Staff representative (534, 535, 659,-666)
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Keywords: Staff representative
Total judgments found: 104
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Judgment 4897
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her appraisal report for 2018.
Consideration 3
Extract:
In this regard, in the first place, the complainant takes issue with the fact that the Appraisals Committee, established from 1 January 2015 by Article 110a of the Service Regulations, does not include a staff representative, unlike the Internal Appeals Committee which had until then been responsible for dealing with challenges to appraisal reports. However, the Tribunal has already held that this characteristic does not mean that the composition of the new body is inadequate (see Judgments 4795, consideration 7, 4637, consideration 11, and 4257, consideration 13). This plea will therefore be dismissed.
Reference(s)
ILOAT Judgment(s): 4257, 4637, 4795
Keywords:
advisory body; performance report; rating; staff representative;
Judgment 4806
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, acting in his capacity as staff representative at the material time, challenges the appointment of the Principal Director of Human Resources.
Judgment keywords
Keywords:
appointment; complaint dismissed; selection procedure; staff representative;
Judgment 4795
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his performance evaluation report for 2018.
Consideration 7
Extract:
[T]he Tribunal has already ruled, in relation to the objection procedure applicable to appraisals of other permanent employees of the Office, which shares these same features mutatis mutandis, that the fact that no staff representatives were included on the Appraisals Committee competent to review the appraisal reports of those other employees did not mean that the Committee’s composition was inadequate, and the fact that the Committee’s mandate was confined to determining whether such reports were arbitrary or discriminatory was legally admissible (see Judgments 4637, considerations 11 and 13, and 4257, consideration 13).
Reference(s)
ILOAT Judgment(s): 4257, 4637
Keywords:
advisory body; performance report; rating; staff representative;
Considerations 9-10
Extract:
As the Tribunal has repeatedly held in its case law, assessment of anemployee’s merits during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 4564, consideration 3, 4267, consideration 4, 3692, consideration 8, 3228, consideration 3, and 3062, consideration 3).
Among the various pleas entered by the complainant [...], there is one that is decisive for the outcome of this dispute, [...] since it relates to a material fact that was allegedly overlooked. This is the plea that the President of the Boards of Appeal refused to take account of the fact that the 50 per cent exemption from duties granted to the complainant as a full member of the CSC, pursuant to Article 3(2) of Circular No. 356 concerning the resources and facilities to be granted to the Staff Committee, was insufficient in the light of actual needs observed.
Reference(s)
ILOAT Judgment(s): 3062, 3228, 3692, 4267, 4564
Keywords:
discretion; judicial review; performance report; rating; staff representative;
Judgment 4626
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rules introduced with effect from 1 July 2013 governing the exercise of the right to strike at the European Patent Office.
Consideration 4
Extract:
[The complainant] seeks moral damages on behalf of all other staff. There is no legal basis for doing so, particularly having regard to the terms of Article VIII of the Tribunal’s Statute.
Keywords:
moral damages; staff representative;
Judgment 4605
135th Session, 2023
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the lawfulness and the results of the election for members of the new Staff Council.
Judgment keywords
Keywords:
claim moot; complaint dismissed; election; staff representative;
Judgment 4575
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaints concern compensation following the refusal to allow the Central Staff Committee to publish two documents on the EPO’s Intranet.
Judgment keywords
Keywords:
complaint dismissed; moral damages; plenary judgment; staff representative;
Consideration 7
Extract:
As to the receivability of the complainants’ request for an award of moral damages in the amount of one euro per staff member, the Tribunal notes that its jurisdiction ratione personae, pursuant to Article II of the Statute, is of an individual nature. The Tribunal can only order that the Organisation pay compensation for damages to the complainants (Article II, paragraph 5, of the Statute of the Tribunal), and not to third parties. For this reason, the Tribunal will not follow Judgment 2857, which underpins the complainants’ argument on this topic.
Reference(s)
ILOAT Judgment(s): 2857
Keywords:
cause of action; moral damages; receivability of the complaint; staff representative; third party;
Consideration 9
Extract:
According to a recent precedent, decided by the seven judges of the Tribunal, a complainant, acting as a staff representative, is not entitled to an award of moral damages (see Judgment 4550, consideration 20). By their very nature, violations of the rights of staff representatives cannot, under any circumstances, give rise to any personal right to financial compensation.
