activity report - ilo

Activity Report 1 July 2016 – 31 December 2017

Joint Advisory Appeals Board

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Activity Report of the Joint Advisory Appeals Board – 1 July 2016–31 December 2017 iii

Message from the Coordinating Chairperson

This activity report for the Joint Advisory Appeals Board (JAAB) covers the period from 1 July 2016 to 31 December 2017. Throughout that period, Ms Carmen Sottas served as the Coordinating Chairperson for the JAAB. She completed her second term of office as JAAB Co-Chair in May 2018, leaving behind a strong record of accomplishment. On behalf of the JAAB, its Co-Chairs, panel members and secretariat, I offer our sincere thanks to her for her six years of devoted service.

As part of the ILO’s internal dispute resolution system, JAAB deliberations are clearly framed by ILO staff regulations, collective agreements between the administration and the staff union, and the jurisprudence of the Administrative Tribunal of the ILO. JAAB’s specific recommendations propose measures of redress based on the facts of individual cases in order to provide just outcomes for staff members whose grievances are founded. Yet, the flexibility accorded the JAAB enables the Board to offer general recommendations as well, when the circumstances highlighted by individual cases call for broad remedies.

During the period covered by this activity report, JAAB’s general recommendations (enumerated in paragraph 107 of the present report) have included proposals for concrete measures to ensure equity and consistency in the application of ILO rules and procedures in a number of fields. Of particular interest were four cases, which drew attention to the need to review the sanctions available to the Office in the event of staff misconduct, and notably to ensure that disciplinary sanctions be proportionate to the degree of misconduct. It appeared to the JAAB that intermediate sanctions between reprimand/censure and discharge/summary discharge should be adopted.

A recurring concern of the JAAB, highlighted once again in the current reporting period, has been to ensure that internal investigative processes are carried out in accordance with the general principles of law, the Tribunal’s case law and the standards applicable in United Nations system organizations. The JAAB welcomed the Office’s commitment, expressed in the Chief Internal Auditor’s report of 31 December 2016, to improving the investigative processes, and noted IAO’s target date for the introduction of standard operating procedures in 2018. We await confirmation of the adoption of such procedures, urge their publication and look forward to their uniform and consistent implementation.

When one reviews the nature of the appeals filed with the JAAB during this reporting period, it is striking to note that two categories of cases – advancement & promotion and recruitment & selection accounted for 62% of the cases submitted to the JAAB for examination. This clearly signals staff members’ willingness to challenge decisions affecting their career progression that are perceived to be unfair or that have failed to scrupulously observe the procedures laid out, notably, in the Collective Agreement on a Procedure for Recruitment and Selection. The preponderance of cases in these two categories should be seen as a call for the Office to exercise the greatest possible rigour in the application of agreed procedures.

iv Activity Report of the Joint Advisory Appeals Board – 1 July 2016–31 December 2017

It has been gratifying to see the Director General’s acceptance of a number of JAAB’s general recommendations and the steps taken by the Office toward their implementation, whether in terms of standardizing investigative procedures, suspension of a circular, codification of mission status entitlements, or the drafting of vacancy notices. The JAAB can only regret, however, that in other areas, signs of progress are not yet apparent, notably with regard to the rules governing lump-sum payments for home leave travel, or the publication of information on the role and function of the Reports Board.

The 18-month period covered by this Report has been marked by exceptionally effective and productive work. Thanks to an excellent secretariat, well-staffed to meet the challenge of a backlog that had grown from 2014 onwards, as well as to panel members able and willing to make themselves available to hear an unprecedented number of cases, the JAAB saw an increase of more than 25% in the number of grievances examined and reports submitted. I wish to thank all those whose tireless efforts have contributed to the thoroughness and integrity of the JAAB review process and to the search for just outcomes, which protect the rights and interests of ILO staff and of the Office.

Ann Herbert

Coordinating Chairperson

24 January 2019

Activity Report of the Joint Advisory Appeals Board – 1 July 2016–31 December 2017 v

Contents

Page

Message from the Coordinating Chairperson ........................................................................ iii

I. Introduction .................................................................................................................. 1

II. Subjects of Grievances and Recommendations of the Board ....................................... 1

Advancement and promotion ....................................................................................... 2

Role of the IRG ................................................................................................... 2

Job grading for staff employed by ISSA ............................................................. 2

Personal promotion and step calculation upon promotion .................................. 3

Follow-up given to recommendations on advancement and promotion ............. 3

Contract qualification ................................................................................................... 4

Follow-up given to recommendations on contract qualification ........................ 5

Disciplinary procedures and investigations .................................................................. 5

Grading of disciplinary sanctions ....................................................................... 6

Role of the Committee on Accountability and its interaction with IAO ............ 6

Review of investigative processes and disciplinary procedures in the Office .... 6

Follow-up given to recommendations on disciplinary procedures and investigations ................................................................................................ 6

Employment post-retirement ........................................................................................ 8

Extension of contract beyond retirement age ...................................................... 8

Early succession planning ................................................................................... 8

Follow-up given to recommendations on employment post-retirement ............. 8

Financial benefits.......................................................................................................... 9

Mission status entitlement ................................................................................... 9

Payment of home leave travel ............................................................................. 10

Removal expenses upon termination .................................................................. 10

Salary advances ................................................................................................... 11

Local salary surveys ............................................................................................ 11

Follow-up given to recommendations on financial benefits ............................... 12

Harassment ................................................................................................................... 13

vi Activity Report of the Joint Advisory Appeals Board – 1 July 2016–31 December 2017

Page

Legal and procedural issues ......................................................................................... 13

Clear applicable law and error-free communications of the Office .................... 13

Scope of review of the Board .............................................................................. 13

Standing and cause of action of Staff Union Representatives ............................ 14

Granting of moral damages for delays in the grievance process ........................ 15

Performance management ............................................................................................ 15

Follow-up given to recommendations on performance management ................. 16

Reassignment ................................................................................................................ 16

Management of personnel files and compliance with applicable rules .............. 16

Equal treatment ................................................................................................... 17

Recruitment and selection ............................................................................................ 17

Transparency, equal treatment and good faith .................................................... 17

Feedback to unsuccessful candidates .................................................................. 18

Geographical diversity ........................................................................................ 19

Termination of appointment ......................................................................................... 19

III. General Recommendations of the Board ...................................................................... 20

IV. General Grievance Statistics......................................................................................... 22

Grievances submitted to the Board during the reporting period .................................. 22

Grievances reviewed by the Board during the reporting period................................... 23

Origin of grievances reviewed ............................................................................ 23

Outcomes of grievances reviewed ...................................................................... 24

Pending cases over the reporting period ....................................................................... 25

V. Grievances filed with the Administrative Tribunal of the ILO .................................... 25

VI. Secretariat and Membership of the Board .................................................................... 26

Co-Chairpersons ........................................................................................................... 26

Outgoing Board members............................................................................................. 27

Renewed appointments ................................................................................................. 27

Incoming Board members ............................................................................................ 27

Activity Report of the Joint Advisory Appeals Board – 1 July 2016–31 December 2017 1

I. Introduction 1. The Joint Advisory Appeals Board (the Board) is pleased to report once again to

the Joint Negotiating Committee (the JNC) on activities undertaken and to present general trends concerning appeals and the reports submitted by the Board to the Director-General.

2. Whilst the previous report covered 1 January 2014 to 30 June 2016, this activity report covers 1 July 2016 to 31 December 2017. This report has been drafted with a view to providing a comprehensive overview of the grievances submitted to the Board and the ensuing recommendations made by the Board during the reference period.

3. This activity report is presented as follows:

x Subjects of Grievances and Recommendations of the Board (Section II). This section provides a summary of grievances submitted, Board recommendations, subsequent decisions taken by the Director-General and any follow-up made to Board recommendations.

x Summary of General Recommendations (Section III)

x General Grievance Statistics (Section IV)

x Grievances brought before the Administrative Tribunal of the ILO (Section V)

x Secretariat and Membership of the Board (Section VI)

II. Subjects of Grievances and Recommendations of the Board 4. The primary role of the Board is to make recommendations to the Director-General

on individual grievances in order to enable the latter to make a reasoned final decision with full knowledge of the facts.

5. The grievances examined by the Board raised a variety of issues and subjects. A summary of the appeals examined by the Board during the period under review are listed below and grouped by subject matter:

x Advancement and promotion

x Contract qualification

x Disciplinary procedures and investigations

x Employment post-retirement

x Financial benefits

x Harassment

x Legal and procedural issues

x Performance management

x Reassignment

x Recruitment and selection

x Termination of appointment

2 Activity Report of the Joint Advisory Appeals Board – 1 July 2016–31 December 2017

Advancement and promotion 6. During the period under review, three cases relating to the role of the Independent

Review Group (IRG) were examined. The Board examined two cases related to job grading procedures for staff employed by the International Social Security Association (ISSA). The Board examined one case relating to personal promotion, as well as one case relating to step calculation upon promotion.

