Judgment No. 4002
The complaint is dismissed.
The complainant impugns the decision dismissing as clearly irreceivable his grievance complaint against several members of the Staff Council.
freedom of association; staff representative; complaint dismissed
This complaint was filed in the Tribunal before, as a matter of fact, the complainant initiated his internal appeal culminating in the report of the Appeal Board [...]. It may well be that, at the time the complaint was filed, the complainant had not exhausted his internal means of redress, but a firm conclusion to that effect would require a detailed analysis of the applicable rules then operating. Specifically, those rules may address the consequences of the abolition of the JGP effective 1 January 2014, save to enable it to consider grievances filed before that date. But WIPO expressly abandoned, in its pleas, an argument that the complainant had not exhausted the internal means of redress. In these unusual circumstances, the Tribunal will consider the parties’ arguments focusing on the JGP’s decision.
failure to exhaust internal remedies
In Judgment 3106, under 7 and 8, the Tribunal discussed the principle of freedom of association and the implications of that principle in terms of the relationship between an organization and the staff union. The Tribunal observed:
“[T]hat principle has two important aspects. The first is that it precludes interference by an organisation in the affairs of its staff union or the organs of its staff union (see Judgment 2100, under 15). A staff union must be free to conduct its own affairs, to regulate its own activities and, also, to regulate the conduct of its members in relation to those affairs and activities. [...] Further, an organisation must remain neutral when differences of opinion emerge within a staff union: it must not favour one group or one point of view over another. To do so would be to diminish the right of a staff union to conduct its own affairs and to regulate its own activities. Nor does an organisation have any legitimate interest in the actions of staff members in their dealings with their staff union and/or other staff union members with respect to the affairs and activities of the union. Thus, it was said in Judgment 274, under 22, that ‘[a] staff member’s conduct of [his] private life is not the concern of the Director-General [unless it] brings the Organization into disrepute’, and that trade union activities ‘likewise constitute an area that is ““prima facie”” outside the Director-General’s jurisdiction’, although ‘there may be exceptional cases’.
The second aspect of freedom of association [...] is that it necessarily involves freedom of discussion and debate. [...] This notwithstanding, the Tribunal has acknowledged that the freedom of discussion and debate is not absolute and that there may be cases in which an organisation 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 Judgment 2227, under 7). [...]”
In the present case, given that the actions at issue were all taken by the Staff Council in the context of the regulation of its own activities and the regulation of the conduct of one of its members, a consideration of the merits of the grievance complaint was clearly beyond the mandate of the JGP. Moreover, a consideration of the merits by the JGP would have violated the principle of freedom of association.
ILOAT Judgment(s): 274, 2100, 2227, 3106
freedom of association
In his complaint, the complainant maintains that he was subjected to harassment, retaliation, intimidation, discrimination and unequal treatment, abuse of power, defamation, and a violation of human rights. He submits that the Staff Council’s members unfounded allegations against him; barring him from performing his duty as a member of the Staff Council; and publishing of a defamatory document about him constitute improper conduct and created a hostile working environment. It must be observed that [...] the only grievances that have been subject to internal review are those of retaliation and defamation. It follows that the allegations of harassment, intimidation, discrimination and unequal treatment, abuse of power and violation of human rights are beyond the scope of this complaint and will not be considered. As to the allegations of retaliation and defamation, [...] the complainant does not dispute that the acts allegedly constituting retaliation and defamation were taken in the context of Staff Council activities.
new claim; new plea