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Duty to Act in Good Faith, Respect the Dignity of Staff Members and Taking a Mediator’s Recommendations Seriously: Employment Litigation in the International Civil Service

Published on : 02/03/2018 02 March Mar 03 2018

Duty to Act in Good Faith, Respect the Dignity of Staff Members and Taking a Mediator’s Recommendations Seriously: Employment Litigation in the International Civil Service (International Labour Organization Administrative Tribunal,  Judgment No. 3911, I. versus ITER, 24 January 2018):
In this case before the International Labour Organization Administrative Tribunal (ILOAT), the complainant successfully challenged the International Fusion Energy Organization’s (ITER) decision to terminate his appointment for unsatisfactory performance. ITER’s decision was set aside and it was ordered to pay the complainant compensation, including moral damages and costs as, like the mediator found, the complainant was not timely warned and given an opportunity to improve.
The complainant joined ITER under a five-year contract. His probationary performance report and yearly appraisals for the following first two years were satisfactory. However his appraisal report for the third year was curiously not satisfactory and ITER terminated his contract for professional inadequacy despite the Organization’s mediator finding that there were serious flaws in the process leading to the termination. The ILOAT agreed with the mediator.
Near Aix-en-Provence in France, 35 nations are collaborating to build the world's largest tokamak, a magnetic fusion device that has been designed to prove the feasibility of fusion as a large-scale and carbon-free source of energy based on the same principle that powers our sun and stars. The ITER Members—China, the European Union, India, Japan, Korea, Russia and the United States—are engaged in a 35-year collaboration to build and operate the ITER experimental device, and together bring fusion to the point where a demonstration fusion reactor can be designed (Cf. ITER’s website).
ITER’s legal situation is interesting and different.
Similar to about 60 other international organizations (i.e. U.N., UNESCO, CERN, WTO…, with more than 58,000 employees), ITER entered in agreements with its host country France according it certain privileges and immunities, including immunity from jurisdiction of French employment courts (cf. notably, the Agreement between the Government of the French Republic and the ITER International Fusion Energy Organization regarding the Headquarters of ITER Organization and the Privileges and Immunities of the ITER Organization on French Territory, 7/11/2007, see Decree n° 2008-334 11/4/2008).
Staff members are recruited from Member countries and are international civil servants. Although the Organization is located in France, their contracts are not subject to French employment law but rather are governed by internal staff regulations drafted in English, the working language of the Organization. They are also subject to international civil service law principles.  French Law applies to health and safety aspects.
The ITER staff regulations include an internal procedure for appeals against administrative decisions affecting staff members, with an ultimate appeal before ILOAT, which may be accessed only once internal grievance mechanisms have been exhausted.
Pursuant to the regulations, following an initial appeal to the Director-General, an employee can opt for a form of mediation wherein a mediator renders non-binding recommendations. The term “mediation” takes a specific connotation here, at least when compared to mediation as we know it in France and Italy, or in international commercial disputes. The “mediator” in this case rendered written recommendations, analysing ILOAT case law precedent, after being provided documentation and evidence from both parties and hearing them. The final decision remained the prerogative of the Director-General, who was not bound by the mediator’s recommendations.
In the case, the mediator uncovered serious procedural flaws. Relying on a number of ILOAT Judgments, he found that the complainant had not been given a timely warning that his appointment might be terminated for professional inadequacy if his performance did not improve, and that no steps had been taken to help him achieve the necessary improvement through the implementation of a required “Improvement Plan”.
The mediator recommended that:
  • ITER revoke the decision to terminate the complainant’s contract and that the complainant be paid the salary due to him as from the date of separation up to the date of the decision that is recommended by the mediator.
  • the Human Resources Department be requested to explore with the complainant possibilities for reassigning him within ITER. If no suitable position was found or accepted by the complainant, the ITER Organization should make a settlement proposal to him.
    ITER decided not to follow any of these recommendations, which makes one wonder whether it took the mediation procedure seriously. Unlike the mediator, ITER considered that it had no duty to warn a staff member as its staff regulations do not require a warning.  Considering the amount of compensation awarded in the Judgment, and the moral damages, it appears that the Tribunal strongly disagreed.
    According to ILOAT, quoting its Judgment 2414 of 2/2/2005:
    A staff member whose service is not considered satisfactory is entitled to be informed in a timely manner as to the unsatisfactory aspects of his or her service so that steps can be taken to remedy the situation. Moreover, he or she is entitled to have objectives set in advance so that he or she will know the yardstick by which future performance will be assessed. These are fundamental aspects of the duty of an international organisation to act in good faith towards its staff members and to respect their dignity. [Emphasis added]”
    The obligation to give an adequate warning has thus been recognized as a principle of international civil service law. The Tribunal finds that such a general principle of law is based on the organization’s duty of good faith and duty of care to its staff members (consideration no. 13).
The Tribunal also found other violations of these duties:  “the complainant was subjected to actions and circumstances which did not show the respect for his dignity which an international organization is required to accord its staff members.” (consideration no. 16). For example, he was assigned to a new position without being given a job description, and was moved from a single to a shared office without even being properly informed.
The recognition of the duties of care and good faith is particularly significant in situations as those of international civil servants, who usually come from far away to undertake their functions, bringing their families to their duty stations, thus being particularly dependent on the good faith of the organizations in the implementation of their terms of employment. They have a right to trust their employers.
The Tribunal followed the mediator’s analysis. However, it ordered more compensation than the mediator had envisioned. The Tribunal established that the full salaries and allowances due under the complainant’s contract (approximately 2 years remaining of a 5 year contract) should be paid. Had the Organization followed his recommendation, it would perhaps have saved the additional amount it was ordered to pay and permitted its staff member to easily transition to another position elsewhere with respect and dignity.
William Peterson, Partner, together with colleagues Lawrence Christy and Maria-Teresa Cirelli, Partners in the firm Christy and Cirelli International Legal Services in Rome.


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