Role of the IRG 7. In one case, the Board recommended that the terms of reference of the IRG be

reviewed, so as to ensure that at least one panel member has relevant technical knowledge or work experience in the same field as the position being reviewed for grading.

8. In a second case relating to a job grading request, the Board found that the Appellant’s career history had systematically been either poorly or wrongly recorded. Consequently, his career evolution had been gravely hindered by this failure, as had been pointed out on two separate occasions by the IRG. The Board noted that this had caused the Appellant to feel dissatisfied and frustrated and to believe he had been treated unfairly. In this case, the Director-General endorsed the Board’s conclusions and enjoined the Human Resources Development Department (HRD) to make all necessary corrections in the Appellant’s personnel file. In addition, the Board made a general recommendation regarding the importance of error-free personnel record keeping, as any error or omission in an administrative file necessarily impacts an official’s career.

9. In a third case, the Board found that the IRG’s review of the grading appeal was incomplete and substantially flawed in the following ways: the IRG limited its review to only a few, rather than to all of the factors of the relevant job grading matrix; clearly mistaken conclusions were drawn by the IRG regarding the level of some of the Appellant’s tasks; and the IRG failed to take into account material facts, such as the Appellant’s job description and latest performance appraisal. The Director-General agreed with the Board that the job grading procedure had not been properly conducted, and requested that the IRG review the Appellant’s grading appeal afresh. 1

Job grading for staff employed by ISSA 10. In a first case concerning a job grading request made by a staff member

employed by ISSA, the Board found that although the Protocol to amend the Agreement between the ILO and ISSA of 28 August 1997 led to all ISSA staff being employed under the terms and conditions applied to ILO technical cooperation staff, ISSA staff members remained entitled – in application of article 3 of the founding agreement between the ILO and ISSA of 7 February 1992 – to benefit from job grading procedures applicable to officials other than technical cooperation project staff. Therefore, they remained fully entitled to benefit from the application of Circular no. 6/639 (Rev.2) Job grading procedure of 31 August 2005. It follows that insofar as footnote no. 2 of this circular expressly excludes staff under technical cooperation contracts from the job grading review process, it is contrary to article 3 of the agreement between the ILO and ISSA of 7 February 1992 and should be reviewed.

1 Procedure referred to in Circular no. 6/639 (Rev.2) Job grading procedure of 31 August 2005.


11. In a second case, the Board reiterated the above with a view to underlining that clarifications were required regarding job grading procedures and job descriptions applicable to ISSA staff.

Personal promotion and step calculation upon promotion 12. In a case concerning personal promotion, which called into question the

application of the mobility criterion referred to under paragraph 4 of article 6.8.2 of the Staff Regulations, the Board noted that although the Administrative Tribunal of the ILO (the Tribunal) had declared in Judgment no. 3322 of February 2014, that Circular no. 6/625, which suspended the application of the mobility criterion, was illegal, this circular still appeared on the ILO Intranet page Internal Governance Documents Systems (IGDS) as “active”. In the Board’s opinion, this created confusion for ILO staff, who were led to believe that the circular was still applicable. The Board therefore recommended that the Director-General cancel Circular no. 6/625 without further delay.

13. In a case concerning step calculation upon promotion, the Board found that when the Appellant was awarded a promotion upon his transfer from a regional office to headquarters, article 3.4 of the Staff Regulations, which sets out the manner in which steps are awarded when officials are promoted to a higher grade, was properly applied. The Board determined that step calculation upon promotion was not affected by an official’s previous experience, nor was it affected by the fact that salary scales for general staff in regional offices are comparatively lower than that of general staff at headquarters. The Board therefore concluded that the Appellant had not been discriminated against, nor had he been treated differently to other staff in a similar situation as his.

Follow-up given to recommendations on advancement and promotion

14. Circular no. 6/625: the Board has noted that its recommendation regarding the cancellation of Circular no. 6/625 appears to have been implemented, as on the IGDS intranet page, the status for this circular is “archived”.

15. Delays: In its previous activity report, the Board noted that a new coordinator for the IRG had been appointed. Since then, the Board has observed improvements with respect to delays stemming from the IRG review process. Nonetheless, certain job grading appeal processes remain excessively long. In this respect, the Board refers to one case where an Appellant withdrew his grievance, as he was assured by Director, HRD that he could expect the IRG to consider his case by a given date. Nonetheless, the Appellant informed the Board a year later that an IRG recommendation was still pending. Thus, the Board finds that the Office demonstrated a lack of commitment and fell short of its duty of care.

16. The Board has continued to recommend the award of moral damages owing to delays in the job grading appeal process (2,500 Swiss francs), which has systematically been accepted by the Director-General.

17. The Board has also recommended that if the IRG has to re-examine a job grading appeal, it do so within three months of the Board issuing its report to the Director-General. Failure to act within the given time frame should trigger the award of additional moral damages. The information provided to the Board by an Appellant points to the Office having effectively implemented this recommendation.


Contract qualification 18. Issues relating to the ILO contract policy, such as the need to review all the rules

and practices applicable to staff recruited for technical cooperation projects and contract policy reform negotiations were raised in three preceding activity reports (2011, 2012 and January 2014-June 2016 reports) and remained problematic throughout the current review period.

19. While contract policy reform constitutes an issue in itself, the qualification of contracts has an impact on various other issues such as: (i) selection procedures (direct selection vs. competition); (ii) titularization exercises; and (iii) job grading.

20. Several grievances concerning contract qualification were submitted by the Staff Union Committee. The Board found that in some cases, the Office had made an inappropriate use of technical cooperation contracts.

21. As contract qualification remains a political issue that falls under negotiations between the Office and the Staff Union, the Board urged both parties to prioritize negotiations on contract policy and provide greater clarity with regard to proper recruitment processes and the correct setting of its working conditions, particularly in respect of staff assigned to programme support income (PSI) funded positions, staff assigned to technical cooperation projects and ISSA staff.

22. In a first case, the Board found that a vacant post was wrongly qualified as falling under a technical cooperation project, because the job description and corresponding tasks and duties were not related to performing technical cooperation activities. Hence, the Board considered that the method of recruitment and selection used to fill the position was not appropriate. In his final decision, the Director-General took due note of the Board’s observations concerning the need for clarity and rigour regarding qualification of vacant PSI funded positions and the Board’s wish that current negotiations to adopt an appropriate and sustainable contract policy in the ILO meet with success.

23. In a second case, the Board dealt with the implications contract qualification has on the award of without-limit-of-time (WLT) contracts. The Board noted that paragraph 3 of Circular no. 452 (Rev.1), Rules and procedures for titularization, of 8 April 1993 explicitly excludes certain categories of staff from its scope of application: officials in Branch Offices and National Correspondents, whose conditions of service are defined under separate rules; technical cooperation project staff; staff recruited for work of a purely temporary nature; and officials whose contracts of employment specifically exclude expectation of a career with the Organization. Nonetheless, the Board found that if staff have wrongly been awarded any one of the aforementioned contracts that are excluded from the scope of the said circular, they should be given special consideration during the titularization exercise. In his final decision, the Director-General took due note of the different issues raised in the Board’s report and agreed that they should be addressed within the JNC as a matter of priority with a view to ensuring transparency, legal certainty and good internal governance. The Director-General invited the Staff Union and the Deputy-Director of Management and Reform to meet without delay and continue discussing contract policy issues.

24. A third case challenged the grading of a vacant position within ISSA and the manner in which the position was filled. Although the Board found no flaw in the impugned job grading and recruitment processes, it did however recommend that


the Director-General clarify and specify the procedures applicable to the grading of jobs and the drafting of job descriptions of ISSA staff. In his final decision, the Director-General took due note of the Board’s recommendation on the general issues raised as regards procedures applicable to ISSA staff.

Follow-up given to recommendations on contract qualification

25. To date, despite the Director-General having generally agreed with the Board’s recommendations regarding the ILO’s contract policy, the Board is not aware of any steps having been taken towards prioritizing discussions on contract policy, nor has it seen any move to clarify and improve the application of existing legal provisions relating to contract policy.

Disciplinary procedures and investigations 26. During the period under review, four cases regarding disciplinary sanctions and

investigations were examined. In each case, the Board examined the legality and appropriateness of the sanctions (discharge or summary dismissal) imposed on the Appellants.

