to decide whether or not grounds for an appeal existed. In fact, in the present case, during the HBA hearing, it was revealed through testimony offered on behalf of the WHO that there in fact had been a serious procedural irregularity in the selection process (the short-list of candidates had somehow been fixed prior to the first official meeting of the selection panel) which came to light only as a result of the appeal!

In typical fashion, the WHO DG refused to accept the Board’s finding that the appeal was receivable, relying on arguments that had been previously made before the Board and which the Board had already clearly rejected (in clear violation of Tribunal jurisprudence).

While the Appellant was confident that he would prevail on appeal to the ILOAT, he felt that he had accomplished what he had set out to do in filing the appeal, and had made his point. In addition, he felt gratified to save the WHO the nearly CHF 200,000 such an appeal would have cost the Organisation had he proceeded to the ILOAT.

1 WHO HQ staff association lawyer
2 President of WHO/HQ Staff Association 2000-2001, currently elected Staff Committee member.
3 It seems that the selection competition had been scheduled to coincide with a meeting at WHO HQ at which several of the AFRO Administration would be attending, and its postponement would require the rescheduling of the meeting in Harare at AFRO Regional HQ at some time later in the future, at significant expense to the WHO.