Depending on the circumstances of the case, a moral injury, due to its nature, can be restored not only by means of a sum of money. While the Tribunal considers that it is beyond its power to order a public apology (see Judgment 2762, consideration 31), it determines that the annulment of the impugned decision can be considered by itself a form of redress of moral injury (see Judgments 1745, consideration 12, and 1481, consideration 8). In a case similar to the present, concerning censorship in violation of freedom of communication, the Tribunal affirmed that the EPO, by requiring prior authorization for the dispatching of mass emails, breached the complainants’ freedom of communication. Nonetheless, in that case, the Tribunal, as to the redress for moral injury, held that the annulment of the impugned decision was in itself a sufficient remedy for any moral injury the complainants may have conceivably suffered (see Judgment 4551, consideration 16).
Similarly, in the present case, it must be held that the […] decision admitting the unlawfulness of the censorship related to the publication of two documents, together with the publicity given to this decision on the Organisation’s website, were already sufficient redress for any moral injury.
Reference(s)
ILOAT Judgment(s): 1481, 1745, 2762, 4550, 4551
Keywords:
moral damages; satisfaction; staff representative;
Considerations 11-12
Extract:
The Tribunal decides that, although there may have been some inconsistencies regarding this issue in its previous case law, the exclusion of the entitlement of staff representatives to personal financial compensation extends to moral damages resulting from excessive length in the internal appeal proceedings. […]
The complainants lodged their internal appeals only in their capacity as members of the Central Staff Committee. It follows that the injury for the excessive length of the internal appeal proceedings was suffered by the Central Staff Committee and the staff representation as a whole, not by the staff representatives individually.
Keywords:
delay in internal procedure; moral damages; staff representative;
Judgment 4566
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges a selection procedure for which he was a member of the Selection Board.
Judgment keywords
Keywords:
cause of action; complaint dismissed; locus standi; member of an internal body; selection board; selection procedure; staff representative;
Consideration 3
Extract:
[T]he complainant lacks locus standi in his capacity as a staff representative for the reasons given by the Tribunal in its case law (see Judgment 3642, considerations 8 to 14). Secondly, he lacks locus standi in his capacity as a member of the Selection Board. In Judgment 4317, consideration 4, the Tribunal relevantly stated as follows:
“[...] the Tribunal adopted Judgment 3557, in a summary procedure, where it found that it was clear that the complainant, who was likewise acting in his capacity as a member of a Selection Board, did not have standing to challenge the outcome of the selection procedure. The same reasoning must be applied in the present case as ‘[the complainant] does not specifically allege any non-observance of his terms of appointment as required by Article II, paragraph 5, of the Tribunal’s Statute’.
As a matter of general principle, a complainant must, in order to raise a cause of action, allege and demonstrate arguably that the impugned administrative decision caused injury to her or him or was liable to cause injury (see, for example, Judgments 3921, consideration 6, and 3168, consideration 9). In accordance with this case law, a member of a board within an international organization, acting in this capacity, may only raise with the Tribunal the defects that have affected her or his prerogatives as a member of the board as defined by the internal provisions (see above-mentioned Judgment 3921, consideration 9). In the present case, the complainant does not specifically allege any non-observance of his terms of appointment or of board-related internal provisions.”
Reference(s)
ILOAT Judgment(s): 3168, 3557, 3642, 3921, 4317
Keywords:
locus standi; member of an internal body; selection board; staff representative;
Judgment 4551
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants contest modifications made with respect to the use of mass emails within the Office.
Considerations 9-10
Extract:
[T]he Tribunal’s case law has long recognised that staff of international organisations have a general right to associate freely. There can be no doubt that freedom of association is a well-recognised and acknowledged universal right which all workers should enjoy. It is recognised as a right by the Tribunal as well as by a large number of international conventions and declarations (see, for example, the 1998 ILO Declaration on Fundamental Principles and Rights at Work, Article 2(a); the 1966 International Covenant on Civil and Political Rights, Article 22; the 1966 International Covenant on Economic, Social and Cultural Rights, Article 8), and by the Administrative Council of the EPO itself, which recognised the importance of human rights when formulating the rights and obligations of staff (see Judgment 4482, considerations 12 and 13). Article 30 of the Service Regulations, entitled “Freedom of association”, provides: “Permanent employees shall enjoy freedom of association; they may in particular be members of trade unions or staff associations of European civil servants”. The role of staff associations or unions is to represent the interests of members primarily in dealing with their employing organisation on issues concerning the staff. Staff associations or unions should be able to do so unhindered or uninfluenced by the Administration of the employing organisation. Were it otherwise, the role would be compromised (see Judgment 4482, consideration 8).
