Due Process and Equality of Arms in the Internal Appeal: New Developments from Judgments 3586 and 368
LAURENCE FAUTH
REPRESENTING INTERNATIONAL CIVIL SERVANTS SINCE 2002
MAY 2017 – TIPS AND INFORMATION NEWSLETTER
I wish to thank the Tribunal for this kind invitation to participate in this historic symposium.
Because of the requirement to exhaust administrative remedies before filing an appeal with the ILO Administrative Tribunal, the internal appeal is obviously very important. The ILOAT acts as an appellate court, and therefore gives significant deference to the findings of fact and conclusions on the merits of the internal appeal bodies. The Tribunal oversees some 60 international organizations with separate internal appeal systems. How does the Tribunal manage or police the myriad number of internal appeal systems. What are indeed the consequences, if any, when the Tribunal finds that the internal appeal process failed to meet the principles of due process that it has established or acknowledged? What is the status of the principle of equality of arms?
In my mind this issue became more pronounced when the Redesign Panel issued its report in 2006 finding that the United Nations internal appeal process was seriously flawed in its design and did not provide an efficient means of redress in keeping with principles of due process. Many of the organizations subscribing to the Tribunal’s jurisdiction maintain internal appeal structures similar to the United Nations’ old internal justice system. Based on the redesign panel report the United Nations replaced its system in 2009 with a professionally staffed system. The ILOAT in my view has taken a carrot and stick approach to violations of due process, and in many cases has shown tremendous patience when it comes to dealing with breaches of due process in the internal appeal. Nonetheless, it has advanced staff member’s right to due process significantly over the years. I will also discuss two recent Judgments (No. 3586 issued in February 2016 and No. 3688 issued in July 2016) that in my opinion will certainly have a significant impact on the law of due process.
To put a finer point on the internal appeal process, there are in most organizations (but not all) usually three steps in the appeal process, each of which engage principles of due process: 1. the administrative review; 2. the internal appeal board review and recommendation; and 3. the final decision by the executive head.
This issue of course involves a determination of the principles of due process, and the consequences, if any, if the internal appeal procedure followed violates the staff member’s rights to due process? In Judgment 1317 the Tribunal explained that the internal appeal provides “procedural safeguards that are calculated to protect the staff against arbitrary management”. Given the immunity of international organizations, this proposition cannot be overstated.
Where can the principles of due process be found? Article II, section 5 of the Tribunal’s statute provides that the Tribunal is open to “any other international organization meeting the standards set out in the Annex hereto”. In looking at the Annex to the Statute, however, there is only reference to the 3 basic criteria for admission to the Tribunal’s jurisdiction: i) the organization is international in character; ii) the organization is not subject to national laws; and iii) the organization agrees to comply with the Tribunal’s judgments. There are no stipulations specifying how the internal appeal machinery should be structured nor to principles of due process.
This means that the organizations are free to establish their own dispute resolution machinery. Of course, for those organizations that do not adopt internal appeal rules, they will quickly learn that their staff have a right of direct appeal to the Tribunal. The Tribunal has thus developed general principles of law of due process applicable in the internal appeal process through the issuance of its judgments, somewhat like the common law system. However, it must be kept in mind that since each organization has adopted its own unique internal appeal procedure, one cannot be certain that the Tribunal’s finding of a breach of due process in one case will apply in another case.
I turn now to a few judgments to identify the principles of due process that have developed over the years, paying attention to the consequences for any breaches.
1. Access to the Appeal Process; General Principles
In Judgment 2282 the Tribunal dealt with a case where the staff members were threatened with retaliation if they filed an appeal. After the manager who made the threats left the organization some 2 years later, the staff members had the courage and appealed. The organization argued that the appeals were time-barred as they were filed 2 years late. However, in the pleadings the Organization did not deny that threats had been made. The Tribunal stated:
„The integrity of the internal appellate process is of fundamental importance to the proper functioning of the international civil service. Like the process before the Tribunal itself, it must be free of any taint of fraud or abuse of power . . . The Tribunal asserts unhesitatingly that intimidation or threats of reprisal in such circumstances will be severely sanctioned. Indeed, there is a positive obligation on the part of the administration of every international organisation to assist staff in the exercise of their recourse and to place no obstacle in their way.“
What were the consequences? The time-bar defense was rejected, and the complainants won on the merits. This judgment sent a strong message to organizations to make sure staff have unfettered access to the appeals process, should provide guidance, and that they should not put obstacles in the way. In this respect, the organizations may not set traps, and in Judgment No. 2017, the Tribunal held that the internal appeal filed with the wrong official should have simply been forwarded to the appeal board secretary and could not be grounds for asserting time-bar.
The Tribunal wrote in its Judgment 2315:
“Before leaving this case, the Tribunal would comment on an allegation of failure of due process in the proceedings before the Joint Appeals Board (JAB) . . . to the effect that the JAB heard a witness in his absence and denied him the right to cross-examine witnesses. In its surrejoinder the Agency appears to defend and justify this practice, but again only in general terms. The question has not been properly pleaded or explored in the present case and therefore does not form the basis of the present decision. The Tribunal notes, however, that in the absence of special circumstances such as a compelling need to preserve confidentiality, internal appellate bodies such as the JAB must strictly observe the rules of due process and natural justice and that those rules normally require a full opportunity for interested parties to be present at the hearing of witnesses and to make full answer in defence. If that is not the practice observed by the JAB, the Agency should waste no time in instituting necessary reforms.”