27. In three of the disciplinary cases reviewed, a fact-finding investigation was carried out by the Office of Internal Audit and Oversight (IAO), who established a report (IAO report) on each case. The IAO reports were then submitted to the Committee on Accountability (CA), whose prerogative it is to review cases of fraud, dishonesty, negligence or disregard of established Office procedures which resulted or could have resulted in financial or other loss to the Office. The CA subsequently reported its findings to the Director-General through the Treasurer (CA report). The Board found that the investigation processes followed varied from one case to another, thus calling into question the principle of equal treatment among officials. Namely, the IAO reports and CA reports were not systematically provided to the Appellants for information or comment, and when they were, it was at different stages of the procedure.

28. In these three cases, the Board concluded that although the Appellants’ alleged misconduct warranted the imposition of a sanction, it considered (unanimously or by majority) that the sanctions of summary dismissal or discharge outweighed the gravity of their acts.

29. In the fourth case, the IAO was not involved, as the events which led to the application of a disciplinary sanction occurred in the private sphere. The Board considered that the Office failed to demonstrate how the Appellant, whose conduct in the professional sphere was not called into question, had compromised the Office’s image or interests within the meaning of paragraph 42 of the Standards of Conduct of the International Civil Service 2 and hence, amounted to a “failure to observe the standards of conduct required of an international civil servant” as referred to under article 12.1(2) of the Staff Regulations.

30. In this fourth case, the Board questioned the material and comprehensive exactitude of the facts, which served as the basis to impose the sanction of

2 “The private life of international civil servants is their own concern and organizations should not intrude upon it. There may be situations, however, in which the behaviour of an international civil servant may reflect on the organization. International civil servants must therefore bear in mind that their conduct and activities outside the workplace, even if unrelated to official duties, can compromise the image and the interests of the organizations. […]”.


discharge. Consequently, the Board recommended that the Director-General reconsider the level of the sanction imposed.

31. Based on the administrative errors, shortcomings and other irregularities found in all four cases mentioned above, the Board made the following general recommendations:

Grading of disciplinary sanctions 32. The first and foremost recommendation concerns the grading of disciplinary

sanctions. In all four reports, the Board addressed the urgent need for the Office to adopt a broader range of sanctions than those currently foreseen under Chapter XII of the Staff Regulations. The Board recommended that the Director-General adopt intermediate sanction(s) between reprimand/censure and discharge/summary dismissal, as is already the case in other national and international civil service organisations, with a view to ensuring proportionality of the disciplinary sanctions to the degree of misconduct. The Board considered that misconduct varied greatly in gravity and summary dismissal (or to a lesser extent the sanction of discharge) should be applied only to the gravest cases.

33. The Board also recommended that the Director-General ensure that sanctions be imposed in a coherent manner, i.e. a given nature of misconduct should lead to a given type of sanction, thereby ensuring that the principle of equal treatment is abided by.

Role of the Committee on Accountability and its interaction with IAO 34. The second recommendation was of a procedural nature. As seen above, the Board

found that the manner in which investigations were conducted varied, thus resulting in unequal treatment. The Board recommended that the Director-General clarify the process of investigation and examination conducted by the Committee on Accountability and define more precisely the respective roles and mandates of the Committee and of the IAO, in particular when both bodies are involved.

Review of investigative processes and disciplinary procedures in the Office 35. More generally, the Board found that the investigative processes and disciplinary

procedures currently in force in the Office are deficient and lack an appropriate framework.

36. The Board stressed the need to review the whole disciplinary process currently in force in the Office, with a view to ensuring that ILO staff benefit from a procedure that safeguards both the rights of staff and the interests of the ILO.

Follow-up given to recommendations on disciplinary procedures and investigations

37. The Board notes that in his final decisions the Director-General rejected the Board’s conclusions in the four disciplinary cases reviewed, and the sanctions of discharge and summary dismissal were upheld.

38. The Board notes that since having made recommendations on the role of the Committee on Accountability, the Director-General has issued a new Office Procedure, Anti-fraud and anti-corruption policy, IGDS no. 69 (version 3) effective as of 19 October 2017, which provides under paragraph 25 that “[…] [t]he Committee [on Accountability] shall establish the facts of any case referred to it,


fix responsibility for the loss, if any, and make appropriate recommendations to the Director-General relating to reimbursement, disciplinary action and writing off of losses. An annual summary report of the activities of the Committee on Accountability shall be published on the ILO website.” (Emphasis added).

39. The Board questions whether and to what extent these responsibilities are in line with the ILO Financial Rule 13.30 (a), which provides that “[…] [t]he Committee’s function shall include establishing the facts; fixing the responsibility for the loss, if any; making, where applicable, recommendations relating to reimbursement; referral to the unit responsible for disciplinary matters; and authorizing the writing-off of the loss concerned.” (Emphasis added). Moreover, the Board regrets that the Committee’s role in relation to that of the IAO has not been clarified.

40. In its previous activity report (paragraph 51), the Board noted the Director-General’s request that the IAO prepare proposals to align its rules and practices for conducting investigations with the current standards applicable in United Nations system organizations.

41. In the Report of the Chief Internal Auditor for the year ended 31 December 2016 (presented to the Governing Body in March 2017), the Board noted the Office’s commitment to improve the investigative processes both into financial matters as well as other irregular activities. Reference is made to paragraphs 54 and 55 of that document: 3

“54. In late 2015, the IAO began a review of its investigative methodologies and from this developed a standard operating procedure for investigations. It is currently in draft form and the IAO aims to finalize it during the course of 2017. 55. The standard operating procedure has been developed using the IAO’s working practices, adopting practices used in some other UN organizations as appropriate. The standard operating procedure reflects the guidance contained in Uniform Principles and Guidelines for Investigations, and combines procedures and processes that are in line with ILO regulations.”

42. Nonetheless, a year later the Chief Internal Auditor reported in document GB.332/PFA/7 presented to the Governing Body in March 2018, under paragraph 4 that “[t]he IAO conducts its activities in conformity with the International Standards for the Professional Practice of Internal Auditing of the Institute of Internal Auditors (the IIA Standards) and the Uniform Principles and Guidelines for Investigations as adopted by the Conference of International Investigators of the United Nations Organizations and Multilateral Financial Institutions”. 4 The Chief Internal Auditor added under paragraph 52 regarding the investigative process that:

“52. The IAO is continually reviewing internal investigative processes, where appropriate. A key deliverable is the standard operating procedures which will be introduced in 2018. The IAO has also adjusted the system of classification of fraud and misconduct, taking into account the agreed revised definition of fraud and the revised Anti-fraud Policy [IGDS no. 69 (version 2) of 12 January 2015].”

43. To date, the Board cannot yet discern any improvement or change in either the investigative processes or disciplinary reviews carried out by the Office. The Board awaits confirmation of the adoption of “standard operating procedures”, noting that if they have indeed been introduced in 2018, they have not yet been published, or otherwise brought to attention of staff. In addition, the Board feels concerned by

3 See Report of the Chief Internal Auditor for the year ended 31 December 2016, GB.329/PFA/7(Rev.). 4 See Report of the Chief Internal Auditor for the year ended 31 December 2017, GB.332/PFA/7.


the IAO’s above-mentioned statement that internal investigative processes were “continually” being reviewed. Indeed, the Board has seen that there is an urgent need to adopt a standard operating procedure that would be uniformly and consistently applied to investigative and disciplinary processes. However, the Chief Internal Auditor’s statement gives the impression that the IAO is applying different procedures to different situations, in breach of the principle of equal treatment.

Employment post-retirement

Extension of contract beyond retirement age 44. In four cases, the Board noted that no formal procedure exists in the Office

regarding extensions of contract beyond retirement age, which rely on an internal Minute drafted by CABINET in 2013, which was never brought to the attention of ILO staff. The Board found that the Office had failed in its duty to set and publish legal provisions, rules or administrative measures duly opposable to ILO staff in this regard.

45. In a couple of cases in which the Appellants challenged the fact that their applications to vacant positions had been discarded owing to their being retired, or nearing the age of retirement, the Board found that inserting conditions regarding the eligibility of such staff in vacancy notices was warranted, namely with a view to deterring the recurrence of similar cases and grievances. The Board’s opinion on this point was based on a suggestion that had already been made by the Office of the Legal Adviser and found in the Joint Inspection Unit’s report “Use of retirees and staff retained beyond the mandatory age of separation at United Nations organizations” (JIU/NOTE/2014/1).

