LEGAL TIPS
FREEDOM OF ASSOCIATION
HARASSMENT AND FILING DEADLINES
Freedom of Association: Staff Reps
Right to Membership on Boards
Staff representatives that serve on board(s)
of the organization (appointment, promotion,
appeals, etc.) have a right to challenge
decisions by the administration affecting that
service. In Judgment No. 2685 (ITU), the Secretary-General removed a staff representative serving on the Appointment and Promotions
Board because of the alleged breach
of the Board’s code of conduct, including
manipulating Board members. The staff representative
had expressed disagreement with
the working of the Board and left a meeting.
The staff member challenged the decision to
remove her from the Board on the grounds
that it breached her right to freedom of association
and expression. The internal appeals
board agreed and also found that the decision
was a hidden disciplinary sanction and
recommended payment of moral damages.
The Secretary-General rejected the appeal
in part on the grounds that the staff member
had no personal right to be on the Board.
The Tribunal found that the decision to remove the staff representative was, in addition to a breach of her right to freedom of association and expression, a misuse of authority – but not a disciplinary sanction. With respect to freedom of expression, the Secretary-General’s decision substituted the staff representative’s opinion and “method of defending staff interests” with his own. With respect to freedom of association, the Secretary-General was not free to remove a staff representative selected according to the staff regulations and rules without fi rst consulting with the staff association and seeking agreement on the procedure for such action (the Administration should hold consultations with the Staff Council and seek an agreement prior to removing a staff representative from the Board). The Tribunal awarded her 20,000 Swiss francs. In making this award, the Tribunal considered the conduct of the staff representative: it criticized her for walking out on a Board meeting since she had a duty to attend and participate fully in the meetings regardless of disagreements.
Harassment and Filing Deadlines
It is important to remind staff union/association
members that harassment-related grievances
usually must be reported within a
certain period of time. Failure to do so may
result in loss of the ability to claim redress.
While a staff member cannot expect the
kind of compensation awarded in national
courts (in 2006 a London banking institution
was held vicariously liable for a prolonged
campaign of bullying and harassment at
work suffered by one of its female employees,
who succeeded in winning damages of
just over 930,000 euros in compensation in
the UK legal system), the ILO Administrative
Tribunal awards anywhere from 10,000
to 75,000 euros for proven cases of harassment.
It should also be recalled that attention
to this problem has only recently (last
10-15 years) been seriously addressed by
the adoption of rules and policies against
harassment, and each successful case helps
to reduce the prevalence of harassment in
the workplace and adds to the body of law
on damages for harassment.
The starting point for analysis is of course the staff regulations and rules, and any written policies on resolution of harassment-related grievances. In the absence of any rules, there may be an implied deadline for making a complaint based on reasonableness. Most policies provide a deadline of anywhere between one and six months. In Judgment No. 2675 (ILO) the staff member lodged a complaint on 18 April 2005 about an “assignment” on 2 February 2004 to work from home because of a medical condition. The staff member felt isolated and belittled by the assignment, which she alleged was the result of prejudice. Having received no answer to her grievance, she lodged an internal appeal. The internal appeals board reached the merits and recommended dismissing the appeal. On further appeal, the Tribunal held that the grievance was time-barred and the internal appeals body made an error by considering the merits of the grievance. According to the applicable rules, a grievance had to be lodged within 6 months of the alleged misconduct, and since it was not lodged until over a year later, it was time-barred. This case offers valuable lessons about the importance of timely lodging grievances for harassment. If the staff member fails to lodge a complaint within the time provided in the rules, the possibility of obtaining relief will likely be lost. An important exception is available in cases where there is a pattern of harassment over a long period of time. As long as the last harassing conduct is reported timely, the staff member may cite earlier instances of harassing conduct even though the underlying adverse decisions could not be challenged.
1 The information and content are for general
information only and does not constitute
legal or other professional advice.
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