What were the consequences? In this case, the Tribunal issued a stern warning to the organization despite finding that the issue had not been “properly pleaded or explored”. More recently, the Tribunal found a breach of due process in a case alleging harassment in Judgment No. 2982 (issued 2011):
“he was given no opportunity to answer the arguments put forward by the Administration. In particular, he was not present when the Chief of Mission was interviewed and not provided with a transcript of her statements. Nor was he provided with documents submitted by the Administration”.
What was the consequence? The Tribunal ruled on the merits of the harassment claim.
2. Functioning of the Appeals Body
The Tribunal has held that the appeals boards must respect “minimum standards of justice”. What does this mean? In Judgment No. 1317 (issued in 1994), in addressing an appeal of a decision of non-renewal of a fixed-term appointment, the Tribunal explained.
“An internal appeal procedure that works properly is an important safeguard of staff rights and social harmony in an international organisation and, as a prerequisite of judicial review, an indispensable means of preventing the dispute from going outside the organisation. In the event of a complaint it greatly helps the Tribunal in identifying the material issues of fact and law …
The report which the Board submitted is open to even more serious objections. It is terse and offers no reasoning on issues of fact or of law. There is no telling whether, as due adversarial process required, the Board took up the complainant’s pleas and the Union’s replies. Even though a report by an appeals body is not a judgment by a court of law, the report of 26 May 1992 does not come up to the minimum standards of justice that the complainant was entitled to.
34. The Union is wholly to blame for those shortcomings. The Appeal Board is set up under the Staff Regulations and the Union has a duty to keep it at all times in proper working order … Lastly, by endorsing the report without comment or qualification in his letter of 4 June 1992 the Secretary- General too assumed full responsibility for its contents.”
What were the consequences? The Tribunal did not send the case back to the organization for further proceedings but ruled on the merits and awarded 3 years salary and allowances. One can see here another principle of due process at work – if the executive head accepts the report of the board without comment or qualification it becomes his or her full responsibility. There is also the related principle of due process that if the executive head agrees with the board’s report, there is no requirement to give any additional reasons for the decision; however, if he/shedisagrees with the board’s positive recommendations, the disagreements and departure must be fully explained.
Another interesting case about how the failure of due process affects the ultimate decisions comes from Judgment 1814 (issued 1999):
“The Joint Committee for disputes dealt with the ‘complaint’ by correspondence. The Tribunal considers that the texts provide ‘that the Committee shall meet‘, and it meets only if all the full members, or in their absence the alternate members, are present‘. On that score alone there was breach of due process and the impugned decision cannot stand.“
What were the consequences? The case was remanded to the organization for new proceedings.
3. Delays
In Judgment 1319 (issued in 1994), the Tribunal held that „By causing or allowing [a delay of more than one year between the internal appeal and the final decision] and by denying the Board of Appeal the information which would have enabled it to give a timely and complete opinion on the complainant’s case the organization fell short of the requirements of due administrative process and of the standards of care it must apply to its staff. In the circumstances, the complainant is entitled to the sum […] she has claimed in damages and costs.”
Delays in the internal appeal process are not new. So long as the internal appeal is pursued diligently which is a requirement placed on the staff member by, for example, sending request for status letters at regular intervals, after a period of 1.5 years it is possible to explore whether to proceed with the appeal to the Tribunal, and claim damages for the delay.
The Tribunal has often stated that internal appeal bodies must be properly resourced and this will avoid delays. In Judgment No. 2662 the Tribunal noted that “the fact that an internal appeal body might determine that issue erroneously highlights the need for international organisations to ensure that those bodies are properly resourced and that their proceedings are not beset by unreasonable delay.” The Tribunal therefore traced the delay in the proceeding to lack of resources. What were the consequences? The complainant was awarded 5,000 euros for moral damages.
In Judgment 2904, the Tribunal “As for the internal appeal process, the Tribunal recalls that the Organization has a duty to maintain a fully functional internal appeals body” and in Judgment 2197 that the internal appeal must move forward with “reasonable speed.”
4. Discovery/Production of Documents
In order for the staff member to know what happened and what facts led to the decision, access to written evidence is critical to due process in many if not all cases. Does the staff member have the right to obtain written documents from the administration that are relevant for the appeal?
Recently, in Judgment 3777 (issued in 2014) the Tribunal summarized the current general state of the law:
“It is well established in the Tribunal’s case law that a document upon which a decision is based cannot be withheld from the concerned staff member. This disclosure obligation is not overcome by disclosure in the context of the Tribunal’s proceedings. However in the present case, the failure to disclose the correspondences did not prejudice the complainant (see Judgment 2899, under 23).”