46. Therefore, the Board recommended that the Director-General enhance legal clarity in the Office regarding the employment of and applications from officials reaching the age of retirement (or already retired), inter alia by inserting eligibility conditions in vacancy notices and by issuing an Office procedure establishing a policy regarding extension of contracts beyond the mandatory age of retirement, including the applicable administrative procedures.

Early succession planning 47. In addition to the foregoing, the Board observed that if early succession planning

was systematically applied, it would substantially reduce the need for employing retirees. In the Board’s view, it would be advisable to launch the competition process at least 18 months prior to an official’s statutory date of retirement.

48. The Board therefore recommends that the Director-General implement administrative measures and procedures to ensure that early succession planning be carried out in order to reduce substantially the need for extensions of contract beyond the mandatory age of retirement.

Follow-up given to recommendations on employment post-retirement

49. The Board notes that in his final decision regarding one of the above cases, the Director-General stated that “as to the Board’s recommendation that the Office publish a directive on a policy regarding contract extensions beyond the age of


retirement, [he] would examine the opportunity in due course”. 5 Nonetheless, the Board observes that the Director-General did not address this issue in his final decision regarding a second report in which the Board made similar recommendations.

50. However, the Board is satisfied that shortly thereafter, the Director-General “[took] note favourably of the general recommendation of the JAAB, suggesting that upcoming vacancy announcements should contain a clear indication to the effect that serving officials due to retire before the end of 2017 will not be eligible for consideration” and “duly noted the general recommendations of the JAAB on the need for legal clarity with regard to the employment of and applications from officials having reached the statutory age of retirement – all necessary steps are being taken in this respect including the issuance of a new Office circular – as well as on early succession planning”.

51. The Board further notes that since October 2017 (fourth 2017 RAPS exercise) vacancy notices specify in their general introduction that “[a]pplications from officials who have reached, or will reach their age of retirement as defined in Article 11.3 of the Staff Regulations on or before 31 December 2017, or who have already separated from ILO service upon retirement or early retirement, will not be considered.”

Financial benefits

Mission status entitlement 52. The Board reviewed one case that pertained to the scope of application of the

mission status entitlement deriving from Circular no. 6/479, Mobility of Staff between field and headquarters of 15 April 1992, and which aims at compensating an official transferred within the Office to a new duty station for the personal and family inconveniences suffered. The Board noted that “technical cooperation experts” are excluded from the benefit of this entitlement according to paragraph 1 of said circular. However, the Board noted that the Appellant held a WLT appointment (financed under the regular budget) when he was assigned to a technical cooperation project in a regional office (originally for a year). Taking account of the purpose of the mission status entitlement, and insofar as Circular no. 6/479 did not render the entitlement contingent on a particular length of assignment in a regional office, the Board concluded that the Appellant should have benefited from the mission status entitlement.

53. More generally, the Board recommended that staff holding technical cooperation contracts and staff holding WLT appointments be awarded similar benefits and entitlements, insofar as these relate to temporary reassignments or missions.

54. In his final decision, the Director-General rejected the recommendation of the Board on the ground that “[…] the Office practice in this matter, which has now been codified in Office Directive no. 413 (Version 1) of 23 January 2015, Mobility policy within the ILO, has always been contingent on a minimum duration of assignment in the new duty station, and therefore, time-bound technical cooperation assignments […] do not give rise to mission status entitlement.”

5 Original French: «[q]uant à la recommandation du Bureau visant à publier une directive concernant la politique du Bureau en matière de prolongations d’engagement au-delà de l’âge de la retraite, [il] en examinera l’opportunité en temps voulu.»


However, the Board notes that while Office Directive no. 413 clarified the conditions surrounding the mission status entitlement, 6 these entered into force in January 2015 and were therefore not applicable to the Appellant at the material time. Moreover, the Board points out that the Director-General’s statement leads one to understand that all technical cooperation assignments are de facto excluded from the mission status entitlement, when in fact this is not systematically the case.

Payment of home leave travel 55. In one case, the Board found that the method used to calculate the lump-sum

payable to officials in respect of home leave travel (which is based on the full economy-class return airfare of the International Air Transport Association and has been applicable since 2012) could lead to unequal treatment between officials entitled to home leave, depending on the dates of their journey and the place they are travelling to. In the instant case, the Board considered that the lump-sum payment was not only unattractive, but a fortiori did not allow him to pay for the tickets in full economy class. The Board therefore made a general recommendation that the Director-General take into account the particularity of certain home leave destinations, in order to ensure that staff members are treated equally. In his final decision, the Director-General agreed to review the applicable criteria determining the lump-sum payments for home leave travel with a view to identifying and redressing any shortcomings of the current system.

Removal expenses upon termination 56. The Board reviewed a first case regarding removal of household goods and

personal belongings upon termination (article 9.7 of the Staff Regulations). Although this case was dismissed, the Board noted that in its written statements made in respect of the grievance, the Office introduced factual errors concerning the Appellant’s career history. The Board also noted a number of discrepancies and inconsistencies in the wording of legal provisions relating to removal expense claims.

57. In light of its observations, the Board recommended, on the one hand, that the Director-General urge HRD to exercise greater care in referring to an official’s career history in formal communications, and in particular to consult personnel files thoroughly and refrain from introducing factual errors. On the other, as a general recommendation, the Board recommended that the Director-General undertake the following actions: (i) amend Annex III, paragraph 34 of the Staff Regulations so that it correctly refers to the applicable two-year time limit for submitting end-of-service travel and/or removal expense claims; (ii) consider rephrasing the final section of Annex III, paragraph 2(b) of the Staff Regulations as follows: “The Director-General may extend this period provided he first consult the Joint Negotiating Committee.”; (iii) Ensure that all officials or former officials having submitted requests for the extension of the time limit for submitting end-of-service travel and/or removal expense claims are dealt with in a consistent manner by the Office, with a view to guaranteeing due respect of the principle of equal treatment; and (iv) ensure full compliance with Annex III, paragraph 2(b) of the Staff Regulations, namely with regard to the JNC consultation requirement. The Board urged the Office to adopt measures to ensure that the JNC review all requests

6 See under paragraphs 1(e) and 2 of the Annex of the Office Directive no. 431.


for the extension of the time limit for submitting end-of-service travel and/or removal expense claims in an informed and timely manner.

58. The Board reviewed a second case regarding removal of household goods and personal belongings upon termination, in which the Appellant lost all his household goods and personal belongings after they had been entrusted to a removal company. The issue at stake in this case was the extent of the Office’s responsibility as regards the choice of the removal company and the risks linked to removal, as well as the insurance coverage in case of loss or damage. The Board found that the Appellant was not at fault and reversed the burden of responsibility for the loss from the Appellant to the Office. Although this case did not result in a general recommendation, it nonetheless revealed a lack of duty of care of the Office, in particular a lack of communication between internal services, resulting in material damages for the Appellant. The Board recommended that the Appellant be reimbursed the insured value of his goods and awarded moral damages. The Director-General endorsed the Board’s recommendation in his final decision.

Salary advances 59. The Board reviewed a case that pertained to the application of Office Procedure,

IGDS no. 236 (version 1) Salary advances to locally recruited officials serving in the field. The Appellants namely challenged the definition and calculation of an official’s “net salary” that is used as a basis to determine the amount that an official is entitled to should he or she request a salary advance. The Board made the following general recommendations to the Director-General: (i) review and/or clarify the definition of “net salary” as referred to under paragraph 5(a) of said Office Procedure, used to determine emergency salary advance amounts; and (ii) ensure that such definition be uniformly applied without discrimination to all officials concerned. In his decision, while rejecting the grievance as irreceivable, the Director-General found that the method used to calculate emergency salary advances was correct and complied with section 5.1 of the ILO Finance Manual published in March 2017.

Local salary surveys 60. The Board reviewed a case that challenged the implementation of new salary

scales in one of the Office’s duty stations and in particular, the procedural requirements set forth under former article 3.1(e) [currently article 3.1(d)] of the Staff Regulations. The Board found, on the one hand, that the comprehensive salary survey had not been properly conducted, the Board namely pointed to incorrect use and analysis of data. On the other, the Board found that the adoption of the new salary scales was procedurally flawed, namely owing to the JNC not having been consulted. The Board did not advise setting aside the challenged decision, nor declaring salary scales null and void owing to the time elapsed. Instead, it recommended awarding material and moral damages to Appellants and any other staff placed in an identical situation. In his final decision, the Director-General accepted the Board’s recommendation that the Appellants be compensated for moral and any material damages in the same manner as indicated by the Tribunal in Judgment no. 3883.


