Judgements again

Märpel took a well deserved vacation as she was exhausted from all the events at the end of June, but the news kept coming in the mean time.

Two publications were issued about the 126th session of the AT-ILO. The first one, from Suepo, analyses the 17 judgments concerning the EPO and concludes that there is a lack of normative control and a clear bias in favour of the Organisation - to the detriment of staff. It can be downloaded here and is well worth a read:

https://suepo.org/documents/44975/57698.pdf

The second is the report from Laurent Germond, Director Employment law at the EPO (and a personal friend of the registrar. As it is only available on the EPO intranet, Märpel would like to make it publicly available here:



Report on the 126th session of the ILOAT
 
Following its 126th session, held from 23 April to 18 May 2018, the ILO Administrative Tribunal (ILOAT) on 26 June 2018 delivered in public 75 judgments on 96 cases concerning 21 international organisations, while recording 22 withdrawals. For the EPO, 17 judgments were delivered in 25 cases.

Out of these 17 EPO-related judgments, the Tribunal:

·         dismissed the complaints in eighteen cases (Judgments 3983, 4041, 4044, 4045, 4046, 4048, 4049, 4050, 4053 and 4055), out of which nine were in summary procedure (Judgments 3983 and 4055);

·         replied clearly in two cases to the Office's requests for interpretation and rejected the claims of one complainant whereby the Office did not implement properly a previous judgment (Judgments 3986 and 3989);

·         granted in five cases the main claims of the complainants, two cases being referred back to the Office to enable for new decisions to be taken (Judgments 4051, 4042, 4043, 4047 and 4052) .

As regards disciplinary measures against staff or trade union representatives as well as against persons appointed by them, the EPO was aware that it is highly sensitive to impose such disciplinary measures. When looking at the two last sessions of the ILOAT, however, it emerges that in some cases (Judgments 3968, 3971, 4050) the misconduct and the sanction were confirmed by the Tribunal, while in others they were set aside (Judgments 4042, 4043, 4047, 4052), it being specified that the Tribunal left a margin of manoeuvre to the Office while referring two cases back to the Organisation (Judgments 4047 and 4052). The Tribunal also rejected as unfounded a claim for institutional harassment brought by a staff representative against the President of the Office (Judgment 4048). In the EPO's cases as well as in other International Organisations', the Tribunal conveyed the clear message that staff representatives are not immune from disciplinary sanctions, in particular when blocking the institutions or infringing colleagues' dignity. However, it also underlined that the administration should avoid being brought into the internal matters of a union.

The Tribunal validated as "balanced" the temporary composition of the Appeals Committee between 1 January and 30 June 2017, which was relied upon in light of the CSC's refusal to appoint members of the Appeals Committee (Judgment 4049). The Tribunal noted that two out of four members of the Appeals Committee were chosen "[b]y way of exception" among eligible staff members in the pool of staff representatives and that the composition was thus in accordance with the relevant provisions "which are not ambiguous". The ILOAT's judgment in this regard will bring stability for the Office's internal means of redress which operate under the authority of external Chair and Vice-Chairs since October 2017.

Wherever relevant medical issues are identified during a disciplinary procedure, the Tribunal clarified the duty of the Disciplinary Committee to order a medical assessment and determine its scope. The Tribunal also stressed the duty of staff to cooperate with medical proceedings, which is the counterpart to the Office's duty of care, and that in instances where a staff member refuses to undergo a required medical examination or to provide relevant medical background information, "the examination can be undertaken on the basis of documents, if necessary." (Judgment 3989, consideration 4; cf. Judgment 3986, consideration 8).

In sum, the EPO-related judgments should be taken as a reminder of the need for the administration and all staff members to work together to enter into a constructive social dialogue and, in case of litigation, ensure the functioning of the legal protection of staff through an efficient system of internal and external means of redress.

Laurent Germond, Director
Directorate Employment Law



Märpel thinks that Mr Germond wishes for " the administration and all staff members to work together " seem to forget that the it is the administration that dismissed staff members even when the appeal committee gave a positive opinion. He also seem to forget that the same administration created a new investigation unit with vast powers and absolutely no normative control. Last but not least, he also forgets that the same administration later modified the internal means of redress several times until they practically gave the administration 100% success.