Judgment No. 4022
The complaint is dismissed.
The complainant challenges the WTO’s decision to grant him local recruitment status upon joining the Organization.
local status; complaint dismissed
The complainant applies for an oral hearing under Article 12, paragraph 1, of the Rules of the Tribunal. The Tribunal notes, however, that the JAB elicited relevant evidence from the parties, by way of specific questions, to which they responded. They were also given an opportunity to comment on each other’s response. Moreover, in view of the abundant and sufficiently clear submissions and evidence which the parties have provided, the Tribunal considers that it is fully informed about the case and does not deem it necessary to hold an oral hearing. The application for a hearing is therefore dismissed.
ILOAT reference: Article 12, paragraph 1, of the Rules
“[R]esident” in Staff Rule 103.1(a) means simple residence. There is nothing in the provision which shows that this is to be equated with “domicile”, “permanent abode”, whether the staff member considers herself or himself integrated locally, or would immediately leave Switzerland on leaving the employment to which recruited. A staff member is “resident”, and thus “locally recruited” under Staff Rule 103.1(a), if at the time of recruitment she or he is actually resident, or effectively lives, at an address within the stated distance. Staff Rule 103.1(a) is clear and unambiguous and therefore its terms are to be given their obvious and ordinary meaning (see Judgment 3742, consideration 4). These terms provide that a person is locally recruited, if at the time of recruitment she or he resided at a place within 75 km from the Pont du Mont-Blanc in Geneva, regardless of the duration of that residence, unless she or he fell into the stated exceptions. The complainant did not fall within any of the stated exceptions and had resided and worked in Geneva for some sixteen years prior to being recruited. While in his Personal History Form he gave a United States address as his permanent address, he also gave his home address in Geneva as his present address. This signified that at the time of his recruitment he resided within the area identified in Staff Rule 103.1(a), which rendered him locally recruited.
It did not matter, as the complainant suggests, that although he “lived in Geneva for some time, he never applied for Swiss nationality”. This is in fact an admission that he was resident within the given area that rendered him locally recruited under Staff Rule 103.1(a). Neither did it matter, as the complainant further suggests, that he did not request the C permit which he held; owned no property in Switzerland; had worked with a company which was not subject to Swiss law; had always been paid by that company through his bank account in the United States (US), which he continued to maintain; possessed US credit cards; contributed to a pension account only in the US and participated in its social security scheme for retirement there only; continued to vote in US elections and to file US income tax declarations, which US law obliges him to do as a citizen; sends his children to summer school in the US and spends his annual summer holidays there with his family. Consequently, the first ground of the complaint is unfounded.
With respect to the second ground, namely that the decision subjected him to unequal treatment and was therefore an abuse of authority, the Tribunal notes that in Judgment 2313, consideration 5, it is stated as follows:
“The principle of equality requires that persons in like situations be treated alike and that persons in relevantly different situations be treated differently. In most cases involving allegations of unequal treatment, the critical question is whether there is a relevant difference warranting the different treatment involved. Even where there is a relevant difference, different treatment may breach the principle of equality if the different treatment is not appropriate and adapted to that difference.” [...]
The five persons were not in the same situation in fact and in law as the complainant. [...] Inasmuch as [...] there was no violation of the principle of equal treatment, the complaint is unfounded and will be dismissed.
ILOAT Judgment(s): 2313