Follow-up given to recommendations on financial benefits

61. Mission status entitlement: the Board welcomes the fact that the mission status entitlement has been codified in Office Directive no. 413 (Version 1) of 23 January 2015, Mobility policy within the ILO. The Board further notes that according to paragraph 1(e), read in conjunction with paragraph 2 of the Annex of this directive, mission status entitlements now explicitly require a minimum duration of assignment in the new duty station.

62. Lump-sum payments for home leave travel: despite the Director-General’s commitment, the Board observes that Office Procedure, Travel policies and procedures, IGDS no. 437 (version 3) was updated on 16 May 2018, but the wording of the relevant provisions 7 was not changed and the reference to Information Note, Lump-sum option in respect of statutory travel, IGDS no. 267 (version 1) of 17 January 2012 still remains.

63. Removal expenses upon termination: the Board is unaware of the Office having taken any steps to implement the recommendations it made regarding redrafting Annex III of the Staff Regulations so that it correctly refers to the applicable two-year time limit for submitting end-of-service travel and/or removal expense claims.

64. Salary advances and determination of “net salaries”: although the Board welcomes the March 2017 publication of the ILO Finance Manual, it observes that while sections 5.1.2 and 5.1.3 of said Manual define the net income (depending on staff category), section 5.1.4 provides that “[o]nce net pay has been established, the payroll systems also deducts [sic] from the staff member's salary: mandatory deductions […] [and] voluntary contributions […].” While the Board understands that “net pay” (or “net income”) differs from the “net amount payable to staff members” (obtained by deducting mandatory deductions and voluntary contributions from the former), it is not convinced that the specifications clarify or define what a “net salary” includes.

65. Local salary surveys: to date, the Board is not aware of any proposal to amend article 3.1(e) [currently article 3.1(d)] of the Staff Regulations in order to align it with the practice of the Office. Indeed, the wording of this article remains unchanged. The Board regrets having to make the foregoing observation, as it already drew attention to this problematic issue in its two previous activity reports. 8 Notwithstanding the above, the Board points out that its opinion was corroborated by the Tribunal in Judgment no. 3883, under considerations 20 and 21, as the lack of prior JNC consultation amounted to a procedural flaw and a breach of the Office’s duty to abide by the principle tu patere legem quam ipse fecisti.

66. Further to his final decision on the salary survey case, the Director-General eventually considered that in light of Judgment no. 3985, under consideration 8 (concerning the Office’s application for interpretation of Judgment no. 3883), no material damages were owed.

7 See paragraph 20.2.4(l)(iii) of Office Procedure no. 437 (version 3). 8 See paragraph 14 of activity report for 2013 and paragraph 52 of activity report for January 2014 to June 2016.


Harassment 67. The Board summarily reviewed and dismissed two harassment cases during the

reference period as they were clearly irreceivable. These grievances had been submitted after entry into force of the Collective Agreement on Anti-Harassment Policy and Investigation Procedure of 1 January 2015, according to which the Board no longer has the prerogative to review the merits of harassment cases. In keeping with paragraph 17 of article 13.4 of the Staff Regulations the Board may only review grievances submitted on the grounds of harassment if the Director of HRD has decided not to open an investigation.

Legal and procedural issues

Clear applicable law and error-free communications of the Office 68. As seen above, the Board has sought in its reports to address formal issues relating

to the applicable law in the Office and, in particular, the need to update applicable legal texts with a view to avoiding a legal vacuum, eliminating obsolete provisions, establishing a set of rules and procedures on a particular subject-matter or clarifying those that exist. The Board has also drawn the Director-General’s attention to Office errors and its need of guidance, reiterating the importance of clarity in communications from HRD in order to avoid misunderstandings and prevent grievances from arising.

69. In addition to this, during the period under review, the Board also addressed the following two procedural issues.

Scope of review of the Board 70. The Board examined two cases that allowed it to reflect on its scope of review.

The Board namely reasserted the fact that in certain situations, it may examine the merits of grievances even if they do not meet the formal receivability requirements.

71. The Board relied on the case law of the Tribunal according to which “the right of an internal appeal is a safeguard which international civil servants enjoy in addition to their right of appeal to a judicial authority”. The Tribunal further explains that “[t]his is especially true since internal appeal bodies may normally allow an appeal of fairness or advisability, whereas the Tribunal must essentially give a ruling on points of law.” The Tribunal adds that an internal appeals body “plays a fundamental role in the resolution of disputes, owing to the guarantees of objectivity derived from its composition, its extensive knowledge of the functioning of the organisation and the broad investigative powers granted to it. By conducting hearings and investigative measures, it gathers the evidence and testimonies that are necessary in order to establish the facts, as well as the data needed for an informed assessment thereof.” 9

72. The background of the two cases referred to here may be found in Tribunal Judgment no. 3298. In the cases at hand, both Appellants were temporarily transferred, along with other colleagues, from one duty station to another. However, neither of them received the same financial benefits that were awarded to their colleagues (who were granted non-local staff status, whereas the Appellants were granted local staff status). Although the Board declared that both cases were

9 Judgment no. 3424 (under 11).


time-barred, and hence, irreceivable, it nonetheless decided to examine their merits as it was revealed that both Appellants had suffered unequal treatment. Moreover, the Office failed to provide any valid reason that would have justified that the Appellants be treated differently. The Board determined that the Office had breached the principle of equal treatment and recommended that the Director-General grant the Appellants the same conditions and advantages as those that had been granted to their colleagues.

73. These cases clearly illustrate that the scope of review of the Board allows it to recommend that the Director-General take fair and equitable decisions, irrespective of formal procedural or receivability requirements. The Board welcomes the fact that the Director-General upheld the Board’s considerations on fairness and equity and agreed to award the Appellants a lump-sum (covering both moral and material damages) with a view to fully and finally settling their grievances.

Standing and cause of action of Staff Union Representatives 74. The Board addressed the issue of standing and cause of action of staff

representatives in several cases. The Board has systematically followed the Tribunal’s consistent case-law according to which elected staff members of the ILO Staff Union Committee are entitled to file a grievance before the Board to defend:

x the existence of the Staff Union as provided for under article 10.1 of the Staff Regulations;

x the Staff Union’s rights and interests in the exercise of its official duties, or the prerogatives of its members within official bodies (Judgments nos. 1147; 2036; 3544; 3546, under 6; 3671); or

x the individual interests of all or part of the ILO staff represented by the Staff Union in accordance article 10.1(a) of the Staff Regulations.

75. In light of the Tribunal’s case-law, 10 the Board understands the expression “common rights and interests” as “enforceable legal rights and interests derived from terms of appointment or under Staff Regulations which have not necessarily been breached in respect of the member of the staff committee who files a complaint with the Tribunal. […]”. 11 Likewise, the Board considers receivable any grievance filed by elected staff representatives that allege the non-observance, in substance or in form, of terms of appointment or the Staff Regulations. 12

76. During the reference period, the Board systematically followed the above approach when dealing with grievances filed by ILO staff representatives.

77. The Board notes, however, that the Director-General rejected all but two of the grievances filed by elected staff representatives for lack of a cause of action, on the grounds that the Appellants failed to challenge the non-observance of a right conferred on them by the Staff Regulations.

10 Judgments nos. 2649 (under 8); 2652 (under 10); 3115 (under 3); 3342 (under 10); 3449 (under 3). 11 Judgment no. 3449 (under 3) [emphasis added]. 12 Judgment no. 2919 (under 8) [emphasis added]. See also Judgment no. 3342 (under 12).


78. The Board notes that the Director-General relied on recent Tribunal Judgments (nos. 3642, under 14, and 3885, under 4) that are slightly more restrictive than earlier case law as regards the receivability of cases submitted by staff representatives. Notwithstanding any regrets the Board may have as regards the Tribunal’s more recent position that renders more fragile elected staff members’ rights, the Board certainly regrets the Director-General’s decision to reject the grievances on this basis. Indeed, as seen above the scope of review of the Board is far broader than that of the Tribunal, and the fact that the Tribunal may not review a grievance does not necessarily mean that the Board may not review it.

Granting of moral damages for delays in the grievance process 79. According to the Staff Regulations, 13 the Board is expected to address its report to

the Director-General within three months of the conclusion of the written submissions by the parties, except where exceptional circumstances require a longer time frame. For the reasons given in the previous activity report, a backlog in the processing of cases started to build up in 2014. In 2015, the number of grievances submitted to the Board more than doubled as compared to submissions of previous years (43 versus a previous annual average of 20). The backlog of pending cases peaked in the first quarter of 2016 (49 pending cases) and has been gradually receding since then. Nonetheless, all cases reviewed by the Board during the period under review were affected by the backlog, and none were examined within the statutory time limits.

