Latest ILOAT judgments:

Less Mush from ILOAT; More from Organisations

In its latest session announcing judgments in some 53 cases (held on 4 February 2004), the ILO Administrative Tribunal appears perhaps to have seen the light, and may finally have stepped back from some (but not all) of its past practices that has made it the target of wide-spread criticism (see UN Special, N°. 614, January 2003, “The Best of the Bunch Flunks”, at: http://www.unspecial.org/uns614/UNS_6 14_T18.html).

While the Tribunal continued its untenable violation of its own statutes, not to mention the minimum standards of due process guaranteed by most human rights conventions as a matter of course, in refusing to hold oral hearings or arguments in any of the 53 cases its decided, it appears that at least the Tribunal has acknowledged that this practice is not sustainable, at least in one case. For the first time, the Tribunal, in Judgment N° 2299 at consideration 6, instead of rotely reciting its own statute pertaining to oral hearings as it typically did in the past, actually gave an explanation as to why hearings were not appropriate in the present case. Of course, this only happened in one of the 53 cases decided (and even then, the requested hearing was denied), but it is indeed progress no matter how incremental. Perhaps the Tribunal might even hold an open public hearing this decade!

The rate of success enjoyed by staff complainants in this session also seems to reflect a shift in the Tribunal’s attitudes (maybe). In the February 2004 session, more than 40% 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 is still an inexplicably low success rate, but it is substantially better than the average rate of success over the past 10-15 years of 27%! Such an increase is good for all participants in the ILOAT process—when international organizations start to realize that they will no longer automatically enjoy an average success rate of some 75%, the incentive for the organizations to settle a staff member’s claim early in the process increases, and could well result in fewer claims to internal appeal boards and the Tribunal itself (the theory being that it is better to settle a difficult case for an amount or other solution that both sides can live with rather than risk the return of a verdict by a court that bankrupts the defendant), saving both the claimants and their employers time and money.

The majority of the most recent judgements offer a little more solace to potential claimants to the ILOAT than in previous sessions. What follows is a brief survey of some of the more interesting offerings of the Tribunal in its latest session.

In a case (Judgment N°. 2288, Mr. D.A.D. v WIPO) involving summary dismissal for alleged serious misconduct, the Tribunal broke with its recent tradition of ignoring serious procedural breaches when considering severe disciplinary measures inflicted by an international organization, and proceeded to set aside the dismissal on the grounds that the staff member’s due process rights had been violated by WIPO. In this case, the staff member was accused of various and sundry indiscretions including sending an offensive e-mail to another staff member . The Tribunal found that WIPO in its rush to terminate the staff member had failed to abide by its own clear disciplinary procedures which required the empanelment and consultation of a Joint Advisory Committee prior to undertaking a disciplinary sanctions. As a result, the Tribunal quashed the summary dismissal, ordered WIPO to pay the staff member the salary and other benefits he would have earned had he not been summarily dismissed (which at present count, amounts to some twenty months of back salary at a senior professional grade, and until such time as another valid disciplinary procedure is completed), and instructed WIPO to conduct another disciplinary procedure which protected the staff member’s due process rights. The judgment did not deal with the substance of the staff member’s numerous other com- plaints, which no doubt will end up back before the ILOAT in the event WIPO again moves to terminate the employment of the staff member (including payment of the balance of the four and one half years left on his contract). This judgment will most certainly leave a bad taste in the mouths of some pre- carious WIPO staff who were assured by the WIPO DG himself a few days after the judgment’s issuance, as they sipped champagne and nibbled on canapés in the grand foyer of WIPO, that rumours of the organization’s financial problems were unfounded.

In a series of other cases, the ILO (the Office, not the Tribunal) found itself in the unusual position of having some five cases against it being decided by the Tribunal (Judgments N°.’s 2285, 2287, 2296, 2301, and 2307); most notably, the ILO lost four out of the five! The increase in the number of cases and the adverse results for the Office most certainly resulted from the application of the Collective Agreements on Grievance Procedures negotiated between the Office and the ILO Staff Union in 1999-2001. Indeed, these cases were the first that had been considered by the new internal appeal board set up by the collective agreements (called the Joint Panel, where an external and independent lawyer sat as chair of the panel, and where staff members were guaranteed a public hearing into their claims, and where the ILO was often forced to turn over to the complaining staff member documents and other evidence which in the past it would have simply refused to disclosed on the specious and misplaced assertion of “confidentiality”), as well as the Office of the ILO Ombudsperson (which was the only truly independent and neutral ombudsperson in the UN common system). Sadly, perhaps as a result of the foregoing losses, the ILO management has moved recently to completely vitiate the protective provisions of the foregoing collective agreements (by turning the Office of the Ombudsperson into a “mediator” [read a powerless extension of the Administration] and removing its wide-ranging investigatory and document-discovery powers, by abolishing the Joint Panel and its procedures for dealing with harassment-related grievances [no there’s one way to get rid of the mobbing/harassment problem in international organizations], and by preventing staff members from being represented by external legal counsel of their own choosing at the internal proceedings [even the UN itself recently recognized the untenable nature of this provision in its own staff rules, allowing staff members to retain qualified external counsel to represent them before the JAB or JDC as of 1 January 2003]), apparently with the acquiescence of the current Staff Union Committee senior officers .

