Latest ILOAT judgments :

More Mush from the Wimps

In its latest session announcing judgments in some 45 cases (held on 3 February 2003), the ILO Administrative Tribunal reverted to the regrettable form which has made it the recent target of wide-spread criticism (see UN Special, N°. 614, January 2003, “The Best of the Bunch Flunks”, at
http ://www.unspecial.org/uns614/U NS_614_T18.html ).

Continuing the brazen violation of its own statutes, not to mention the mini- mum standards of due process guaranteed by most human rights conventions as a matter of course, the Tribunal once again refused to hold oral hearings or arguments in any of the 45 cases its decided despite the express requests from a number of complainants that it honor their right to an open and public hearing of their complaints. This incredible refusal has persisted unabated since at least 1990, and does not seem likely to change anytime soon.

The rate of success enjoyed by staff complainants also continued to cast doubt on the fairness and neutrality of the Tribunal process. In the February 2003 session, a mere 24% of complainants were awarded some measure of the damages they had sought from their employer-organisations (few complainants if any are ever awarded all the redress they request from the Tribunal). Compared to the 60-65% success rate of claimants before the European Court of Human Rights, this pitifully low rate makes a mockery of the entire appeal process, and explains in great part why international organizations generally oppose reform of the ILOAT Statute (why change a thing when such organizations, who alone pay the cushy salaries of the ILOAT judges, win close to three-quarters of their cases!), and even more importantly, why such organizations are generally loath to settle a case in advance of litigation.

In real world national court systems, where claimants have both a higher rate of success and where judgments awarded are more significant, defendants have a far greater incentive to set- tle an employment dispute before the matter proceeds to judgment as both the nature of the outcome as well as the potential damage award are not fore- gone conclusions (the theory being that its better to settle a difficult case for an amount that both sides can live with rather than risk the return of a verdict by a court that bankrupts the defendant). Such real-world theory is not operative before the ILOAT—even if an organization loses one of those rare one in four cases, it is secure in the knowledge that the Tribunal is unlikely to make a damage award that will be at all painful to an international organization, and will certainly not be so significant that it causes the organization to change the wayward behavior that gave rise to the appeal in the first place.

The only bright light of the February 2003 session was the apparent acknowledgement by the Tribunal of one of the numerous criticisms it has endured—its failure to adhere to or even reference its own jurisprudence in many of its recent decisions. At both the public announcement session and noticeably in its writ- ten judgments, the Tribunal appears to have made a concerted effort to cite its prior jurisprudence as the grounds for its decisions. Unfortunately, as long as it continues to ignore contrary judgments cited by complainants in their pleadings, this welcomed judicial diligence is nothing more than meaningless window dressing.

More distressingly, it appears that the Tribunal is becoming more and more inclined to find complaints irreceivable on technical or procedural grounds rather than deciding the case on its merits. A number of seemingly strong and valid cases (i.e., the defendant was likely to lose) met this ignominious fate during the last session.

The majority of the most recent judgments offer little solace to potential claimants to the ILOAT; success seems more to depend on the logic of craps rather than that of truth, reason and justice. What follows is a brief survey of some of the more absurd offerings of the Tribunal in its latest session.

In a case (Judgment N°. 2193, Mr. R.A.-O. v UNESCO) which was notable for the fact that it was decided by 5 judges (most cases are decided by three), and its two blistering dissents (which exhibited more legal reasoning and logic than perhaps were found in the 44 other judgments—one wishes all ILOAT judgments in chief were as learned and lucid), the Tribunal decided that despite the provision’s of UNESCO’s staff rules that it follow the French national law except where the organization has passed contrary regulations “in order to allow it to carry out its work”, the same-sex partner of a UNESCO staff member with whom the staff member had entered a legally-recognized civil union under French law was not entitled to “spousal” benefits under UNESCO rules. This decision, with its obviously strained and twisted reasoning, apparently employed solely to reach a desired end result, and the accompanying dissents, yet again demonstrate just how archaic and out of touch the ILOAT actually is. It also makes one wonder whether the case had originally been assigned to the two dissenting judges and one other, which would have resulted in the complainant winning; instead, without explanation, it was mysteriously decided by five judges. Happenstance, cynical manipulation, or just blatant homophobia?

In another case (Judgment N°. 2190), Mr. F.Z. v. WHO) where the Administration had refused to investigate an auto accident during duty travel which resulted in permanent debilitating injury to the staff member (as well as the deaths of two of his colleagues, primarily due to the fact that the WHO vehicle only provided seatbelts for the driver!), and where the WHO for no good reason took more than four years to organize a medical board to determine the compensation due to the complainant for his permanent service related injury, the Tribunal, while agreeing that it was egregious not to investigate an accident of such devastation to its staff, brushed off the four year delay of the medical board, and awarded the staff member a trifling USD 5000 for his suffering. Such an amount no longer qualifies as “nuisance value” in frivolous suits brought in some jurisdictions such as the US—the amount the defendant is willing to pay to settle a case prior to judgment simply to end the litigation and avoid the cost and expense that a long, drawn out claim, no matter how valueless, might cost the defendant during that time. Sadly, the complainant’s claim in this case was far from frivolous, and his service related injuries are life-long, causing him daily pain; the Tribunal, however, by the amount of its award, seemed to think it indeed nothing but a nuisance.

In Judgment N°. 2200 (Ms. M.P. v. ITU), like Judgment 2190 mentioned immediately above, the Tribunal demonstrated that international civil servants injured on duty should beware. Fundamental rights of workers injured while on duty in national jurisdictions do not apparently apply under the ILOAT system—until a staff member proves that an injury is “service-related” (but only by using the Byzantine internal systems employed and controlled by the Defendant organizations, with no adequate avenues of recourse), an organization is free to obscenely benefit from its own malfeasance in causing injury to its staff member by deduct- ing home and annual leave from the staff member when statutory sick leave has expired.

Finally, in the ultimate show of arrogance towards complainants, for the first time in its 50-plus year history (nearly 75 years when one considers the history of the ILOAT’s predecessor, the League of Nations Administrative Tribunal),

the Tribunal awarded damages against a complainant on the basis of the defendant organisation’s counterclaim, alleging the complaint was vexatious! In Judgment 2211 (Ms J.
M.-E. v. EPO), the Tribunal fined the complainant 100 Euros, but indicated that this amount was nominal because it was the first time the Tribunal had taken such an unprecedented step, but that it could be more serious in the future.

So there you have it—not only will international civil servants continue to be forced to litigate their employment disputes before a Tribunal that flouts its own Statute and the minimum due process standards of customary international law, that is administered and funded by the defendants that appear before it, and that is staffed by contract judges whose short renewable contracts on generous remuneration terms which on their face give rise to the appearance of gross conflict of interest, but after the last judgment session, complainants must now worry that they will be unreasonably fined by the very same Tribunal should it in its infinite wisdom deem a complaint vexatious!

The above analysis has been provided thanks to Mr Edward Patrick Flaherty (Schwab, Flaherty & Associés) and counsel to the WHO Staff Association.