Michael Moore (President of the Tribunal) and Patrick Frydman of the ILOAT Meet “Stakeholders” of the Court
Nowadays it seems like supranational courts have "shareholders" and - to use a softer term - "stakeholders" (like UPC, where the kangaroo-like court judges are part-time employees of the companies involved or like MHRA, where almost all the funding comes from the industry - a truly shocking conflict of interest)
TODAY'S news cycle is relatively slow, as one might expect because people are on holidays in many Western countries. So we're catching up with some EPO 'dirty laundry'. This past summer we saw how António Campinos had celebrated a frustration-inducing, staff-hostile decision from the ILO's Administrative Tribunal (ILOAT).
The staff union of the EPO (SUEPO for short) wrote:
On 4 May 2023 the Judges of the Administrative Tribunal of the ILO met with “stakeholders” of all organizations within the Tribunal’s jurisdiction. Two representatives of SUEPO, as well as some lawyers who frequently represent SUEPO before the Tribunal, took part in this meeting in Geneva.
During the meeting the President of the Tribunal also announced important changes to the Rules of the Tribunal, which were subsequently published on 11 May 2023 and entered into force at the very day. The most important changes seem to be the limitation of the number of pages for all submissions and the changed time limit for filing an application to intervene. The latter amendment requires you to take immediate action in case you want to intervene in a complaint.
We have the corresponding publication, which we now present as HTML:
INTERNATIONALE GEWERKSCHAFT IM EUROPÄISCHEN PATENTAMTSTAFF UNION OF THE EUROPEAN PATENT OFFICE
UNION SYNDICALE DE L'OFFICE EUROPEEN DES BREVETS
Zentraler Vorstand
Central Executive Committee
Bureau central
3 August 2023
su23034cp 0.2.1 – 5.1
Report on the meeting with the Judges of ILOAT and changes to the Rules of ILOAT
On 4 May 2023 the Judges of the Administrative Tribunal of the ILO (the Tribunal) met with “stakeholders” of all organizations within the Tribunal’s jurisdiction. Two representatives of SUEPO, as well as some lawyers who frequently represent SUEPO before the Tribunal, took part in this meeting in Geneva.
The “stakeholders” were given an opportunity to express their views and to make suggestions directly to the Tribunal in relation to its functioning or its case law. The members of SUEPO and their associated lawyers extensively took this opportunity to raise different issues. Some guidance for complainants was given by the President of the Tribunal and the operation of the Tribunal as well as the role of the resident Judge was explained (see “Summary of the meeting” below).
During the meeting the President of the Tribunal also announced important changes to the Rules of the Tribunal, which were subsequently published on 11 May 2023 and entered into force at the very day. The most important changes are summarized below and requires to take immediate action in case you want to intervene in a complaint (see “Changes to the Rules of the Tribunal”).
Finally, the President of the Tribunal expressly pointed out, that the internal appeal bodies misunderstand their function: while the Tribunal cannot review discretional decisions, the appeal bodies should review such decisions based on the wide discretion they have.
1. Summary of the meeting
• Operation of the Tribunal; role of the resident Judge
According to the President of the Tribunal, Mr Michael Moore, a reporting Judge is in charge of reading the case and providing all details as well as a first draft opinion. Only the facts are prepared by an assistant of the Judge. The draft opinion is sent back to the Registrar, who is also responsible for the investigation of further facts or carrying out a further search, if requested. The decisions are taken during one of the subsequent sessions by all Judges assigned to the case. Although there are sometimes different opinions, traditionally no dissenting opinion is written. The cases are assigned by the President to the Judges according to case load and availability.
At present, Mr Patrick Frydman acts as resident Judge. As the Judges meet only twice the year, the resident Judge is responsible for the case management and the increasing numbers of procedural requests, like requests for an extension of the time limit or requests for the production of documents. He also decides on summary proceedings if the complaint is considered manifestly irreceivable. He takes such decisions on behalf
of the President. Moreover, he is responsible for the translations of the decisions, which is not always easy as the judicial systems do not always match.
Some of the issues addressed during the meeting were the following:
• Moral damages
With an internal appeals body which, in essence, was dysfunctional for several years and the resulting delays until a legally binding decision is reached, the moral damages awarded are considered not appropriate in most of the cases. Also, the procedure in front of the Tribunal can take several years without any possibility of acceleration.