80. The Board has been recommending to the Director-General that 2,500 Swiss francs in moral damages be granted to Appellants due to delays in processing their grievances.

81. In 15 cases the Board recommended that the Appellants be awarded moral damages in lieu of redress for the delay in reviewing their case. The Director-General consistently followed this recommendation in all but one case, irrespective of whether he endorsed the Board’s recommendation on the merits of the case. In addition, in one instance, although the Board did not recommend the award of moral damages for the delay in the internal review process, the Director-General nonetheless decided to award the Appellant 2,500 Swiss francs on this ground.

Performance management 82. In its two previous activity reports, the Board addressed the issue of performance

management with a view to duly protecting staff from the potential consequences of irregular, late or missing performance appraisals. The Board also reminded the Office of its responsibility to provide staff with objective performance appraisals.

83. During the period under review, the Board dealt with a performance management issue from a procedural aspect, in a case where the Appellant’s contract was not renewed beyond the probationary period on the grounds of unsatisfactory services. In this particular case, the Board heard the Secretary of the Reports Board, who asserted that a formal guide on the role and functioning of the Reports Board was being drafted and was due to be published shortly.

13 Annex IV, paragraph 17 of the Staff Regulations.


84. The Board agreed that it would be in the interest of ILO staff members that formal internal procedures for the Reports Board (which are not generally published) be made available. The Board’s concerns not only referred to the composition of the Reports Board, but also the nature and scope of its proceedings.

85. The Board therefore recommended that the Director-General ensure that the Reports Board establish and issue clear and concise rules of procedure and that HRD publish a clear guide on the role and functioning of the Reports Board in order to improve transparency in the overall performance management framework.

86. In his final decision, the Director-General said he had “duly noted the recommendation of the JAAB aimed at improving the transparency of the overall performance management framework, and is satisfied that information on the role and functioning of the Reports Board will be published shortly”.

Follow-up given to recommendations on performance management 87. As regards the general recommendation that the name of the officials assigned to

examine a case in the Reports Board be systematically shared with the officials concerned, which was addressed in its last activity report (paragraph 12), the Board remains unaware of the Director-General’s position, or of any steps undertaken in this regard further to his decision to address the matter separately.

88. The Board notes that the names of the Reports Board members are made available on the intranet (update June 2017). 14

89. However, there is no indication as to whether the specific composition of the Reports Board (at least four members) is systematically provided to the official concerned by a recommendation of the Reports Board. In addition, the Board is not aware of the Reports Board having adopted a comprehensive set of written rules, nor of a formal guide on its role and functioning.

Reassignment

Management of personnel files and compliance with applicable rules 90. The Board reviewed a case in which the Appellant requested a job grading review

after having been transferred to a new unit. Although the Appellant changed jobs, he was not provided with a new job description and his personnel file was not properly updated with the relevant job change data. Moreover, the Board found that the information recorded in the Appellant’s personnel file was incomplete and contained erroneous data, which may have been prejudicial to the development of his career. Therefore, the Board recommended that the Director-General ensure that clear rules and procedures be set in the Office regarding the listing and ordering of any administrative actions to be undertaken when an official is reassigned. The Board namely recommended that officials be formally notified of any transfer or change in their duties and be provided with the corresponding job description. The Board also recommended that the foregoing notifications be duly registered and that departmental organigrams be duly kept up-to-date.

14 See https://www.ilo.org/dyn/hrd/intranet.view_page?p_lang=en&p_id=365


91. While the Board recommended dismissing the grievance in a case related to reassignment, it nonetheless made the following general recommendation that the Office should not enter into ad personam agreements that do not comply with applicable rules and statutory provisions.

Equal treatment 92. In two cases, the Board examined the situation of two officials, temporarily

reassigned with other colleagues from the same duty station to other ones, but who were not awarded the same advantages as their colleagues (background situation found in Judgment no. 3298 of the Tribunal). While the cases were considered irreceivable, the Board determined that both Appellants suffered from unequal treatment, which the Office could not validly justify. As seen above (paragraphs 70-73), the Board recommended that the Director-General consider the merits of both cases on the grounds of fairness and equity, and namely grant the Appellants the same conditions and advantages as those granted to their colleagues. While acknowledging the irreceivability of the cases, the Director-General nonetheless agreed with the Board’s recommendations and awarded the Appellants an exceptional lump-sum payment as full and final settlement of their grievances.

Recruitment and selection 93. During the period under review, the Board examined a number of cases regarding

recruitment and selection procedures and issued a final report in nine cases. The three main issues raised in the recruitment and selection grievances, detailed below, were (i) transparency, equal treatment and good faith; (ii) feedback to unsuccessful candidates; and (iii) geographical diversity.

94. As a preliminary remark, the Board observes that where it found that the grievance was founded and recommended that the outcome of the disputed selection process and appointment decision be set aside, the Director-General followed the Board’s advice. The same applied in cases in which the Board dismissed appeals as devoid of merit.

Transparency, equal treatment and good faith 95. A first case, which was brought forward by the Staff Union, concerned a selection

procedure that was flawed owing to an error in the vacancy notice that misled applicants to understand that the position would be filled following a competition, whereas, direct selection was in fact the chosen method to fill the position. The Board noted that although HRD had acknowledged the error and had notified applicants that the vacancy was being withdrawn and the recruitment process cancelled, HRD decided nonetheless to make an appointment. The Board found that HRD’s actions, which resulted in an appointment being made following a manifestly flawed recruitment process, evidenced that the Office had acted unlawfully and had failed to act in good faith or in a transparent manner. The Board recommended that the impugned appointment be set aside and that in the future, HRD refrain from using such methods.

96. In his final decision, and in line with Judgment no. 3449 of the Tribunal, the Director-General stressed that all vacancy notices would henceforth be reviewed to ensure that there was no ambiguity as regards the chosen method to fill vacancies. The Board regrets, however, that while the Director-General recognised that the


impugned selection process was irregular, and that the manner in which it had been carried out lacked rigour and clarity, 15 he did not consider there to have been a breach of good faith, nor did he agree to setting the impugned appointment aside.

97. In two other cases, the Board reviewed the need for transparency in the assessment of candidates. In both cases referred to here, the Board found procedural flaws in the impugned selection processes owing to lack of transparency, unequal treatment among candidates and denial of a fair opportunity to compete. In both these cases, the Director-General followed the Board’s unanimous recommendation that the outcome of the disputed selection processes and the appointment decisions be set aside. In his final decisions, the Director-General assured the Appellants that the Office attached the greatest importance to transparency, fairness and equal treatment among candidates, and accordingly assured the Appellants that all due care would be taken to avoid similar failings in the future.

98. In a fourth case, the Board deemed it necessary to point out the numerous errors and inconsistencies revealed further to examining the competition file, notably in the consolidation of scores and weighting of evaluation criteria. The Board found it striking that so many errors had occurred, which left the impression that procedures were not transparent but rather were conducted in a biased manner. The Board therefore recommended that the Director-General take appropriate measures to avoid calculation errors or discrepancies in technical assessments.

99. Another matter related to transparency concerned the eligibility of retired officials and those nearing the age of retirement. As previously stated, the Board found that inserting eligibility conditions in vacancy notices for retired officials or those due to retire was warranted.

Feedback to unsuccessful candidates 100. Two cases reviewed by the Board highlighted the importance of providing clear

and objective feedback to unsuccessful candidates. In a first case, the Board recommended that the Director-General ensure that appropriate feedback, whether oral or written, be provided to unsuccessful candidates.

101. Similarly, in a second case, the Board regretted that the Office (Resourcing Unit and HRD) did not clearly indicate the reasons why the Appellant’s application was not retained at the second stage of the recruitment procedure (Identification of opportunities for filling vacancies by transfers in the same grade or through mobility). The Board also regretted that the Office did not provide him with an assurance that the process was duly followed. The Board therefore recommended that the Director-General instruct the Resourcing Unit to duly address requests for feedback from unsuccessful candidates so as to ensure transparency and foster understanding, with a view to preventing similar grievances from occurring in the future.

15 The Director-General acknowledged that “the vacancy notice regarding an appointment by direct selection by the Director-General pursuant to Article 4.2(e) of the Staff Regulations should have explicitly excluded that Annex I of the Staff Regulations be applied to the recruitment process.” (Original French: «l’avis de vacance relative à une nomination directe du Directeur général conformément à l’article 4.2(e) du Statut du personnel aurait dû explicitement exclure l’application de l’Annexe I du Statut du personnel de la procédure de recrutement»).


