A glimmer of hope at the ILOAT?

When the President of the ILO Administrative Tribunal (ILOAT) brought the Tr i b u n a l ’s public session to a close in mid July of this year, after having announced the judgments from its latest session, many complainants in attendance let out a collective sigh of relief. Unlike recent judgment sessions where the percentage of cases won by staff members dipped below 20% (in line with the Tr i b u n a l ’s average over the past ten years of denying approximately 73% of cases brought by staff), the cases were split nearly fifty-fifty between staff members and administrations. Not nearly as high as the European Court of Human Rights were more than 60% of claims brought against member states by aggrieved citizens usually succeed, but still respectable.

Of course, it will take a number of sessions with similar results before international civil servants can start to believe that the ILOAT has rediscovered its true roots—as the successor to the League of Nations Administrative Tribunal, the ILOAT was intended to protect the independence and security of staff members from the irregular and improper actions of administrations, not to act as a shield of management against the consequences of its own illegal or stupid decisions. In recent years however, its seems that the Tribunal cared less about the survival and well-being of the international civil service, and more about keeping the administrations which pay the costs of the Tribunal happy and inclined to continue subscribing to the jurisdiction of the ILOAT.

The results of the Tribunal’s recent 93rd session, while encouraging for staff overall, still evidence a number of trends which continue to call into question the very legitimacy of the ILOAT at a time when even the once mighty protections of sovereign immunity are being steadily diminished.

In keeping with an absolutely indefensible practice under any basic standard of justice or human rights, a practice which has continued for more than ten years, the Tribunal yet again failed to hold one single hearing or oral argument despite the express request from a number of complainants. Article 6 of the European Convention on Human Rights requires that member states provide its citizens with fair and public hearings in a court of law; why is the ILOAT exempt from such a fundamental requirement?

The Tribunal in its latest session, despite the welcome improvement in results for staff claimants overall, continued a recent trend in which it appeared to be particularly disposed to favor the administration of its biggest utilisers, the World Health Organisation (WHO)—over the past ten years, WHO has accounted for approximately 15% of the Tribunal’s caseload, outdone only by the European Patent Office (taking approximately 19% of the caseload). Out of six cases brought against WHO in the last session, the staff complainants succeeded in only one case, and even then, it doesn’t appear the effort was worth the return (see Judgment #2131)—the Tribunal awarded the complainant a total of CHF 3000 as a result of a seven (7) year delay in processing her reclassification request. Such an amount could have been paid out of the interest the organization earned on the money it didn’t pay her while it delayed her reclassification request, with change left over for an Executive Board junket!

In two particularly egregious decisions, the Tribunal continued to refuse to find for WHO staff members in collective actions no matter how valid their claims. In one, Judgment #2142, the complainants demonstrated that the WHO Administration had implemented a global mutual agreed separation (MAS) exercise irregularly, granting a number of staff members a MAS who did not meet the organisation’s stated requirements, while arbitrarily denying the complainants who did meet such requirements the MAS on the sole basis that such denial “was in the best interests of the organization”.

In the other, Judgment #2129, some 78 general service staff from WHO’s Regional Office for Africa who were transferred to Harare after their headquarters in Brazzaville was overrun during a civil war, and who were maintained on travel status for a number of years (as their transfer to Harare was indeed only temporary), complained about the arbitrary reduction in their travel per diem. Once again, the Tribunal appeared unwilling to risk finding for the staff as such a judgment could have had a devastating financial effect on WHO (such as was the case in 1997, when the Tribunal found against the WHO in the so- called Global Programme on Aids cases [Judgment #1624, et seq.]—judgments which were estimated by some to have ultimately cost the WHO USD 15-25 million to implement).

In another interesting case, against the International Telecommunications Union (ITU), the Tribunal’s decision in Judgment #2126 demonstrated both how little incentive international organizations have to settle cases with staff prior to going to the Tribunal (particularly as the administrations know that they stand to win three- quarters of the cases), and just how stupid international organizations can be. In that case, the staff member sought reimbursement from the ITU of sums he had been obligated to pay for his child’s school lunches and transportation, a sum of approximately USD 500 a year, which the ITU had in fact already reimbursed the staff member for in a previous year.

Instead of paying the USD 500 for the years the child was in school (which the ITU was likely required to do despite the badly drafted regulation it was relying on), it refused and forced the staff member to first appeal the decision to the ITU internal appeals board and then the ILOAT. The ILOAT found that the ITU was obligated to pay the cost of the child’s school lunches and transportation (approximately USD 500), plus another CHF 5000 in moral damages to the staff member and CHF 3000 for costs, plus two years of interest at 8% per annum on the amounts awarded! Let me see— it saved itself USD 1500 for 3 years (and had its lawyers and other staff members lose time and money trying to defend the indefensible), but ended up paying more than CHF 10,000 to the staff member for a claim that amounted to USD 500 a year—what’s wrong with this picture?

As the above shows, there is indeed some hope for complainants seeking redress against their employers before the ILOAT, but most should not start breaking out the champagne just yet!

The foregoing analysis was provided by Edward Patrick Flaherty, (Schwab, Flaherty and Associates)Counsel to the WHO Staff Association.

N.B. to access full text of ILOAT decisions, go to ILO main site, www.ilo.org and search Triblex. (Triblex database introduction). Instructions are given on how to use the database.