Human Resources Department: 2018-2019 Annual Report on the settlement of disputes and discipline

The Organization is committed to a fair and respectful work environment. Behavioural concerns or administrative disputes brought to the attention of the Organization are addressed in a timely manner using, whenever possible, informal resolution mechanisms such as mediation. In cases where informal resolution is not achievable or appropriate, the Organization or the member of personnel concerned may decide to initiate formal proceedings under the Organization’s settlement of disputes procedure or conduct-related frameworks, as applicable¹. This report provides an overview of the cases handled under Chapter VI of the Staff Rules and Regulations.

Introduction

The Annual Report under Chapter VI (“Settlement of Disputes and Discipline”) of the Staff Rules and Regulations serves to report on:

• requests for review;
• internal appeals;
• cases in which disciplinary action was taken; and
• complaints before the Administrative Tribunal of the International Labour Organization (ILOAT).

Requests for review and internal appeals

Under Article S VI 1.01 of the Staff Rules, members of the personnel may challenge an administrative decision by the Director-General where it adversely affects the conditions of employment or association that derive from their contract or from the Staff Rules and Regulations.

If permitted by the Staff Rules and Regulations, a decision may be challenged internally within the Organization:

• through a review procedure; or
• through an internal appeal procedure. In this case, the Joint Advisory Appeals Board (JAAB) shall be consulted by the Director-General prior to taking any final decision on the merits.

Disciplinary Action

Under Article S VI 2.01 of the Staff Rules, the Director-General may take disciplinary action against members of the personnel who, whether intentionally or through carelessness, are guilty of a breach of the Rules and Regulations or of misconduct that is to the detriment of the Organization.

Article S VI 2.02 of the Staff Rules stipulates that, having regard to the gravity of the breach or misconduct in question, the disciplinary action shall be:

• a warning;
• a reprimand;
• suspension without remuneration or pay for a period not exceeding six months;
• downward adjustment of the staff member’s salary;
• demotion;
• dismissal.

The Director-General shall consult the Joint Advisory Disciplinary Board (JADB) prior to taking any disciplinary action other than a warning or a reprimand (Article S VI 2.04 of the Staff Rules). In cases of particular serious misconduct, the Director-General may decide to dismiss without notice and without consulting the JADB (Article S VI 2.05 of the Staff Rules).

Complaints before the Administrative Tribunal of the International Labour Organization (ILOAT)

A decision may be challenged externally by filing a complaint before the ILOAT:

• when internal procedures have been exhausted and the decision is final;
• when an internal challenge is not permitted by the Staff Rules and Regulations; or
• when the complainant is authorised to proceed directly to the Tribunal.

****

Requests for review:

From 1 January to 31 December 2018, there were four requests for a review of administrative decisions taken by the Director-General:

• One staff member requested a review of the decision to qualify their performance as “fair” for the reference year 2017. This decision was maintained.
• One staff member requested a review of the decision to qualify their performance as “insufficient” for the reference year 2017. This decision was maintained.
• One staff member requested a review of the decision not to grant reimbursement of medical expenses at 100% (occupational rate). The reimbursement had been declined on the basis that the accident in question had been consolidated for a period of more than 10 years. The decision was maintained. The staff member also requested the payment of an additional indemnity for further permanent deterioration of physical health due to a relapse, however this element was not considered applicable.
• One staff member requested a review of the decision for them to be reassigned to new functions within the same department, entailing a change of supervisor and objectives. This request was deemed inadmissible.

From 1 January to 31 December 2019, there were seven requests for a review of administrative decisions:

• One staff member requested a review of the decision to request partial reimbursement of education fees that had been erroneously granted by the Organization. The impugned decision was cancelled.
• One staff member requested the review of the decision to be reassigned to another position within their department. The reassignment decision was confirmed.
• One staff member requested a review of the decision to refuse their request for a career review. The refusal was on the basis that the functions and activities had not changed significantly in the short period since the staff member’s previous review. This decision was maintained.
• Three staff members requested a review of the decision to qualify their performance as “fair” for the reference year 2018. Two decisions were maintained; one request was deemed inadmissible.
• One staff member requested a review of the decision, taken in the context of a professional illness classification, concerning the illness consolidation date and the indemnity rate for deterioration of physical health. The decision has been suspended pending a procedure for the settlement of a dispute of a medical nature.

