The following are from the ILOAT Spring 2022 Judgment Session

The Judgments may be accessed by Judgment # at: ILOAT Triblex Database

C v. EBML

 

COMPLAINANT CONTESTS DECISION TO SUMMARILY DISMISS HIM FOR SERIOUS MISCONDUCT

 

Complainant, an EBML employee accused of ‘serious misconduct’ during the course of his employment, seeks remuneration and other monetary damages from the Tribunal for the remainder of his contract since the date of termination. Though the complainant admitted to some misconduct, in the eyes of the Tribunal a fair hearing affording the complainant the opportunity to question witnesses’ accounts of events unfavorable to him did not occur. The Tribunal held, because the Director General dismissed him summarily for ‘serious misconduct’, without consulting with the JADB, rather than the heighten standard for summary dismissal of ‘particularly serious misconduct’, the complainant’s dismissal is set aside, and the complainant is awarded 15,000 euros material damages, 1,000 euros cost, with all other claims dismissed.

 

ILOAT Judgement No. 4497, 16 May 2022

 

H v. WIPO

 

COMPLAINANT CONTESTS THE DECISION TO DEMOTE HER FROM GRADE P4 TO GRADE P3 FOR A TWO-YEAR PERIOD

 

The Complainant, an employee of WIPO, stood accused of ‘disrespectful attitude and/or language when addressing colleagues’ after a meeting where her supervisor wrongfully asserted she failed to make any corrections to a document as previously directed. In response, the complainant’s supervisor demoted her for a period of five years, later reduced to two years on appeal. The complainant sought from the Tribunal a reduction of her disciplinary measure from a two-year demotion to a verbal warning and/or written reprimand. The Tribunal found: the complainant’s own allegations of misconduct against her supervisor were never properly investigated, the Director General erred in not considering the wrongful accusations of her supervisor that her draft remained uncorrected as a mitigating factor, and thus the immediate jump by her supervisor to the fourth harshest disciplinary measure out of five-tier system of discipline was to be set aside and remitted to WIPO in light of the Tribunal’s judgment, with material damages of reimbursement for salary and allowances, 8,000 Swiss francs costs for Tribunal proceedings, half of legal costs incurred during her appeal proceedings, and all other claims dismissed.

 

ILOAT Judgement No. 4504, 6 July 2022

 

 

V v. OPCW

 

COMPLAINANT CONTESTS THE DECISION TO REJECT HIS CLAIM FOR COMPENSATION FOR A SERVICE-INCURRED DISABAILITY

 

The Director General informed the complainant the decision by the ABCC is adopted by OPCW and complainant would not be receiving compensation for a service-incurred disability because the complainant’s condition is not indistinguishable from any pre-existing medical condition arising before the arbitration period in dispute. The Tribunal found ABCC erred in focusing too narrowly on when the complainant’s symptoms first manifested, rather than the specific time period of arbitration regarding the complainant’s work related to his illness; that during the time of arbitration, the complainant’s symptoms progressed from potentially recoverable to totally disabling. Thus, the Tribunal ruled the decision of the Director General to deny complainant’s service-incurred disability compensation is set aside, the OPCW shall take steps to ensure compensation plus 5 per cent interest per annum, pay 5,000 euros moral damages, and 8,000 euros costs.

 

ILOAT Judgment No. 4508, 6 July 2022

 

M v. ITU

 

COMPLAINANT SEEKS RESOTRATION OF HER ENTITLEMENTS TO HEALTHCARE AND HEALTH INSURANCE

 

The complainant is a former staff member, retired from the ITU in 1992, currently, at the time of consideration, 90 years old and living in a nursing home in extremely poor health and in complete dependance upon the care provided to her by the facility. The complainant challenges the significant reduction of her reimbursement of nursing home facility costs as a result of the ITU joining the UNSMIS, arguing it is a breach of her acquired rights and causing her serious financial difficulties. The Tribunal held, by implication of delay, the Secretary-General rejected her request for reconsideration after denial by the ITU. However, the complainant’s claim is irreceivable by the Tribunal because the complainant, according to facts undisputed by either side, failed to exhaust her remedy of lodging an appeal with the Chairman of the Appeal Board first. Therefore, the complainant’s claim is dismissed. The Tribunal further added, given the health and finances of the complainant, it was legitimate for the complainant to be unaware of such legal procedures, and the competent bodies of the ITU should take it upon themselves deal with the present case as soon as possible.