Freedom of association necessarily involves freedom of discussion and debate. In Judgment 274, under 22, the Tribunal stated that “this freedom when feelings run strong [...] can spill over into extravagant and even regrettable language”. Nonetheless, the Tribunal also acknowledged that freedom of discussion and debate is not absolute and that there may be cases in which an Administration can intervene if, for example, there is “gross abuse of the right to freedom of expression or lack of protection of the individual interests of persons affected by remarks that are ill-intentioned, defamatory or which concern their private lives” (see Judgments 2227, consideration 7, and 3106, consideration 8).
The Tribunal’s case law has it that a staff association enjoys broad freedom of speech and the right to take to task the Administration of the organisation whose employees it represents, but that like any other freedom such freedom has its bounds. Thus, any action that impairs the dignity of the international civil service, and likewise gross abuse of freedom of speech, are inadmissible. But the prevention of such abuse cannot give the Administration a power of prior censorship over the communication of written information produced by the groups and associations concerned (see Judgment 911 and Judgment 2227, consideration 7).
In Judgment 3156 the Tribunal held that, in specific cases, a prior authorisation for the dispatching of mass emails could be justified: “The freedom of speech and the freedom of communication [...] are not, however, unlimited. Not only is an organisation entitled to object to misuse of the means of distribution made available to its staff committee [...], but it also follows from the case law [...] that the right to freedom of speech does not encompass action that impairs the dignity of the international civil service, or gross abuse of this right and, in particular, damage to the individual interests of certain persons through allusions that are malicious, defamatory or which concern their private lives. [...] Since organisations must prevent such abuse of the right of free speech, the Tribunal’s case law does not absolutely prohibit the putting in place of a mechanism for the prior authorisation of messages circulated by bodies representing the staff. An organisation acts unlawfully only if the conditions for implementing this mechanism in practice lead to a breach of that right, for example by an unjustified refusal to circulate a particular message” (see Judgment 3156, considerations 15 and 16).
As observed earlier, the right to freely associate is a general right that enshrines more specific rights, which are necessary or useful in order to ensure that the right to freely associate is effective. It includes the rights to freedom of communication, information, and speech in all forms, including discussion and debate (see Judgment 3106, considerations 7 and 8). Such rights are vested not only in their authors (usually the staff representatives), but also in the recipients. The right of each staff member to freely associate also includes their right to freely receive communications and information, and their right to listen to speeches. In this perspective, every limitation to the right of staff representatives to send mass emails to the staff members, is also a limitation to the right of the staff members to receive mass emails.
Free communication, information, and speech also imply:
(i) the right to the confidentiality of communication, information, and speech; and
(ii) the right to freely choose the means by which the communications are sent, information is provided, and speeches are given.
An organisation is entitled to issue reasonable guidelines in order to govern the use of the office emails by staff members and staff representatives, and to establish authorised and non-authorised uses. Insofar as the criteria on the use of mass emails are underpinned by general interests, such as those listed in Communiqué No. 10 of 29 March 2006, they shall be considered lawful, as they ensure a reasonable balance between the interests of the organisation and the fundamental rights to free communication, information, and speech, vested in the staff members and their staff unions and representatives. This general balance should not allow a prior supervision or preventive censorship by the organisation on the content of the communications, information, and speech (see Judgment 2227, consideration 7). However, the Tribunal’s case law considers lawful a mechanism of prior authorisation under exceptional circumstances (see Judgment 3156, considerations 15 and 16 quoted in full in consideration 9 [...]).