Internal appeals (Joint Advisory Appeals Board (JAAB)):

During the period from 1 January to 31 December 2018:

• Final decisions were taken regarding the 14 internal appeals introduced against the decisions taken by Council in 2015 (as a result of the five-yearly review of financial and social conditions) to modify the career structure and salary grid and the corresponding individual administrative decisions. The Director-General decided to follow the recommendation of the JAAB to reject the appeals.
• A final decision was taken concerning an appeal introduced by a staff member in 2017 against the decision to qualify their performance as “fair” for the reference year 2016. The Director-General decided to follow the recommendation of the JAAB to reject the appeal.
• An appeal was introduced by a staff member against the decision, further to a career review, not to award a promotion or change of benchmark job. The Director-General decided to follow the recommendation of the JAAB to reject the appeal.
• An appeal was introduced by a staff member against the refusal to grant reimbursement of medical expenses at 100% (occupational rate). The reimbursement had been declined on the basis that the accident in question had been consolidated for a period of more than 10 years. The staff member also requested the payment of an additional indemnity for further permanent deterioration of physical health. By mutual agreement, this appeal was suspended pending the revision of Administrative Circular No. 14. The conclusion is expected in the first half of 2020.

During the period from 1 January to 31 December 2019:

• Four staff members introduced appeals against the outcome of their career reviews. The career reviews had been carried out further to a recommendation made in the context of their previous internal appeals. The outcome of these new appeals is expected in the first half of 2020.
• One staff member introduced an appeal against the decision not to be shortlisted in a selection procedure for an indefinite contract position. The Director-General decided to follow the JAAB’s recommendation to reject the appeal.
• Two staff members introduced appeals against the decision not to be awarded an indefinite contract at the outcome of a selection procedure. The Director-General decided to follow the recommendation of the JAAB to reject the first of these appeals; the outcome of the second appeal is expected in the first half of 2020.
• One staff member introduced an appeal against the decision not to qualify their commuting accident to the workplace as being of an occupational nature. The outcome of this appeal is expected in the first half of 2020.
• One staff member introduced an appeal against the decision to reject their request for the removal of personal information from their CERN medical file. The outcome of this appeal is expected in the first half of 2020.
• One staff member introduced an appeal against the decision to qualify their performance as “fair” for the reference year 2018. The outcome of this appeal is expected in the first half of 2020.
• One staff member introduced an appeal against the decision to qualify their performance as “insufficient” for the reference year 2018. The outcome of this appeal is expected in the first half of 2020.

Warnings and reprimands:

In 2018 and 2019, the Organization issued four warnings and five reprimands, as follows:

• Three warnings were issued to staff members for their inappropriate use of CERN computing facilities via e-groups to diffuse inappropriate and offensive comments concerning groups or individuals.
• A warning was issued to a staff member for the unauthorised removal and displacement of bicycles belonging to other members of personnel.
• Three reprimands were issued to two users and one technical student further to their unauthorized access to restricted areas of the CERN site, provoking a safety risk and beam interruption.
• A reprimand was issued to a user who provided incorrect registration information regarding their percentage presence at CERN.
• A reprimand was issued to a staff member who made inappropriate and derogatory comments towards a colleague during a meeting in the presence of internal colleagues and external collaborators.