 

ILOAT Judgement No. 4517, 6 July 2022

 

 

A.-K v. WHO

 

COMPLAINANT CONTESTS WHO’S DECISION TO POSTPONE IMPLEMENTATION OF THE MANDATORY AGE OF SEPERATION ADOPTED BY THE UNITED NATIONS

 

The UN General Assembly decided to raise the age of mandatory separation for those recruited before 1 January 2014 to age 65 by 1 January 2018 ‘at the latest’. That decision was later amended to an effective date of 1 January 2019 and for those turning 60 or 62 in 2017 or 2018, if they wished to not separate, they must petition the Director-General to decided whether or not to ‘exceptionally extend’ their appointment, which the Director-General did not. Fifteen individual WHO employee complainants who would turn 62 in 2018 submitted requests for review of that decision, in so far as it extended the mandatory age of retirement set at 65 starting on 1 January 2019 instead of 1 January 2018. Among other damages, complainants jointly sought from the Tribunal reinstatement to their positions after forced retirement at the age of 62. The Tribunal held there was no legal commitment in existence requiring the WHO to maintain the age increase of mandatory separation starting at 1 January 2018. Further, legally enforceable criteria were not generated in the form of a binding legal promise made to the complainants by moving the date to 1 January 2019 because nowhere in the complainants’ analyses did they demonstrate they relied upon a promise or that reliance on such a promise caused them injury. The Tribunal dismissed all of complainant’s claims.

 

ILOAT Judgement No. 4527, 6 July 2022

 

 

J. (No. 2) v. WHO

 

COMPLAINANT CHALLENGES THE EFFECTIVE DATE OF TERMINATION OF HIS APPOINTMENT DEFERRED PREVIOUSLY DUE TO SICK LEAVE

 

The Tribunal resolved a narrow issue in this case as to the precise effective date of the complainant’s termination from employment while on sick leave after the abolishing of the complainant’s post. Absent any suitable position for complainant’s reassignment, complaint’s separation from the WHO would commence on 12 September 2017, according to an 8 June 2017 letter from the HRM Director. Other proceedings ran parallel to the specific complainant’s claim at issue. The Tribunal found in those lateral issues the complainant’s claim that his illness was service related is irreceivable because he has yet to exhaust internal means of redress. And the Tribunal previously ruled for the complainant that his reassignment process was flawed, resulting in his lost opportunity to secure another position within the WHO. However, in this discrete matter, the Tribunal dismissed the complainant’s claim because the complainant already received numerous extensions to his separation while on sick leave, and at the time the decision to separate complainant from employment occurred the complainant was not incapable of preforming his duties, per the Staff Physician.

 

ILOAT Judgement No. 4530, 6 July 2022

 

G v. PAHO

 

COMPLAINANT CHALLENGES HER DISMISSAL AS A RESULT OF DISCIPLINARY PROCEEDINGS

 

Charged with misconduct by her employer, the PAHO, complainant found herself terminated shortly thereafter. When she appealed her supervisor’s decision to the BOA, the BOA recommended that PAHO rescind the dismissal and instead impose a suspension without pay followed by reassignment. In response, the Director declared complainant was, regardless, unfit for international service and maintained complainant’s dismissal. The Tribunal held that had the complainant truly made life untenable for her coworkers over the past two years, by having an angry face and speaking in a loud voice frequently, then there surely would have been some kind of warning made to the complainant that such conduct could potentially lead to her dismissal. Yet there was no such warning. And therefore, the Tribunal found no such decision to dismiss should occur without the presence of a warning, so the complainant may have time to improve her conduct. Thus, complainant is entitled to have the decision to dismiss her from employment set aside, material damages of 45,000 United States dollars, and 5,000 United States dollars in costs.