Staff members and their representatives are not allowed an indiscriminate and unfettered exercise of their rights to freedom of communication, information, and speech. Their “freedom” must be consistent with the duties of the staff members towards the Organisation and towards fellow staff members. Freedom of communication, information, and speech is not freedom to insult or to offend (see Judgment 3106, considerations 7 and 8). The communication, information, and speech fall within the responsibility of their authors. Those that exceed the boundaries of freedom and fail to respect the duties of a staff member or result in insults or offences should be subject to disciplinary proceedings and sanctions.
Whether a communication, information, or speech violates the duty of the staff members can be established only on a case-by-case basis, and, normally, after the communication, information, and speech are divulged.
Reference(s)
ILOAT Judgment(s): 274, 911, 2227, 2227, 3106, 3106, 3156, 4482
Keywords:
email; freedom of association; freedom of speech; international instrument; staff representative;
Consideration 16
Extract:
Each complainant [...] seeks an award of 20,000 euros in moral damages for the “serious breach” of their rights since 2013. The Tribunal finds that the annulment of the impugned decision is in itself a sufficient remedy for any moral injury the complainants may have conceivably suffered.
Keywords:
moral damages; satisfaction; staff representative;
Judgment 4550
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the “social democracy” reform introduced by decision CA/D 2/14 and implemented in particular by Circular No. 356.
Consideration 20
Extract:
[A]ccording to the Tribunal’s well-established case law, employees are not entitled, when they file a complaint against an organisation in their capacity as staff representatives, to receive damages in their personal capacity (see, for example, Judgments 3258, consideration 5, 3522, consideration 6, 3671, consideration 5, or 4230, consideration 15).
Reference(s)
ILOAT Judgment(s): 3258, 3522, 3671, 4230
Keywords:
moral damages; staff representative;
Judgment 4486
133rd Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the composition of the Munich Staff Committee and of the Central Staff Committee.
Judgment keywords
Keywords:
complaint dismissed; staff representative;
Consideration 4
Extract:
With regard to his standing as an alleged member of the MSC [Munich Staff Committee] and the CSC [Central Staff Committee], as rightly pointed out by the IAC and endorsed by the President, at the time of the appeal, the complainant was not a member of the MSC because he had resigned from it, regardless of the purpose underlying his resignation. He was not a member of the CSC either. Pursuant to Article 2 of the then Election Regulations, “[t]he local section [that is to say the MSC] shall appoint the Munich members of the [CSC]”. Therefore, his election to the MSC did not automatically mean that he was also elected to the CSC. On the contrary, a separate appointment is a prerequisite according to the above provision. The complainant did not produce any evidence that the MSC appointed him as a member of the CSC. Thus, his claims as a staff representative of either the MSC or the CSC, including claims for declaring the composition of the MSC and the CSC void, for recognising his mandate to represent in the CSC the category C employees and for accessing the tools of communication for Staff Committee’s members, are irreceivable ratione personae. Accordingly, his allegation that the denial of his participation in the CSC activities constitutes a violation of the prohibition of non-discrimination and of equal treatment is not receivable either.
Keywords:
competence; internal appeals body; member of an internal body; ratione personae; receivability of the complaint; staff representative;
Judgment 4485
133rd Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Acting in his capacity as a staff representative, the complainant challenges the decision to assign different duties and responsibilities to a Principal Director without a competitive selection process.
Judgment keywords
Keywords:
complaint dismissed; selection procedure; staff representative;
Consideration 1
Extract:
The EPO notes that the complainant filed the present complaint in his capacity as a staff representative, but explicitly states that it does not challenge the receivability of the complaint. In view of the position of the EPO and the fact that, ultimately, the complaint is to be dismissed, the Tribunal will not, itself, examine the receivability of the complaint. However, this should not be taken as a tacit acceptance by the Tribunal that, in a similar case in the future, the complaint will be treated, without question, as receivable.
Keywords:
receivability of the complaint; staff representative;
Judgment 4483
133rd Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the “social democracy” reform introduced by decision CA/D 2/14 insofar as it abolished the Local Advisory Committees.