The Joint Advisory Disciplinary Board (JADB):

In 2018 and 2019, the JADB was convened to examine three cases:

• One disciplinary procedure concerned the diffusion, by a staff member, via e-groups from a CERN computer account of inappropriate and offensive e-mails to colleagues. The Director-General decided to follow its recommendation of a downward salary adjustment of 2% of the grade midpoint.
• One disciplinary procedure followed a fraud investigation in which one staff member and several associated members of personnel were implicated in alleged schemes resulting in, inter alia, misappropriation of funds. In relation to the staff member, the JADB considered that the activity in question did not amount to fraud, but did give rise to breach of conduct. The Director-General decided to follow the recommendation of the Board and to issue a reprimand for breach of conduct².
• One procedure was introduced, with regard to a staff member, following the outcome of a harassment investigation. The outcome of the disciplinary procedure is expected in the first half of 2020.

Dismissal notified during the probation period:

In 2018 and 2019, no staff member employment contracts were terminated due to insufficient performance during the probation period (as per Article S II 5.01 g of the Staff Rules).

Particularly serious misconduct: 

In 2019, the following actions were taken pursuant to Article S VI 2.05 of the Staff Rules:

• A user’s contract of association was terminated further to an investigation by CERN computer security team concerning the User’s misuse of the Organization’s computer facilities for cryptocurrency mining activities.
• A user’s contract of association was terminated further to an investigation by CERN computer security team concerning the misuse of the Organization’s computer facilities for inappropriate and illegal internet browsing.

In addition, one registration as an external participant was closed due to the use of the Organization’s computer facilities for cryptocurrency mining activities.

Additional information:

With regard to the fraud investigation into alleged schemes resulting in, inter alia, misappropriation of funds, based upon the facts identified by the investigation, the Director-General decided to take the administrative measure to terminate the contracts of association of three associated members of the personnel.

Complaints before the Administrative Tribunal of the International Labour Organization (ILOAT):

During the period from 1 January to 31 December 2018:

• In March 2018, a former staff member filed a complaint with the ILOAT against the Director-General’s decision to terminate their employment at the end of the probation period, due to unsatisfactory performance. The Tribunal’s ruling is expected early 2020.
• In November 2018, seven current or former staff members filed individual complaints with the ILOAT against the Director-General’s decision to reject their internal appeals:

- all seven complainants challenged CERN’s decision to modify the career structure;
- six challenged their classification in the new structure;
- one of the complainants also challenged the decision to qualify their performance as “fair” for the reference year 2016.

The Tribunal’s ruling is expected in 2020.

The ILOAT ruled in one case involving the Organization, which had been filed in 2017:

• In a case filed by a former staff member, who is in receipt of a total disability pension, against the decision not to recognise the illness as being of occupational origin, the Organization prevailed on the merits of the case. The Tribunal did, however, identify a procedural shortcoming and awarded a small amount of compensation in respect thereof.

The complainant subsequently, unsuccessfully, sought review of this judgment.

During the period from 1 January to 31 December 2019:

• In February 2019, a staff member filed a complaint with the ILOAT against the Director-General’s decision to follow the recommendation of the Joint Advisory Rehabilitation and Disability Board not to recognize them as having a disability resulting in an incapacity for work. The Tribunal’s ruling is expected in late 2020 or early 2021.
• In July 2019, a beneficiary of the Pension Fund filed a complaint against the Organization, challenging the decision of the Pension Fund Governing Board (PFGB) to reject their internal appeal as time-barred. The matter was subsequently resolved and the complaint withdrawn.
• In August 2019, a beneficiary of the Pension Fund filed a complaint against the Organization, challenging the decision of the PFGB to reject their internal appeal regarding the need to purchase a surviving spouse pension for their spouse, married following retirement, pursuant to Article II 5.09 of the Fund’s Rules, as well as the applicable methodology. The Tribunal’s ruling is expected in late 2020 or early 2021.

_________

¹See Chapter VI of the Staff Rules and Regulations on “Settlement of Disputes and Discipline”, also OC9 on “Principles and procedures governing complaints of harassment”; OC10 on “Principles and procedure governing investigation of fraud”.

²For the outcome of the procedure with regard to the associated members of the personnel, please refer to the ‘Additional information’ section.