2023 Annual Report – Chapter VI of the Staff Rules and Regulations

The Organization is committed to a fair and respectful work environment. Conduct issues 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 the personnel concerned may decide to initiate formal proceedings under the Organization’s settlement of disputes procedure or conduct-related frameworks, as applicable [1]. This report provides an overview of the cases handled under Chapter VI of the Staff Rules and Regulations in 2023.

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) [2] shall be consulted by the Director-General prior to taking any final decision on the merits of the appeal.

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 [3]) 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 particularly 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 through the filing of 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 by the Director-General to proceed directly to the Tribunal.

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A - Requests for review:

From 1 January to 31 December 2023, five requests for a review of administrative decisions were introduced:

i.     In May 2023, a fellow [4] requested the review of the decision not to pay compensation for untaken annual leave on termination of their employment contract at the end of the probation period. In addition, the fellow requested that a decision be taken to award financial compensation for loss of earnings beyond the end of their contract and to make efforts concerning rehabilitation. The Director for Finance and Human Resources decided to maintain the decision concerning the refusal of compensation for untaken leave and rejected the two additional requests.

ii.     In June 2023, a staff member requested the review of the decision not to be granted a lump-sum payment for family-related travel expenses in connection with the loss of a close relative, because the request had been submitted outside the regulatory time limit. Given the exceptional circumstances of the request however, and that the staff member had not been adequately informed about the procedure, an exceptional exemption from the time limit was granted allowing the payment to be made.

iii.     In September 2023, a staff member requested the review of the decision to classify an accident they suffered during a private trip following a duty trip as being of a non-occupational nature. The Director for Finance and Human Resources decided to uphold the decision: an accident occurring during a private trip following a duty trip cannot be of an occupational nature.

iv.     In November 2023, a former fellow requested the review of the decision not to grant travel expenses for their spouse when they took up their appointment at CERN. The Director for Finance and Human Resources decided to uphold the decision as the regulatory criteria for payment were not met.

v.     In December 2023, a former fellow requested the review of the decision taken by the Director-General, further to an investigation by the Harassment Investigation Subpanel, to reject a complaint for harassment on the basis that no element of harassing behaviour had been detected.  The request for review was withdrawn following amicable resolution.

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

During the period from 1 January to 31 December 2023, seven internal appeals were introduced:

i.     In March 2023, three staff members introduced internal appeals against the decision of the CERN Council to apply a 2.5% crisis levy to the staff members’ basic salaries in 2023 compensated by five additional days of annual leave to be taken during the year.  All three staff members decided to withdraw their appeals.

ii.     In March 2023, a staff member introduced an internal appeal against the decision taken by the French Ministry for Europe and Foreign Affairs to reject the Organization’s request to register the staff member’s private vehicle on special series plates (green plates). The Director for Finance and Human Resources considered the appeal irreceivable because the contested decision was not a decision taken by the Director-General but taken by the French Ministry. The appellant’s request for financial compensation for financial loss was also refused. To be noted that the French Ministry subsequently issued a favourable decision regarding the request for registration.

iii.     In May 2023, a staff member introduced an internal appeal against the decision to transfer them to another unit in their department and qualify their performance as “fair” for the reference year 2022. The appeal was withdrawn following amicable resolution.

iv.     In June 2023, a staff member introduced an internal appeal against the decision to qualify their performance as “fair” for the reference year 2022, whilst raising, inter alia, harassment allegations. The appeal was suspended pending the outcome of an investigation by the Harassment Investigation Subpanel. Thereafter, the staff member decided to withdraw the appeal.

v.     In August 2023, a former fellow introduced an internal appeal against a review decision not to pay compensation for untaken annual leave on termination of their employment contract at the end of the probation period, not to award financial compensation for loss of earnings beyond the end of their contract, and not to initiate a procedure before the Joint Advisory Rehabilitation and Disability Board with a view to rehabilitation measures [5]. The appeal was withdrawn following amicable resolution.

Concerning previous appeals:

vi.     In June 2022, two staff members introduced internal appeals against the Director-General’s decision, which concluded an arbitration procedure, in accordance with the working procedures of the Standing Concertation Committee, concerning the methodology of calculation of the salary increase annual budget in the context of the 2022 MERIT Guidelines; and against the decisions to qualify their individual performance during the year of 2021 as “strong”.  Both appellants also requested the Director-General’s authorisation to directly challenge the decisions before the ILOAT, which the Director-General rejected. The Director for Finance and Human Resources considered the appeals receivable only regarding the individual performance qualification decisions and resulting performance rewards. In May 2023, the Director-General decided to follow the recommendation of the JAAB and rejected both appeals.

vii.     In July 2021, a staff member introduced an internal appeal against the decision to qualify their performance as “fair” for the reference year 2020, and at the same time raised, inter alia, harassment allegations. This procedure was suspended pending the outcome of an investigation of the Harassment Investigation Subpanel. The internal appeal procedure resumed in January 2023. In November 2023 the Director-General decided to follow the recommendation of the JAAB and rejected the appeal.

C - Warnings and reprimands:

In 2023, the Organization issued one warning:

i.     A warning was issued to a user who failed to comply with a request by Swiss customs officers to submit to a customs control of their vehicle before entering the site at Gate E. This led to the Swiss Federal Office of Customs and Border Security contacting CERN about the incident.