Judgment keywords
Keywords:
complaint dismissed; freedom of association; general decision; staff representative;
Consideration 9
Extract:
There can be no doubt that effective consultation with staff is a desirable objective recognised in a number of judgments of the Tribunal (see, for example, Judgment 4230). But the right to freely associate fundamentally concerns the right of staff to organise themselves, free of interference from the Administration, in order to advance their collective interests which can also involve advancing individual interests though collectively. Ordinarily that would occur through a staff union or staff association (whether recognised in the rules or not, see Judgment 2672, considerations 9 and 10) and by officials representing those bodies. Those interests will include levels of remuneration and terms and conditions of employment and embrace, without describing matters exhaustively, security of employment, safety in the workplace and post-employment income. A necessary incident of freedom of association is that the staff representatives have an opportunity to discuss staff grievances with the administration of an international organisation even if the opportunity is created by strike action (see, for example, Judgment 4435, consideration 9). While bodies such as the LACs and the GAC provided an avenue for consultation and discussion, it was an avenue outside the framework comprehended by the notion of freedom of association. That is because it was not consultation as part of a broader and integrated process of collectively advancing and protecting the interests of staff through staff unions or staff associations but rather was a singular, discrete and, in this sense, isolated process. As a result of decision CA/D 2/14, LSCs continued in name though fundamental and unlawful changes were made to the manner in which members of LSCs were elected, a matter addressed in another judgment adopted at this session (see Judgment 4482). Nonetheless LSCs were given, by operation of new Article 37 of the Service Regulations, a role at a local level to engage in discussion, on behalf of staff at the local level, about matters including those concerning conditions of employment of those staff. These arrangements are consistent with the right of staff to freely associate, and the abolition of another parallel system of consultation embodied in the LACs did not compromise or deny that right of staff at a local level. In the result, the complainant has not established the abolition of the LACs was unlawful for the reason he advanced.
Reference(s)
ILOAT Judgment(s): 2672, 4230, 4435, 4482
Keywords:
consultation; freedom of association; staff representative; staff union;
Judgment 4391
131st Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to promote him in the 2008 promotion exercise.
Consideration 13
Extract:
The complainant’s contention that the decision not to promote him was a hidden disciplinary sanction against him because he was a staff representative appointed by the Central Staff Committee as a member of the General Advisory Committee, to discourage employees from being staff representatives, is unfounded. The complainant provides no evidence, as against conjecture, to prove a nexus between the non-promotion decision and this allegation or from which it may be inferred that the decision was retaliatory (see, for example, Judgment 2907, under 23) or was actuated by prejudice.
Reference(s)
ILOAT Judgment(s): 2907
Keywords:
hidden disciplinary measure; promotion; retaliation; staff representative;
Judgment 4230
129th Session, 2020
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to introduce a maximum length of employment under short-term appointments in breach of applicable rules on consultation with staff representatives.
Judgment keywords
Keywords:
complaint allowed; consultation; decision quashed; staff representative;
Consideration 14
Extract:
The complainant seeks an order that the FAO follows the consultative process as set out in relevant Staff Rules and procedures before issuing a revised version of the Circular. While the FAO has a duty to consult properly with the staff representative bodies in the event that it decides to issue a new Circular, it is not within the Tribunal’s competence to make the requested order.
Keywords:
competence of tribunal; consultation; staff representative;
Consideration 15
Extract:
The Tribunal finds that the complainant has proved that the Organization showed bad faith by denying the UGSS its right to be consulted, in accordance with the Recognition Agreement and the Staff Regulations and Rules [...]. Presenting the SMCC with a pre-determined decision instead of providing for a proper consultation, and then later choosing to deal with the affected staff members on a case-by-case basis undermined the reputation, competence, and authority of the SRBs. However, according to consistent case law, the complainant, acting as a staff representative, is not entitled to an award of moral damages (see Judgments 3258, under 5, 3522, under 6, and 3671, under 5).
Reference(s)
ILOAT Judgment(s): 3258, 3522, 3671
Keywords:
bad faith; moral injury; staff representative;
Consideration 11
Extract:
The complaint is receivable insofar as the complainant is acting in his capacity as General Secretary of the UGSS and member of the SMCC and insofar as his complaint relates to the Organization’s alleged breach of its obligation to consult in good faith with the staff representative bodies prior to issuing the Circular.
