Table of Contents

Introduction

1. The Complainant’s Brief of 6 April 1999
1.1 Summary of the legal foundations quoted in the Complainant’s Brief
1.2 Summary of the events and evidence described in the Complainant’s Brief
1.3 Summary of the legal arguments presented in the Complainant’s Brief

2. The OIE’s Reply of 21 June 1999
 

2.1 The OIE claims that the Complainant’s work and behaviour gave reason for constant comments and interventions
2.1.1 The Complainant supposedly had several disputes with other staff members
2.1.2 The Complainant’s services supposedly deteriorated after salary discussion
2.1.3 The Complainant was supposedly inconsiderate with OIE suppliers
2.1.4 The Complainant’s work and behaviour supposedly became less and less satisfactory and caused constant comment
2.1.5 The Complainant supposedly delayed payment
2.1.6 The Complainant supposedly refused to follow instructions from the Director General
2.1.7 The Complainant supposedly wrong about being appreciated by the OIE
2.1.8 The Complainant supposedly committed fault(s) regarding an OIE-Thai agreement

2.2 The OIE claims that the Complainant was incompetent in the field of financial follow-up
2.2.1 The Complainant supposed unable to manage the file
2.2.1.1 Work-flow concerning transfers and accounting information
2.2.1.2 Anonymous alterations made to the Complainant’s accounting spreadsheets
2.2.2 The Complainant supposedly made errors in his salary increase request
2.2.3 The Complainant unable to reconcile the account balances of the OIE’s Regional Representation for the Americas
2.2.4 The Complainant supposedly produced an incomplete working document on the accounts of the OIE’s Regional Representation for the Americas
2.2.5 The Complainant’s incompetence was supposedly proven by subsequent (post-26 February 1999) audit of the accounts of the OIE’s Regional Representation for the Americas
2.2.5.1 Relevance of the OIE’s claims and evidence
2.2.5.2 Credibility of the OIE’s claims and evidence

2.3 The OIE claims that correct and statutory procedures were followed
2.3.1 Article 40.12 on professional appraisals - the Complainant’s objection
2.3.2 Article 40.12 on professional appraisals - the Deputy’s note of 7 December 1998
2.3.3 The OIE claims that the Complainant was treated fairly and objectively
2.3.4 Hidden disciplinary measures - the OIE’s disciplinary rules

2. 4 Additional items presented by the OIE
2.4.1 Information to Delegates of OIE Member States
2.4.1.1 Missing testimonial
2.4.2 Information to the OIE’s External Auditor
2.4.3 Use of registered post; moneys owed; Carte spéciale

3. Additional reasons for bias against the Complainant
3.1 Disregard of Resolutions passed by the OIE’s International Committee
3.2 Misleading information to Delegates of Member States
3.3 Conflicts of interest, regular extraordinary bonuses on-my-honour reimbursements
3.4 Disregard of the OIE’s Financial Regulations
3.5 The Director General acted Ultra vires to create pension fund advantages for French civil servants on loan to the OIE

4. Summary and concluding remarks by the Complainant
4.1 Summary
4.2 Concluding remarks

Appendix I: Pension Fund

Appendix II: List of documents (Not included on this site)

(For practical reasons all footnotes have been omitted; Delegates that wish to receive a full copy of this Rejoinder are welcome to request one.)

On 26 February 1999, Dr Jean Blancou, Director General of the Office International des Epizooties (henceforth “Director General” and “OIE”, respectively), terminated the Complainant’s employment with the OIE, with the motivation that the Complainant’s services were no longer satisfactory.

On 6 April 1999, the Complainant filed a complaint against the OIE with the Administrative Tribunal of the International Labour Organization (ILO) (henceforth “Tribunal”). In his Brief the Complainant claimed, and substantiated with relevant supporting materials, that
 

the Director General’s decision to terminate his employment is in irregular form, is tainted with procedural irregularities, abuse and illegality and is based on incorrect facts, and that the decision is an integral and unitary part of the harassment and hidden disciplinary measures, as evidenced by the behaviour and claims of the OIE’s managers, to which the Complainant was subjected to during the four month period preceding the Director General’s decision.