In another case (Judgment N°. 2314), (Mr. P.W. v. UNESCO), the Tribunal finally removed one of the specious defenses often encountered by staff who seek compensation when they are temporarily assigned to carry out the duties of a higher-graded post. In the past, organizations argued that if a higher-graded post is abolished and the tasks and duties assigned to another staff member, that staff member would have no right to a special post allowance. In this judgment, the Tribunal made clear that even if the higher- graded post is abolished, the staff member to whom the duties of the abolished post were assigned on a temporary basis had a right to an SPA, and further, that the principle of equal pay or equal work would not be defeated by the fact that a staff member who assumed the duties of a higher-graded post had the right at any time to seek reclassification (which in many cases case be intention- ally delayed by the organizations for numerous months if not years).

In Judgment N°. 2300 (Ms. L.C.T. v. Interpol), the Tribunal disappointingly reinforced its apparent preference to dismiss cases on technical and procedural grounds rather than on the merits by finding that a staff member’s claim was out of time (the staff member failed to appeal against a general decision communicated to her by a staff instruction concerning working hours, and only appealed when her actual work hours were communicated to her).

Finally, the Tribunal, in Judgment N°. 2293 (Ms. R.M. v. OPCW), enlightened us all with the following dicta, at considerations 12 and 13, setting out the abuse a staff member must endure from incompetent supervisors before such behavior becomes actionable:

“12. Although to act in bad faith is always to mismanage, the reverse is not the case and honest mistakes or even sheer stupidity will not, without more, be enough. Bad faith requires an element of malice, ill will, improper motive, fraud or similar dishonest purpose. There is absolutely nothing of that here.

13. The complainant has no doubt been the victim of a certain degree of confusion, indecision and perhaps even incompetence on the part of her superiors at a time when the Organisation itself was going through a period of serious ructions and dramatic change at the top. She, herself, however, maintained her grade and salary and continued, throughout the period in question, to receive high and complimentary assess- ments from her supervisors on the quality of her work.

So there you have it once again. On balance, the results of the latest Tribunal ses- sion are encouraging, at least as to the attitudes of the Tribunal itself; unfortunately, the same cannot be said for the management of most international organizations.

The show-trials of Stalin, and even the Star Chamber , might still be preferable to the cur- rent dispute resolution system to which inter- national civil servants are involuntarily subjected, depriving them of minimal standards of due process to which they would be entitled under most national court systems.

¹⁾ Interestingly, the Swiss Federal Tribunal in June 2003 found that a private Swiss company that had summarily dismissed an employee for sending a salacious e-mail to a third party had acted excessively, and awarded the employee CHF 26,000.

²⁾ The more such cases I learn of, the more I understand Lenin’s comment about “useful idiots” being necessary for the proliferation of his ideology.

³⁾ Between 1628 and 1640, the Court of Star Chamber became a substitute for English Parliament and in the 1630s banned all « news books. »
King Charles I made extensive use of the Court of Star Chamber to persecute dissenters, including Puritans who fled to New England. Star Chamber proceedings were used to gain not only arbitrary convictions, but also arbitrary acquittals for guilty parties whom the crown wished to protect. The abuses of the Star Chamber by Charles I were one of the rallying cries for those who eventually executed him in 1649. Originally open to the public, the Court of Star Chamber sessions came both to be held in secret and to represent the misuse and abuse of power by the king and his circle. “Its procedure was not according to the common law.” There were no witnesses (it could proceed on rumor alone), no juries, no right of appeal, and punishment was swift, flexible, and severe to any enemy of the crown. In sum, because it “characteristically departed from common-law traditions... and... specialized in trying ‘political’offenses, the Star Chamber has for centuries symbolized the disregard of basic individual rights.”
Faretta v. California, 422 U.S. 806, 821 (1975).