In Judgment 1815 (issued 1999), the Tribunal held in respect of a selection decision:
“When there is a process of selection to fill a post or bestow some boon the records are indeed ordinarily privileged: the organisation may not reveal to one candidate information about any of the others. Yet if there is a dispute a candidate has a rightful interest in proving material facts. So the case law prescribes disclosure of any privileged item of evidence that goes to the nub. Precautions may be taken to keep from the complainant’s ken immaterial information on a third party such as another candidate . . .
To ensure due process both in internal proceedings and before the Tribunal the staff member must get any items of information material to the outcome. And one such item is the names of the advisory body’s members. Who they are may of course affect its reasoning and the weight its report carries, and so the staff member should be allowed at least to comment.”
On the other hand, in Judgment No 2163 the Tribunal stated: “firm case law has it that the Tribunal will not interfere with the comparison of entrants in a competition. Only when it appears that the choice of candidate may rest on some mistake of fact or law or there may have been misuse of authority will the Tribunal order the production of evidence so that it may review such comparison and will the complainant be entitled to see such evidence (see Judgment 1564, under 8).”
I also note that in Judgment 3209, the Tribunal ordered the production of documents on its own motion since neither party had provided the documents and they were needed to decide the case.
I now turn to two signficant judgments issued on the issue of due process in 2016.
Judgment No. 3568 involved an appeal of a decision not to extend a fixed-term appointment solely on the grounds of alleged financial constraints. The Tribunal stated the following:
- whether “funds were known to have been available to fund the extension of the complainant’s contract when the decision was taken or before his contract expired is a question of fact, which the HBA had to determine.”
- “The HBA could not have properly determined the issue unless WHO placed all of the relevant information before it and provided it to the complainant as well.”
- “WHO should have disclosed all of the information, including copies of the fund agreements and related documents or records, that it had that related to line items, position descriptions and allocation of funds associated with each grant, to the HBA and to the complainant. This disclosure would have assisted the HBA to determine the central issue of whether GMP knew before the complainant’s contract expired that funds would have become available to fund his extension.”
- “The Tribunal has consistently stated that the principle of equality of arms must be observed by ensuring that all parties in a case are provided with all of the materials an adjudicating body such as the HBA uses in an internal appeal, and that the failure to do so constitutes a breach of due process.”
- “WHO breached due process by not having provided the relevant documents to the complainant. It also breached due process by not disclosing all of the agreements and related information”;
- “The Tribunal holds that all relevant documents should have been disclosed to the HBA, without its request, to enable it to thoroughly investigate the central question: whether funds were or would have been available or were “expected to be assured” at the material time to fund the extension.”
- “The Tribunal considers that because WHO did not disclose all of the relevant materials to the HBA, its investigation was incomplete. The failure to disclose all of the relevant materials prevented the HBA from properly considering the facts. Accordingly, the decision not to extend the complainant’s contract not only violated due process but also WHO’s duty of care and the impugned decision should be set aside.”
The Tribunal did not remand the case back to the organization for further proceedings with an order to produce the financial records, but instead awarded 80,000USD in material damages and 30,000 USD in moral damages.
Judgment No. 3688 involved a staff member whose post was abolished also on the grounds of financial constraints. The Tribunal found that the internal appeal was unreasonably delayed in breach of due process, and canvassed the law in this area thoroughly. But that is not the most significant aspect of the case. The Tribunal decided at consideration 18:
“Whether the post was abolished for financial reasons is a question of fact. Those facts were within the knowledge of WHO and it must show that when it advanced financial reasons as a ground for the abolition of the complainant’s post this was genuine. It has not done so. In the absence of that evidence, it is determined that the complainant’s post was unlawfully abolished and the claim on this ground is well founded.”
The Tribunal did not remand the case back to the organization for further proceedings with an order to produce the financial records, but instead awarded 90,000USD in material damages and 70,000 USD in moral damages.
In reviewing the cases where the Tribunal considers violations of due process in the internal appeal, what emerges is that the Tribunal on balance has not hesitated to find violations of due process. However, on occasions, it has not taken the further step of adequately providing a remedy for the violation and thus giving incentive to the organizations to amend their rules or practices. Judgments 3568 and 3688 have taken the issue of due process and equality of arms in a new positive direction. In cases where an appointment is terminated for abolition of post or not extended on the grounds of financial difficulties, the organizations will have to produce the financial records to prove this was the real reason or risk losing the appeal on the merits and paying significant damages. This principle that an organization must disclose a material document relied upon to justify the decision is echoed in an early Tribunal Judgment No. 13:
. . . the Tribunal “deems it inadmissible that the considerations alleged by that Organisation can in any way prejudice the legitimate interest of the complainant; that the existence of a secret document concerning the complainant, the content of which is unknown to him and against which he is consequently powerless to defend himself, obviously vitiates the just application of the Regulations to the complainant and affects not only the interests of the staff as a whole but also the interests of justice itself (vide, judgment No. 15 of the Administrative Tribunal of the United Nations: ‘The Applicant cannot be penalised because certain information is considered by the Respondent as confidential and the Applicant has no opportunity either of knowing that the reason is or of challenging it.’) . . . .”