 

ILOAT Judgement No. 4540, 6 July 2022

 

S v. ILO

 

COMPLAINANT DISPUTES THE DIRECTOR-GENERAL’S DECISION TO REJECT HER HARASSSMENT CLAIM

 

After being the target of harassment and retaliation by her supervisor, the complainant’s claims of misconduct were deemed ‘unsubstantiated’ by the investigator appointed to examine the matter. The Director-General informed the complainant no disciplinary proceedings against her supervisor would occur but offered her mediation by way of assistance in the fostering of a more constructive working relationship between her and her superior. The complainant came before the Tribunal asserting manifest errors occurred during the course of the investigation, making the decision by the Director-General unsound. The Tribunal found the complainant’s assertions accurate because the complainant suffered a lack of due process, principally, the investigator disregarded essential facts and excluded witnesses without any justification. Thus, the complainant is entitled to have the decision by the Director-General set aside and remitted so her grievance may be conducted by a new investigator in accordance with the applicable rules which she was not afforded during the initial inquiry. Complainant is also entitled to 3,000 Swiss francs in costs.

 

ILOAT Judgement No. 4549, 6 July 2022

 

B. (No. 15, H. and P. (L.) (No. 30) v. EPO

 

COMPLAINANTS CONTEST MODIFICATIONS MADE WITH RESPECT TO THE USE OF MASS EMAILS WITHIN THE OFFICE

 

In 2013, the President of the Office sent a Communiqué to staff entitled, “When enough is enough – the use of mass emails within Office”, banning emails to more than 50 recipients unless specific criteria enumerated in the Communiqué were met. The jointly complaining staff members asserted such a ban violated their rights as staff members of the Office to communicate and express themselves freely within the office; of consequence, they were entitled to have the Communiqué rescinded as well as an award for damages. In a split decision by the Office’s internal Appeals Committee, the majority found the Communiqué processed a legitimate and necessary motive because mass emails were ‘spiraling out of control’ and were frequently containing ‘aggressive’ content. The minority held the Communiqué deprived staff members of their fundamental right to communicate and associate. The President endorsed the majority opinion. The Tribunal ruled the Communiqué did, in fact, breach the fundamental right of staff members to freedom of speech because the Communiqué’s main concern was with the increasing frequency of personal and vindictive attacks. In other words, their content. Thus, the Office could use less restrictive means than the banning of mass emails by addressing already established protocols of conduct towards respective co-workers on a case-by-case basis depending on the individual emails in question. That is to say, the Office does have a right to curtail content of the emails sent but does not have the right to ban all future mass emails to more than 50 recipients without prior approval. Therefore, the Communiqué is set aside regarding that specific provision and collectively complaints are entitled to 900 euros costs.

 

ILOAT Judgement No. 4551, 6 July 2022

 

 

 

 

 

 

 

H. (No. 9), S. (No. 5), É. (No. 4), F. (No. 24) and G. (No. 7) v. EPO

 

COMPLAINANTS CHALLENGE THEIR REMUNERATION DEDUCTIONS FOR PARTICIPATING IN A STRIKE ALONG WITH THE LAWFULNESS ON WHICH THE DECISIONS WERE BASED

 

In June of 2013, amendments made to the ‘right to strike’ EPO Articles concerning unauthorized absences due to strike participation by staff members changed the remuneration deduction per day from 1/30th monthly remuneration to 1/20th monthly remuneration. After staff members participated in strike activities, rendering them absent from work, during various periods of time between March 2014 and April 2016, their pay was docked 1/20th per day in accordance with the new amendment. The Appeals Committee found the new deduction rate of 1/20th was not excessive or arbitrary, and was, overall, fair, over the complainants’ assertions the new rate violated their right to strike. In a previous case before the Tribunal, a sole complainant challenged the lawfulness of the 1/20th deduction successfully. After this judgment by the Tribunal, the EPO informed the other five complainants they would apply the outcome of the recent Tribunal judgment, awarding the remaining five the excess amounts deducted from their remuneration for strike participation, along with five-percent interest, and 800 euros costs individually. Notwithstanding these measures, the complainants did not withdraw their complaints seeking further moral damages before the Tribunal. The Tribunal held it found no evidence provided by the complainants that the new measures were a disguise for an attack on the right to strike, and that even if they were, the complaints failed to show they suffered any moral injury as a result. The Tribunal dismissed complainants.

 

ILOAT Judgment No. 4562, 6 July 2022