Keywords:
receivability ratione materiae; receivability ratione personae; staff representative;
Considerations 12-13
Extract:
The complaint is well founded. As recognized by the majority of the members of the Appeals Committee, the amendment to the proposed 55-month rule, that is, its immediate application rather than the originally proposed application, was “drastically different from the effects the originally proposed 55-month rule would have had”. Changing the proposal to provide for an immediate application resulted in a significant number of staff members holding a temporary appointment being affected. The majority of the members of the Appeals Committee observed that “[t]he measures taken by the Organization in the follow-up to the issuance of [the Circular], in particular the extensions of contracts until 31 July 2015 for those individuals who had already accumulated 55 months of aggregate service at the time of issuance of the [Circular], indicate[d] the type of effects and potential responses fully informed and open consultations on the amended 55-month rule could have anticipated”. The majority noted “that on 5 March 2015, the SMCC discussed the amended [...] 55-month rule. However, neither the [complainant] nor the Organization submit[ted] that these discussions were ‘consultations’, as required by Staff Rule 302.8.3”. The majority did not consider that the meeting of 5 March constituted a “proper and meaningful consultation”, and it noted also that the “UGSS, according to the SMCC summary record, had informed Management on 5 March 2015 that it ‘was not aware of how many temporary staff would be immediately affected by the new rule on the retroactive limitation of short-term employment to 55 months, and asked to receive the numbers of [the General Service staff] that would be touched and risk to be separated by the Organization’. This information, in the [majority’s] view, would indeed have been useful, in fact, it was crucial to assess the effects of the amended 55-month rule on existing short-term [...] staff [in the General Service category]. However the information was not made available.” The Tribunal finds these considerations to be correct.
The Tribunal finds that by informing the staff representative bodies, at the 5 March meeting, of the decision to proceed with the introduction of the new Policy through the publication of the Circular on 6 March, the Organization was essentially presenting them with a fait accompli. Contrary to the Director-General’s view that the consultation process preceding the issuance of the Circular was appropriate, the Tribunal finds that it was insufficient, as a proper consultation must allow a reasonable amount of time for the consulted body to discuss the issue, have its principal questions answered and provide reasoned advice or recommendations, and must also allow time for the deciding authority to take that advice into consideration prior to taking the decision. In Judgment 380, under 21, the Tribunal stated: “Where there is only a simple obligation to consult, the decision-maker’s duty is to listen or at most to exchange views. The object of the consultation is that [she or] he will make the best decision and the assumption is that [she or] he will not succeed in doing that unless [she or] he has the benefit of the views of the person consulted. The object of negotiation on the other hand is compromise. This object would be frustrated if either party began with the determination not to make any concession in any circumstances, just as the object of consultation would be frustrated if the decision-maker began with a determination not to be influenced by anything that might be said to [her or] him. On both these hypotheses there would be a lack of good faith.”
Keywords:
consultation; good faith; staff representative;
Judgment 4194
128th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the refusal to consult them concerning the use of external contractors.
Judgment keywords
Keywords:
cause of action; competence of tribunal; complaint dismissed; en banc review; outsourcing; plenary judgment; staff representative;
Considerations 7-9
Extract:
Each staff member of an international organisation has a right to freely associate and the organisation has a corresponding duty to respect that right. This is a necessary incident of their employment (see, for example, Judgment 911, consideration 3). On the assumption that, as an incident of freedom of association, an organisation has a duty to meet or satisfy a staff representative’s legitimate request for information as an element of a broader obligation to consult (see, for example, Judgment 2919, consideration 15), and fails to do so, then a staff representative would, in that individual capacity and on this assumption, have a cause of action to enforce that duty.
There is no issue that, at the time these complaints were filed, each of the complainants had ceased being a member of the Munich Staff Committee even if one or a number may have held another office as a staff representative. Thus, when the proceedings were commenced in the Tribunal, the foundation of their cause of action had been removed. Their complaints are irreceivable.
This is not a barren technical conclusion. If their complaints were receivable, the merits of the case and the grant of relief would depend on the complainants demonstrating an ongoing right to be provided with the information and a right, if it existed, to continue to require the EPO to do what had been earlier requested. An immediate and probably insuperable problem would arise concerning relief if the complainants were able to establish, on the merits, they had been and were entitled to some or all of the information they had sought or had a right to request that certain things be done. But as they are no longer members of the Munich Staff Committee, they are not now entitled to any information of the type sought in the letter of 17 September 2009 nor to assert a right that the EPO do certain things. However this conclusion is not a barrier, more generally, to the enforcement of a right a member of a staff committee may have to be provided with information or a right to require the organisation to act in circumstances where the membership of the committee fluctuates over time. That is because when a staff representative has asserted a right arising from that status, the assertion or vindication of that right in proceedings before the Tribunal can be pursued by a newly elected staff representative as a “successor in title” (see Judgment 3465, consideration 3).