In 2023, the Organization issued two reprimands:

ii.     A reprimand was issued to a staff member further to the outcome of an investigation by the Harassment Investigation Subpanel. The investigation concluded that the staff member had engaged in inappropriate behaviour towards a colleague.

iii.     A reprimand was issued to an associated member of personnel who repeatedly falsified their the CERN supervisor’s signature.

D - The Joint Advisory Disciplinary Board (JADB):

The JADB was not convened in 2023.

E - Dismissal notified during the probation period:

In 2023, the contracts of two employed members of the personnel were not confirmed following the probation period (as per Article S II 5.01 g) of the Staff Rules).

F - Particularly serious misconduct:

No contracts were terminated for reasons of particularly serious misconduct in 2023.

G - Complaints before the Administrative Tribunal of the International Labour Organization (ILOAT) [6]:

During the period from 1 January to 31 December 2023:

Complaints introduced:

i.     In March 2023, a former staff member filed a complaint against the decision to calculate their indemnity for physical deterioration following an occupational accident at 15%. The Tribunal’s ruling is expected in 2024.

ii.     In July 2023, a staff member filed a complaint against the Director-General’s decision to refuse the recognition of total disability resulting in an incapacity to work. The Tribunal has since suspended the matter on the request of the complainant pending the completion of a new procedure before the Joint Advisory Rehabilitation and Disability Board (JARDB).

iii.     In July 2023, a former fellow filed a complaint with the ILOAT against the decision of the Director for Finance and Human Resources to terminate their employment contract at the end of the probation period, due to unsatisfactory performance. The complaint has been withdrawn following amicable resolution.

iv.     In August 2023, two staff members each filed a complaint with the ILOAT against the Director-General’s decision to dismiss their internal appeals against the individual administrative decisions on the qualification of their performance for 2021 (strong) and the resulting performance rewards, in the context of the 2022 MERIT Guidelines. The Tribunal’s ruling is expected in 2026.

Judgements issued:

The ILOAT has ruled in four cases involving the Organization, which had been filed in 2021:

v.     In two cases filed individually by two staff members requesting the ILOAT to review Judgments 4273 and 4274, the Tribunal dismissed these requests in their entirety by Judgments 4706 and 4705 of 7 July 2023.

vi.     In three cases filed individually by three associated members of the personnel against the determination and application of a ceiling on their subsistence allowance payments, which were processed by CERN on behalf of third parties, the Tribunal dismissed the complaints in their entirety by Judgment 4707 of 7 July 2023.

vii.     In March 2021, a staff member filed a complaint with the ILOAT against the Director-General’s decision to deny their request for reclassification. The Tribunal dismissed the complaint by Judgment 4740 of 31 January 2024.

Ongoing complaints:

viii.     In April 2020, a former staff member filed a complaint with the ILOAT against the Director-General’s decision not to grant them an indefinite contract (IC). The Tribunal’s ruling is expected in 2024.

ix.     In July and August 2020, four associated members of the personnel filed individual complaints with the ILOAT against the decision to replace the 2019 internal tax annual certificate by an individual annual statement. The Tribunal’s ruling on these four cases is expected in 2025. Since the complainants challenge a decision of general application, should they be successful in their complaints, the outcome would be applied to others in like circumstances [7].

x.     In January 2021, a staff member filed a complaint with the ILOAT against the Director-General’s decision to reject their internal appeal concerning an allegation of harassment. The Tribunal’s ruling is expected in 2024.

xi.     In February 2021, a staff member filed a complaint with the ILOAT against the Director-General’s decision to maintain their initial performance qualification (fair). The Tribunal’s ruling is expected in 2024.

xii.     In July 2021, a staff member filed a complaint with the ILOAT against the Director-General’s decision to maintain their initial performance qualification (fair). The Tribunal’s ruling is expected in 2024.

xiii.     In July 2021, a former staff member filed a complaint with the ILOAT against the Director-General’s decision to refuse the recognition of total disability resulting in an incapacity to work. The Tribunal’s ruling is expected in 2024.

xiv.     In November 2021, a former staff member filed a complaint against the amount received from the insurer following an occupational accident. The Tribunal’s ruling is expected in 2024.

xv.     In January 2022, a staff member filed a complaint against the Director-General’s decision to reject their internal appeal concerning an allegation of harassment. The Tribunal’s ruling is expected in 2024.

xvi.     In June 2022, two associated members of the personnel filed individual complaints with the ILOAT against the Director-General’s decision to maintain the individual annual statements issued to them during the tax year 2021. The Tribunal’s ruling is expected in 2025.

xvii.     In July 2022, two staff members jointly filed a complaint with the ILOAT against the Director-General’s decision to reject their internal appeals against their individual payslips, in the context of the 2021 five-yearly review. The Tribunal’s ruling is expected in 2025.

xviii.     In September 2022, two staff members individually filed complaints with the ILOAT against the Director-General’s decision to declare their internal appeals receivable only to the extent that they challenged their performance qualification for 2021 (strong), in the context of the 2022 MERIT Guidelines. The Tribunal’s ruling is expected in 2025.

xix.     In September 2022, a CHIS member filed a complaint with the ILOAT against the Director-General’s decision to reject the granting of an ex-gratia payment as per the CHIS Rules. The Tribunal’s ruling is expected in 2025.