Judgment No. 3642
The complaints are dismissed.
The complainants challenge the lawfulness of the procedure followed to fill an Administrative Assistant position.
joinder; appointment; selection procedure; complaint dismissed
The complainants address the question of receivability in their brief in a summary way but did not file a rejoinder dealing with the arguments of WIPO which are advanced in its reply.
[T]he complainants [...] made no attempt to challenge, in a rejoinder, the argument of WIPO. Nor did they attempt to identify in a rejoinder what they say are the applicable principles and, additionally, establish the factual foundation which would result in these complaints being receivable because they can be maintained by the complainants in their individual capacity. In the absence of such evidence it is difficult for the Tribunal to be affirmatively satisfied that the complainants have standing in their individual capacity to bring these complaints. Accordingly, the Tribunal concludes that the complaints are not receivable in so far as they are brought by the complainants in their individual capacity.
burden of proof
The jurisprudence of the Tribunal on the standing of elected staff representatives to take proceedings before the Tribunal in a case such as the present is not uniformly clear. Recently in Judgment 3557, consideration 3, the Tribunal indicated that in certain circumstances staff representatives may challenge the appointment of another official, but can only do so if they allege breach of their own individual rights. In another recent case, Judgment 3546, the Tribunal concluded it was unnecessary to consider whether a staff representative had standing generally to challenge the extension of the appointment of another official because the complainant, who was a staff representative, had had a right to be advised of the proposal to extend the appointment and that right had been allegedly violated. That was viewed as sufficient to give the complainant standing.
On the other hand, the right of a staff representative to file a complaint challenging the appointment of an official has been recognised as an aspect of the right of an elected staff representative to bring proceedings on behalf of a staff committee with a view to preserving common rights and interests of staff (see Judgment 2791, consideration 2, and Judgment 2755, consideration 6).
However ultimately, the Tribunal’s jurisdiction and the related question of a person’s right to invoke that jurisdiction should be determined by reference to the Tribunal’s Statute. Article II addresses both questions. The Tribunal is conferred with jurisdiction to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials of the International Labour Office and other organisations which have submitted to the Tribunal’s jurisdiction, as well as complaints alleging non-observance of such provisions of the relevant Staff Regulations as are applicable to the case. Having identified and defined the jurisdiction, Article II identifies in paragraph 6, the class or classes of people who can invoke that jurisdiction. That paragraph provides that “[t]he Tribunal shall be open […] to the official” and to any person to whom the “official’s rights have devolved” on death together with any other person entitled to some right of a deceased official. A legal normative document conferring jurisdiction on a court should not be narrowly construed. However there is little room to doubt that the expression “shall be open to the official” is a reference to the official whose terms of appointment have allegedly not been observed or, in relation to whose circumstances (in “a case”), applicable provisions of the Staff Regulations have allegedly not been observed. This is reinforced by the reference to “the official’s rights”, in the singular, in relation to rights that have devolved on death. That is to say, standing is directed to the vindication or enforcement of the rights of an individual officer. The clause does not cast the net any wider in relation to who can invoke the jurisdiction of the Tribunal.
Similarly in Article VIII, dealing with remedies, the focus of the Article is the provision of relief or a remedy to an individual complainant on the assumption that the relief or remedy will overcome the effect or consequences on that complainant of the non-observance by either undoing the effect of the defendant organisation’s conduct (by rescission) or the payment of compensation to the complainant.
ILOAT Judgment(s): 2755, 2791, 3546, 3557
locus standi; successor; staff representative
It might be thought all officials have a “right” to have the organisation which employs them comply with and observe the organisation’s Staff Regulations irrespective of whether any failure to comply or non-observance has any bearing on their own situation as an official of the organisation. If this were so, all officials would have standing to commence proceedings in the Tribunal in relation to any non-observance of the Staff Regulations. It is highly improbable that the Statute intended this result. But is an elected staff representative able to enforce this “right” even though all other officials cannot unless affected by the non-observance? There is no basis in the language or structure of the Statute or by reference to the nature of the jurisdiction conferred on the Tribunal, to suggest this is so. Consistent with the entire focus of the Statute, the right of an elected representative to enforce the Staff Regulations for the benefit of all staff is limited to circumstances where the provision (which has allegedly not been observed) confers a right on the elected representative as a member of staff. It might be a right limited to the staff representative (such as the right to be consulted) or it might be a right enjoyed by all staff (such as the right to freedom of association).
locus standi; staff representative