The President of the Tribunal referred to the jurisprudence of the Tribunal in that moral damage is awarded for, inter alia, stress and psychological harm, and the effect of the delay as well as the subject-matter of the complaint is taken into consideration when awarding moral damages. He stressed, that the effect of the delay on the complainant must be developed in the pleas, which many of the complainants fail to do.
• Costs
The costs awarded by the Tribunal if a complaint is won often do not cover the actual costs incurred most of the times. As lawyers have to make a risk assessment when advising their clients, they sometimes must advise against filing a complaint in cases that are of significant importance for the employee but do not usually involve financial compensation – like appraisal reports.
One legal adviser of an organisation enquired the Tribunal’s position of awarding costs against the complainant in cases where the complaint is manifestly irreceivable.
The President of the Tribunal recalled, that the Tribunal has the power to award costs against the complainant and that, on the other hand, in important cases several thousand Euros are awarded for costs if the complainant succeeds. Again, he stressed the importance to provide a full justification for the amount of costs claimed.
He, however, acknowledged that there is a disparity in some cases and that the Judges of the Tribunal would be open for suggestions.
• Application for the suspension of a decision
At present, there is no possibility to apply for a suspension of an organisation’s decision before the Tribunal until a legally binding decision is taken, not even in severe cases like dismissal or transfer of an employee. Even the President of the Tribunal acknowledged that this is seen as problematic since sometimes it can take a couple of years until a complaint can be filed with the Tribunal and some of the damages cannot be remedied. The President of the Tribunal passed the ball to Staff Representations and Unions of the Organisations by calling on them to influence the Organisations to accept according amendments to the statute of the Tribunal.
• Filing of mass complaints As the system in front of the Tribunal is an individual one, many similar complaints are often filed when important changes are made to the terms and conditions of employment (mass complaints). This consumes a lot of time and resources on the part of the staff as well as on the Tribunal’s part. A possible streamlining of the process was discussed. One of the lawyers of SUEPO proposed to have one lead complainant who files the complaint brief as well as all common annexes. All other complainants then only have to file the form as well as their individual annexes. The Registrar of the Tribunal stressed, that in
such a case the same complaint brief without amendments has to be filed by all complainants.
Meanwhile the Tribunal has published some advice on filing a mass complaint which, in essence, follows the proposal of the SUEPO lawyer.
However, as also discussed during the meeting, filing of individual inputs to the complaint brief should be possible.
• Procedural issues
- At present, a conversion to electronic filing is not planned. However, the changes introduced at corona times will be continued. They allow the parties to file their submissions by email first. The date of filing is the date on which the electronic version is received by the Tribunal.
- The lack of information on the expected duration of the proceeding was criticised. Even after the surrejoinder has been filed, no notice is given as to when the case will be treated. According to the President of the Tribunal, usually the cases are processed in the order in which they are filed. However, cases which are considered being urgent, like cases concerning dismissal, would be treated earlier.
- In view of the absence of oral hearings, one lawyer of SUEPO proposed, that at least some guidance in writing should be given to the parties, for example indications if certain points have not been addressed or if new developments or judgments have emerged after the surrejoinder. The President of the Tribunal confirmed that hearings are usually not held. He indicated that the Tribunal might consider the suggestion.
- The publication of statistical data, like the mean processing time, the backlog, etc. was requested.
2. Changes to the Rules of the Tribunal
While several Articles of the Rules have been changed (the complete list can be found here), two changes are of particular importance for staff:
• Limitation of the number of pages for all submissions (Article 9 and Annex 1 of the Rules): the complaint brief and the defendant's reply must be limited to 25 pages; the rejoinder and the surrejoinder must not exceed 10 pages. According to the President of the Tribunal this serves to concentrate on the truly relevant subject-matter. Whether this is compatible with the right to be heard remains to be seen.
• Applications to intervene: The time limit for filing an application to intervene has been changed to sixty days following the date on which the organization's reply to the complaint is received by the complainant (Article 13(1) of the Rules). As no transitional measures have been defined, it is not clear, how this will be handled for complaints already pending before the Tribunal and for which the rejoinder or even the surrejoinder have already been submitted some time ago.
Since there should not be a retroactive adverse effect, the date of the publication of the new Rules, the 22 May 2023, could potentially be taken for triggering the time limit for filing an application to intervene. This time limit ends on 20 August 2023. We therefore advise all colleagues who considered filing an application to intervene to respect that deadline, and call on all complainants, who consider their case to be relevant for other staff, to immediately get in touch with us.
A lot of time has passed since then, but it's never too late to dissect what happened and document these issues, especially when we enjoy the spare time, afforded by an extended holiday period. █