Judgment No. 3414
The complaint is dismissed.
The complainant unsuccessfully challenges the decision to remove his name from an e-mail distribution list on the ground that he had been released from his regular duties to work as President of the Staff Council.
freedom of association; staff representative; complaint dismissed
"[I]t has long been recognised that all officials of international organisations have a right to associate and an implied contractual term in the appointment of each that the relevant organisation will not infringe that right (see, for example, Judgment 496, consideration 6). Moreover the principle of freedom of association is infringed if a person is subject to detriment or disability because of her or his activities within a staff association or the Staff Council (see, for example, Judgments 2704, consideration 6, and 3084, consideration 19). In the present case the complainant does contend he is being discriminated against and this has arisen by virtue of him occupying the office of President of the Staff Council. This plea is sufficient to engage the jurisdiction of the Tribunal. It is, of course, another question whether this plea can be made on the facts. But the Tribunal is competent to hear the complaint and rejects the IAEA’s contention that it is not."
Jugement(s) TAOIT: 496, 2704, 3084
competence; freedom of association
"The IAEA argues that the complaint is frivolous and should, for that reason, be dismissed at the outset. It cites two authorities in support of this approach. One is Judgment 2730 where, at consideration 4, the Tribunal held that it did “not have to tolerate the initiation of proceedings before it that are manifestly frivolous, wrongful or vexatious”. However in that matter the Tribunal, while very critical of the way the complainant articulated his case in the pleas, did not proceed to characterise the entire complaint as frivolous, wrongful or vexatious nor did it refrain from considering the merits of the complaint entirely. It did consider an aspect of the case and rejected it on its merits. The other authority is a decision of the former United Nations Administrative Tribunal (UNAT) in Judgment 497. However, as UNAT noted in its reasons, the Statute governing that Tribunal provided for the declaration that an application is frivolous and noted that created a proper mechanism for preventing abuse of the appellate procedure by vexatious litigants. This Tribunal’s Statute provides no such express mechanism. In any event to reach a conclusion that a particular complaint is frivolous, wrongful or vexatious would require an analysis of the substance of the case to sustain a conclusion that it was devoid of merit. In some senses, other than in the most obvious and egregious case, the Tribunal cannot avoid (assuming it can otherwise) looking at the merits of any complaint even if, at the end of the day, the Tribunal concludes that it is without substance. In those circumstances issues may arise about costs. Also, the issue raised by the complainant is, potentially, one of substance and it would be inappropriate, as the IAEA apparently invites the Tribunal to do, to dismiss the complaint at the outset as frivolous or vexatious. This aspect of the IAEA’s pleas is rejected."
Jugement(s) TAOIT: 497, 2730
"[T]he complainant bears the burden of proving that the right has been violated or that he had been discriminated against by the IAEA. In so far as an elected representative alleges breach of the right to freedom of association, it is incumbent on the complainant to prove the breach (see Judgment 2585, consideration 11)."
Jugement(s) TAOIT: 2585
burden of proof; discrimination
"Communication between officials or groups of officials of an international organisation is essential for the effective functioning of the organisation. With the advent of e-mail, one practical and common means of communication within a group involves the creation of e-mail distribution lists so that information contained in an e-mail can be given routinely to all officials who have or may have a common interest in knowing that information by virtue of membership in that group. There is no reason to doubt that in the ordinary course the identity of officials who will receive such information by being on a particular distribution list, is a matter to be determined by the administration of the organisation by officials who have a leadership role within the group or by others. As a generalisation, no individual official has a right to assert that she or he is entitled to particular information simply by virtue of her or his own assessment of the position occupied by the official in the organisation’s structure and the correlative need for information in the face of a decision by another official that the information will not be provided."
right to information