Geographical diversity 102. The Board examined a case filed by the Staff Union in which it made several

general recommendations regarding the filling of vacancies opened to internal and external candidates, so that geographical diversity is ensured while the paramount consideration of obtaining staff of the highest standards of competence, as referred to in article 4.2(a) of the Staff Regulations, is satisfied.

103. The Board recommended that the Director-General (i) provide the responsible chief with the applications of the best candidates from all member states; (ii) call the responsible chief’s attention to the fact that when drawing up a short-list, he or she first examine the applications of candidates from non- or under-represented countries, and, if need be, explain why the inclusion of candidates from other countries is justified with regard to the paramount consideration of obtaining staff of the highest standards of competence and to the right of each external candidate to have his or her application duly considered at this stage of the process; (iii) draft vacancy notices which clearly specify that according to article 4.2(a)(i) of the Staff Regulations, the highest standards of competence, efficiency and integrity constitute the paramount consideration in the filling of any vacant position in the Office, while recognizing the importance of maintaining a staff selected on a wide geographical basis; and (iv) provide the responsible chief with the list of applicants meeting the minimum required qualifications who are current or former ILO short-term officials.

104. Regrettably, the Director-General rejected the grievance as irreceivable owing to it having been submitted by the Staff Union. Nevertheless, the Director-General shared his views on the issue of geographical diversity and invited the Staff Union to discuss the matter within the JNC, with a view to agreeing on measures to enable the largest possible national and cultural diversity amongst the staff, in keeping with article 2 of the Collective Agreement on a procedure for recruitment and selection dated March 2014.

Termination of appointment 105. During the period under review, the Board examined two cases pertaining to

termination of employment. In one case, the Board concluded that the non-renewal of the Appellant’s contract beyond the probationary period for unsatisfactory services was lawful (the standard procedure had been correctly followed and the Reports Board’s final recommendation duly substantiated the reasons why the Appellant’s probationary period should not be extended).

106. A second case concerned a mutually agreed termination of contract for a staff member employed by ISSA. The Board found that the applicable rules regarding agreed termination of contract had not been properly applied by ISSA. Therefore the Board made the general recommendation that guidance be provided to ISSA management, where appropriate, with a view to improving its internal procedures and their follow-up, including when an interaction with HRD is required (in keeping with the Agreement between the ILO and ISSA of 1992, which provides in paragraph 4 that “[t]he ISSA Secretary General is responsible of the day-to-day management of ISSA staff […]”. 16 The Board further recommended that ISSA management generally clarify staff management processes and standardize procedures, while bringing them to the attention of ISSA staff.

16 Original French: «[l]e Secrétaire général de l’AISS est responsable de la gestion quotidienne du personnel de l’AISS [… ]».


III. General Recommendations of the Board 107. In its reports to the Director-General, in addition to making case-specific

recommendations, the Board often includes recommendations of a general nature. A summary of the general recommendations made by the Board during the period under review is provided below, grouped by subject matter.

Summary of General Recommendations

Advancement and promotion

i Ensure that ISSA staff benefit from the application of Circular No. 6/639 (Rev.2) Job grading procedure.

i Review the IRG Terms of reference so as to ensure that one panel member possesses relevant technical knowledge or work experience in the field of the position under grading review.

i Cancel without further notice the Circular No. 6/625 regarding personal promotion. i Clarify and specify the applicable procedures to ISSA staff, in particular as regards job

grading and job description.

Disciplinary procedures and investigations i Ensure that disciplinary sanctions are proportionate to the degree of misconduct, by adopting

intermediate sanction(s) between reprimand/censure and discharge/summary dismissal; strictly adhere to the principle of equal treatment of staff.

i Clarify the role of the Committee on Accountability and its interaction with the IAO. i Review the disciplinary process currently in force in the Office, with a view to ensuring that ILO

staff benefit from a procedure that safeguards both their rights and the interests of the Office.

Contract qualification i Urge the Director-General and the Staff Union Committee to prioritize negotiations on contract

policy with a view to adopting a sustainable contract policy in the ILO. i Standardize legal provisions relating to the award of contracts for different categories of

staff and provide clarifications regarding the terms and conditions of employment for: staff assigned to technical cooperation projects, staff assigned to PSI or extra-budgetary funded positions, ISSA staff, and officials of Branch Offices.

i Ensure correct qualification of contracts, namely for the purposes of titularization and recruitment.

Employment post-retirement i Issue a policy regarding extension of contracts beyond the mandatory age of retirement. i Enhance legal clarity in the Office regarding the employment of and applications from

officials reaching the age of retirement (or already retired), inter alia by inserting conditions of eligibility in vacancy notices and contract extensions beyond the age of retirement.

i Implement administrative measures and procedures to ensure that early succession planning is carried out.


Financial benefits i Take into account the particularity of certain home leave destinations in determining the lump-

sum payment for home leave travel, with a view to ensuring that all staff are treated equally. i Review and clarify the definition of “net salary” as referred to under paragraph 5(a) of Office

Procedure, IGDS no. 236 (version 1) used to determine emergency salary advances and ensure that this provision is applied in a uniform and non-discriminatory manner.

i Amend Annex III, paragraph 34 of the Staff Regulations so that it refers correctly to the two-year time limit for submission of claims for end-of-service travel or removal expenses.

i Urge the Office to adopt measures to ensure that the JNC reviews all requests for the extension of the time limit for submitting end-of-service travel and/or removal expense claims in an informed and timely manner and ensure that those requests are dealt with consistently and in accordance with the principle of equal treatment.

Legal and procedural issues

i Provide guidance to the ISSA management with a view to improving its internal procedures and their follow-up, including when interaction with HRD is required.

i Ensure that only enforceable provisions serve as a legal basis for Office decisions and take any necessary steps in a timely manner to avoid any legal vacuum.

i Ensure that personal files are properly managed and that official communications to staff members do not contain errors concerning their career history.

Performance management

i Establish clear and concise rules of procedure for the Reports Board and publish a clear guide on its role and functioning in order to improve transparency in the Office’s performance management framework.

Recruitment and selection

i Ensure transparency and apply the good faith principle in all recruitment and selection processes.

i Draft clear vacancy notices and ensure that they are in keeping with the requirements of article 4.2(a)(i) of the Staff Regulations.

i Provide guidance to the responsible chief for drawing up the shortlist of candidates, with a view to conciliating the need to obtain staff of the highest standards of competence, efficiency and integrity with the need to ensure wide geographical and cultural diversity.

i Instruct HRD to duly respond to requests for feedback from unsuccessful candidates in an objective and timely manner.

Reassignment

i Refrain from entering into ad personam agreements that do not comply with applicable rules and statutory provisions.


IV. General Grievance Statistics 108. The following chart shows the general activity of the Board during the 18-month

period under review, as well as a comparison with the average annual activity during the 2011-2017 period.

Figure 1. General Activity of the Board (2011-2017 Average and July 2016 to December 2017)

Grievances submitted to the Board during the reporting period 109. During the reference period, 23 grievances were filed with the Board. The pie

charts below give an overview of the subject matters of the grievances submitted to the Board during the reporting period, as well as the over the 2011-2017 period.

Figure 2. Subjects of Grievances Submitted (July 2016 to December 2017)

23 26

39

20

0

10

20

30

40

July 2016 to December 2017 2011‐2017 Average

Appeals Submitted Reports Submitted

Advancement & Promotion 29%

Contract qualification4%

Employment post retirement 4%

Financial benefits4%

Harassment 4%Leave 4%

Recruitment & Selection 33%

Service‐incurred injury or illness 4%

Staff Union 4%

Termination 8%


Figure 3. Subjects of Grievances Submitted (2011-2017 Average)

110. It is noteworthy that cases concerning Recruitment & Selection and Advancement & Promotion together accounted for 62% of the cases submitted to the Board during the period under review, compared to just 40% during the 2011-2017 period. Moreover, the number of grievances related to harassment was half that of the 2011-2017 period owing to the fact that since 1 January 2015, the Board no longer has the prerogative to review the merits of harassment cases in keeping with the Collective Agreement on Anti-Harassment Policy and Investigation Procedure.

Grievances reviewed by the Board during the reporting period

Origin of grievances reviewed 111. During the reference period, the Board completed the examination of 39 cases.

The origin of these grievances can be broken down as follows:

x 8 were submitted by women (20.5%), 23 by men (59%) and 8 were submitted by the Staff Union Committee and/or collectively (20.5%);

x 22 grievances originated from staff at Headquarters (56%), 8 from staff in Regional Offices (21%) and 9 from former officials (23%). 17

112. Among the 22 individual grievances submitted by active staff members:

x 13 were submitted by staff from the Professional category (59%), 7 from the General Service category (32%) and 2 from the National Professional Officers category (9%);

x 14 were submitted by staff appointed without limit of time (64%), 4 by fixed-term staff (18%) and 4 by technical cooperation staff (18%).