That would ordinarily involve the relevant committee approving the new staff representative assuming the role of the former staff representative. If approval was given then all steps taken by the former staff representative could be treated as steps taken by the new staff representative. In this way, steps taken by the former staff representative to pursue the grievance by way of internal appeal can be treated as steps taken by the new staff representative. The prosecution of a complaint in the Tribunal by the new staff representative would not be defeated by an argument that the new staff representative had not exhausted internal means of redress. She or he would have done so vicariously because of the actions of the former staff representative.
Reference(s)
ILOAT Judgment(s): 911, 2919, 3465
Keywords:
cause of action; duty to inform; freedom of association; internal remedies exhausted; ratione personae; staff representative;
Judgment 4155
128th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decision to allow all staff to vote when members of the Staff Council are elected.
Judgment keywords
Keywords:
complaint allowed; decision quashed; election; freedom of association; practice; staff representative;
Judgment 4120
127th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to communicate to him an investigation report concerning the payment of school fees to another employee.
Consideration 6
Extract:
Staff representatives have a legitimate and important role in the functioning of international organisations. However there are limits to that role, at least as may involve rights enforceable in proceedings in the Tribunal. In its reasoning the IAC referred to Judgment 2919 of this Tribunal in support of a widely cast role for staff representatives. However, the effect of that judgment may have been misunderstood and, in any event, the Tribunal has recently indicated that Judgment 2919, if read too widely, went beyond the scope of the Tribunal’s established jurisprudence (see Judgment 3515, consideration 3). In the present case, whether Article 120(a) of the Service Regulations had been applied correctly or incorrectly to the individual the subject of the internal audit was not a matter in respect of which the complainant had an interest capable of being pursued in a complaint to this Tribunal. Nor did the complainant have an enforceable right to obtain the results of the internal audit. Accordingly the complainant has no cause of action and his complaint in the Tribunal is irreceivable (see Judgment 3426, consideration 16). Thus, the complaint should be dismissed.
Reference(s)
ILOAT Judgment(s): 2919, 3426, 3515
Keywords:
cause of action; locus standi; no cause of action; receivability of the complaint; staff representative;
Judgment keywords
Keywords:
complaint dismissed; education expenses; report; staff representative;
Judgment 4043
126th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him for misconduct.
Consideration 18
Extract:
[T]he complainant was entitled to share the letter with others in SUEPO, as a general critique of the lawfulness of the general agreement. It is well settled that staff representatives must enjoy a broad freedom of speech (Judgment 3156, consideration 12) and it was not unlawful for the complainant, in the circumstances of this case, to disseminate the letter [...] as he admitted doing.
Reference(s)
ILOAT Judgment(s): 3156
Keywords:
freedom of association; freedom of speech; staff representative;
Judgment keywords
Keywords:
complaint allowed; decision quashed; misconduct; staff representative; termination of employment;
Judgment 4042
126th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to downgrade her for misconduct.
Judgment keywords
Keywords:
complaint allowed; decision quashed; downgrading; misconduct; staff representative;
Consideration 15
Extract:
[T]he complainant was entitled to share the letter with others in SUEPO, both as a general critique of the lawfulness of the general agreement and a manifestation of the Administration’s view of her conduct said to be an “implementation” of it. It is well settled that staff representatives must enjoy a broad freedom of speech (Judgment 3156, consideration 12) and it was not unlawful for the complainant to disseminate the letter of 2 November 2015 as she admitted doing.
Reference(s)
ILOAT Judgment(s): 3156
Keywords:
freedom of speech; staff representative;
Judgment 4002
126th Session, 2018
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision dismissing as clearly irreceivable his grievance complaint against several members of the Staff Council.
Judgment keywords
Keywords:
complaint dismissed; freedom of association; staff representative;
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