ILOAT: Less mush, please

André Heitz, WIPO

Twice a year, UN Special provides a useful and refreshing overview of the judgements handed down by the Administrative Tribunal of the International Labour Organi- zation (ILOAT). Let us give unto Caesar: this is because ILOAT hands down its judgements in an orderly manner, publishes them and maintains an excellent database: http://www.ilo.org/public/english/tribunal all this unlike the Administrative Tribunal of the United Nations. Ironically, the latter escape the philippics thanks to its appalling record in terms of logistics and functioning!

“Philippics” is an understatement. In the May issue of UN Special (Latest ILOAT Judgments: less Mush from ILOAT; More from Organisations), the reference to Stalin’s show-trials or to the less-known Court of Star Chamber – as a preferable substitute to the current dispute resolution system – went right over the top. In any event, it does not contribute to the debate.

Elementary fairness requires that we acknowledge that justice is a human endeavour and that judges – like complainants, defendants and their counsels – err. They are also under influence, and this starts with the fact that they do not live in an ivory tower. Please consider: how would the Outreau paedophilia case have been handled without a Dutroux case, in neighbouring Belgium, in the background? Or, for those whose references are across the Atlantic: how could eight Supreme Court judges find, in the Guantanamo decisions of 28 June 2004, that Congress had given authority to President Bush to take Yaser Hamdi into custody without charges or trial, with the ninth dissenting?

And this is just the final word in a long series of backs and forths in the Federal District Court, the Fourth Circuit Court of Appeals, etc. The same observation “kills” the argument of the higher (60-65%) success rate of claimants before the European Court of Human Rights: that success rate, which is partly attributable to the weeding process along the judicial chain, also points to the failures in the national instances, particularly in the supreme court.

I will not defend ILOAT’s record here, and certainly not by reference to the illnesses plaguing other courts of law. I have my own, indisputable, example of miscarriage of justice: judgements 1603 (the defendant was FAO), 1604 and 1605 (WIPO and UPOV) had to do with the correction of an error made by the ICSC in the post adjustment methodology, which complainants wanted to be retroactive, and not just prospective, as from 1 November 1995, as decided by the ICSC. The cases, based upon the very same facts, were rejected at the same Tribunal session, through sequentially successive judgements, by the same panel of judges. The flaw lies in the grounds: in No. 1603, the judges found that “there is no faultless method to be found here” and in Nos. 1604 and 1605, that “it is common ground that the method was technically flawed in that, as the Commission itself acknowledged in May 1993, it resulted in the ‘double-counting’.”

There are grounds to be – seriously – concerned. To take a recent example, judgement No. 2300 is puzzling and may well stress some complainants when deter- mining the right time to initiate proceedings. But the concerns must be addressed in a proper way. Diatribes won’t help; case comments will.

There is, moreover, a need to call for respect and caution. In older times, UN Special had an excellent column from Peter Ozorio on the theme “Won a case and lost a job”.^* Yet, staff representative bodies were globally satisfied with ILOAT’s record (unlike some executive heads, such as Federico Mayor, who attempted to create his in-house tribunal). In the ‘80s, we – allow me to speak as a veteran of staff representation – staged a massive “legal defense strategy” under the auspices of FICSA. Whilst the cases were for most lost, we found that we won important principles which, in turn, enabled us to halt the degradation of our terms and conditions of employment, particularly with respect to salaries and pensions.

Things have changed in recent times, particularly on the initiative of a disgruntled complainant who subsequently discovered his belated vocation as a Union leader. This led to an extravagant compendium of requests for amendment of the Tribunal’s Statute, of which most succumbed to a cursory analysis and one – only – survived a more detailed (and democratic) discussion involving, not just the ILO, but all “clients” of the Tribunal: the proposal that staff associations/unions should be granted direct access to the Tribunal in certain cases. The proposal is still on the table.

The tone vis-à-vis the Tribunal has changed, however, and not for the better. Jean Michel Jakobowicz wrote: “What is really outrageous is this slanderous campaign orchestrated in some political quarters” in the editorial of the May issue of UN Special, in relation to the alleged bribery in the Oil-for- Food programme. Delete the word “political” – you may have second thoughts about this – and you have it for the criticism of the Tribunal.

Grievances, whose potential consequences have not been fully considered are still floating around. One of these is the constant call for public hearings and the call on witnesses.

Frankly, and speaking with the experience of a good dozen cases brought before the Tribunals (including on very complex issues of salaries), staff representatives ought to think it over twice. The same holds true for the second degree of jurisdiction.

Some introspection is also in order. The Mr. D.A.D v. WIPO case (judgement No.
2288), amply described – with a sneaky final remark – in the May issue of UN Special, offers a perfect illustration. Yes, WIPO failed to abide by its own disciplinary procedures. Those procedures involve a four-head committee on which the staff is represented by two persons of the Staff Association’s choosing. Where have these persons been? How could they accept a procedure that did not protect the staff member’s due process right? How could they sign a “report” (the quotation marks are from the Tribunal’s judgement) six months after the event, in actual fact after the case had already gone through the appeal process and was even before the Tribunal?

And what should we conclude from: “The defendant adds that it even consulted the president of the Staff Council, which is clearly of no avail here” (consideration 5, end)?

On this occasion, the Tribunal has been a remedy for the staff member. Agreed, he won his case and lost his job, but the Tribunal found that his “claim for reinstatement … in view of all the circumstances of the case … would appear particularly inappropriate”; it even felt the need to qualify the circumstances by adding: “including events that occurred after the impugned decision”. From a purist’s perspective, it thus went out of its way and preempted the new decision to be taken by the Director General on the basis of a proper procedure… This was legally bad but objectively, for those who have a grasp of the case, wise.

On this occasion too, the Tribunal has been much more favourable to the complainant by adjudicating on procedural grounds – something that is strongly resented by the critics of the Tribunal – rather than the merits of the case. My guess is that, on the merits, he would have won the equivalent of a few months’ salary. “Everything is relative”, as Einstein did not say.

But let us come back to the introspection. A sober analysis of the system of administration of justice shows that much more needs to be done at the internal level. That requires qualities – including a sense of citizenship – that are superfluous for Tribunal (and Organisation) bashing.

* “This is because the Tribunal must award compensation for the injury caused to a complainant when the rescinding of the decision impugned (e.g. the non-renewal of a contract) or the performance of the obligation relied upon is “not possible or advisable”. UNAT has to offer the option of compensation in lieu of performance, particularly rein- statement, in all cases. To my knowledge, the Secretary General of the UN. has accepted to reinstate staff members only once in the whole history of the UN.