17 Of which 5 were retired officials.

Advancement & Promotion 19%

Contract qualification 6%

Disciplinary sanction 2%

Employment post retirement 4%

Financial benefits7%

Harassment 8%

Investigation 5%Leave 3%Other 1%

Performance appraisal 6%

Reassignment 2%

Recruitment & Selection 21%

Service‐incurred injury or illness 2%

Social benefits 1%Staff Union 2%

Termination 10%


Figure 4. Origin of Grievances Reviewed (July 2016 to December 2017)

Outcomes of grievances reviewed 113. Of the 39 reports issued by the Board during the period covered by the present

report:

x 17 reports (44%) concluded that the grievance should be dismissed;

x 15 reports (38%) concluded that the grievance should be fully admitted;

x 7 reports (18%) concluded that the grievance should be admitted in part. 114. The Director-General took the following decisions with regard to the 39 reports

issued by the Board:

x All 17 reports concluding that the grievance should be dismissed were fully endorsed.

x Of the 15 reports concluding that the grievance should be fully admitted:

– 10 were fully endorsed;

– 5 were fully rejected.

x Of the 7 reports concluding that the grievance should be admitted in part: – 1 was endorsed;

– 6 were fully rejected.

115. When the Board recommends that the grievance be dismissed, the Director-General endorses the report in 100% of cases (previously “in almost 100% of the cases”). The trend is maintained.

116. When the Board concludes that the grievance should be fully admitted, the Director-General endorses the recommendation in two-thirds of cases, which is an improvement over the previous reporting period. When the Board partially admits the grievance, the Director-General endorses the report in only 16.7% of cases (one case out of seven).

59%

20.5% 20.5%

56%

21% 23%

59%

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9%

64%

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117. In comparison to the previous period of activity under review, the overall success rate for the Appellants has decreased from 37% to 28% in the reference period.

Pending cases over the reporting period 118. At the start of the reference period, there were 42 grievances pending before the

Board. As seen above, 23 grievances were filed with the Board, 39 reports were issued by the Board. Four grievances were withdrawn and two grievances were finally not registered as they did not meet the formal requirements set forth under paragraph 2 of Annex IV of the Staff Regulations.

119. At the close of the reference period, there were 20 grievances still pending before the Board, as illustrated by the below graph:

Figure 5. Pending Cases (January 2015 to January 2018)

V. Grievances filed with the Administrative Tribunal of the ILO 120. Since coming into operation in October 2004, the Board has registered 379

grievances and issued 281 reports. Approximately 40% of the complaints (111 cases) reviewed by the Board were subsequently brought before the Tribunal, which resulted in 100 judgments.

121. During the period under review, the Tribunal held three sessions: the 122nd, the 123rd and the 124th sessions, during which the Tribunal issued 15 judgments concerning the ILO or the ILO-International Training Centre. Among them, ten judgments were issued following proceedings before the Board pertaining to a total of 12 grievances. 18

18 Four judgments (nos. 3703, 3772, 3774 and 3777) of the Tribunal concerned complaints filed by staff members of the ILO-ITC, who are governed by the Staff Regulations of the ILO-ITC and do not have access to the Board’s review. In a fifth judgment (no. 3886), the complainant filed his complaint directly before the Tribunal.

24

30 3029

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34 34 34

37

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45

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48

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122. As regards three grievances resulting in two judgments (Judgments nos. 3707 and 3801), the Tribunal did not take a position on the Board’s reports because the complaints were irreceivable due to being time-barred before the Tribunal and hence, were summarily dismissed.

123. As regards the remaining nine grievances resulting in eight judgments, statistics show that the Tribunal fully followed the Board’s recommendations in 77.7 % of the cases, 19 be it in favour (28.6%) or to the disadvantage (71.4%) of the complainant.

124. When the Tribunal decided not to follow the Board’s recommendations, it ruled in favour of the Appellant in one case out of two. 20

VI. Secretariat and Membership of the Board 125. The Board is assisted by a Secretariat in accordance with article 10.5(6) of the ILO

Staff Regulations. During the period under review, the Secretariat consisted of an Executive Secretary and a Legal Officer, both working at 80%, as well as an Administrative Assistant working at 40%.

126. Under article 10.5(2) of the Staff Regulations, the Board is composed of at least three chairpersons, who cannot be serving ILO officials, appointed by the Director-General on the recommendation of the JNC, and two groups of members, who must be serving officials, nominated by the Office and the Staff Union, respectively.

127. Under the Board's Working Methods, the chairpersons are appointed for a three-year term of office renewable once. The Board’s members are also appointed for a three-year term of office, in principle renewable once. The Board took note that the Office’s and the Staff Union’s views diverged as regards the interpretation of the statement made during the JNC meeting held on 27 June 2007. While the Office considers that a member shall not be designated after having twice completed a three-year term of office (i.e. after six years of membership), the Staff Union does not construe it as preventing a member from being reappointed anew, provided it does not constitute a third consecutive term. To date, the Board is not aware of the outcome of the discussion on this issue.

Co-Chairpersons 128. During the period under review, the co-Chairpersons were:

x Ms Carmen Sottas, appointed on 1 May 2012, serving her second term of office and holding the function of Coordinating-Chairperson;

x Mr Javier Escobar, appointed on 15 November 2014 and whose term of office terminated on 14 November 2017;

x Mr Víctor Rodríguez, appointed on 9 July 2013 and whose term of office terminated on 30 April 2017;

x Ms Ann Herbert, appointed on 1 February 2017 for a three-year term of office.

19 These are Judgments nos. 3704, 3771, 3773, 3775, 3776, 3883, 3884. 20 In Judgment no. 3884, the Tribunal reversed the Board’s recommendation on the ground that the rejection of the Appellant’s request to extend her contract beyond her retirement age was tainted by an error of law. In Judgment no. 3885, the Board found that the Appellant showed cause of action, but the Tribunal did not follow.


Outgoing Board members 129. During the period covered by this activity report, the second term of office of the

following members came to an end:

x Members appointed by the Office Ms Giorgia Muresu, Mr Patrick Belser and Mr Pierre de Lame (30 September 2016);

x Members appointed by the Staff Union Ms Oksana Wolfson and Mr Chittarath Phouangsavath (30 September 2016).

130. The Board and its Secretariat wish to take this opportunity to thank the outgoing Board members for having served the Board for six years, and the two co-Chairs Mr Escobar and Mr Rodríguez for having been committed to the Board for three and four years, respectively.

Renewed appointments 131. The term of office of the following members was renewed:

x Members appointed by the Office Ms Susan Hayter, Ms Mariangels Fortuny and Mr Wael Issa (until 20 November 2019);

x Member appointed by the Staff Union Ms Corinne Frassier (until 13 April 2020).

Incoming Board members 132. On 1 July 2016, the Board was composed of three co-Chairpersons, six members

appointed by the Staff Union and six members appointed by the Office. Given that the second term of office of five members was due to terminate by the end of September 2016 (three appointed by the Office and two appointed by the Staff Union), the Board raised this issue in its previous activity report and during its presentation to the JNC on 13 October 2016 as well.

133. Since then, the Board welcomed the appointment of new Board members for a three-year term of office, thus bringing to a total of ten the members appointed by the Office and to a total of eight the members appointed by the Staff Union on 31 December 2017, as follows:

x Members appointed by the Office Ms Bojana Sosic, Mr Adam Greene, Mr Jean-François Klein, Mr Peter Rademaker, Mr Ritash Sarna and Mr Geir Tonstol (appointed on 1 November 2016); Ms Isabelle Guy (appointed on 1 January 2017).


x Members appointed by the Staff Union Ms Christine Bader and Ms Martine Humblet (appointed on 1 September 2016);

Ms Yousra Hamed, Mr Christopher Land-Kazlauskas, Mr Samir Koufane and Mr Federico Dadaglio (appointed on 15 November 2016);

Mr Zoltan Gegeny (appointed on 15 November 2017).

134. The Board points out that during the period under review, Mr Tonstol suspended his duties as Board member for personal reasons as from 19 December 2017.

135. The Board’s secretariat ensured that all the newly appointed members were duly briefed on the conflict resolution process within the Office, the functioning of the Board and their role within it.

136. The Board observes that a higher number of members has enabled the Board not only to ensure the availability of Panel members in the event of recusals and, as far as possible, a gender-balanced composition of panels, but above all to deal with more grievances and hence, to reduce the backlog of pending cases before it.