Considering the significant material and moral damages that the OIE has caused for the Complainant, the Complainant has requested that the Tribunal:

1. quashes the challenged decision;
2. orders the OIE to pay substantial compensation to the Complainant to mark the important material damages done to his career prospects and professional reputation as well as to mark the gravity of the abusiveness of the challenged decision;
3. orders the OIE to pay substantial compensation to the Complainant to mark the moral damages done to him as well as to mark the gravity of the abusiveness of the challenged decision;
4. orders the OIE to issue a written apology, signed by the Director General personally, for the abusiveness of the decision to dismiss;
5. orders the OIE to pay to the Complainant his costs relating to this claim; 6. orders the OIE to reinstate the Complainant in his position.

On 1 July 1999, the Complainant received from the Tribunal a copy of the OIE’s Reply, dated 21 June 1999, to his claim. On 12 July 1999, the Tribunal granted the Complainant until 15 September 1999 to submit his Rejoinder (cf. Document 1 ).

In this Rejoinder the Complainant will briefly recall the arguments and the evidence presented in his Brief of 6 April 1999, address the points raised by the OIE in its reply of 21 June 1999, and provide the Tribunal with additional information, comments and arguments relevant for its judgment.

1.1 Summary of the legal foundations quoted in the Complainant’s Brief

In his Brief the Complainant quoted a number of texts, OIE rules and Tribunal judgements which he considers are relevant for his claim, namely:

1. from the OIE’s Staff Regulations: articles 1.2, 1.9, 1.10, 8.1, 10.1, 10.2 and 11.2 (cf. Document 2), which deal with the staff members’ and the Director General’s reciprocal responsibilities, the Director General’s duty to respect the OIE’s rules, staff members’ duty to act in the interest of the OIE, termination of employment, re-examination of decisions, referral to the Administrative Tribunal, and the fact that the Staff Regulations and Rules are part of the OIE’s Basic Texts, respectively;
2. the Complainant’s job description;
3. from the OIE’s Staff Rules: article 40.12 (cf. Document 3), which deals with professional appraisal notes of staff members; and
4. a number of the Administrative Tribunal’s judgements: such as 1340 and 1391 in which for all international organisations binding principles regarding personnel treatment are affirmed. These principles concern the necessity for, among other things, due and fair process, proper inquiry before decision, safeguard of dignity and reputation, and basic respect for staff members of an international organisation.

1.2 Summary of the events and evidence described in the Complainant’s Brief

In his Brief the Complainant provided an overview of his period of service, commencing in December 1997 and ending in February 1999. He described the sequence of events leading up to his dismissal, and provided evidence in support of his claim. He presented items or events such as:

1. his job function;
2. the passing of the three month probationary period;
3. his establishment of administrative and financial procedures relating to his areas of duties;
4. the establishment of good working relationships with his counterparts;
5. that the first eleven months of his service passed correctly and how his services appeared to be appreciated by the heads of the regional offices, his head of department (Mr Guy Jannot, henceforth “Head of Department”), and the Director General ;
6. that the Complainant reviewed quarterly the expense reports of four regional offices and that, if they appeared to be correct, he passed them on to the OIE’s Accountant for further treatment;
7. that after reporting problems with the accounts of the OIE’s Regional Representation for the Americas at 30 September 1998 and indicating that he could not sign-off on the Representation’s latest quarterly report the Complainant became the target of hostility, degrading working regulations and unjustified and unsubstantiated criticism against his work and behaviour ;
8. that the Complainant provided evidence disproving criticism and that he repeatedly requested that regulations be followed and that criticism be substantiated in order for him to be able to respond to it, and that the OIE disregarded all such evidence and requests ;
9. the contents of the Annual Professional Appraisal note to which the Complainant objected, and its referral by the OIE’s management to the OIE’s Administrative Commission, and this Commission’s support of the Director General’s (unspecified) position ;
10. the Director General’s decision to dismiss the Complainant ;
11. the Complainant’s unsuccessful request for re-examination of the dismissal decision.

1.3 Summary of the legal arguments presented in the Complainant’s Brief

In support of his claim, the Complainant presented a number of legal arguments relating to relevant OIE rules, Tribunal judgements and the events described in the Brief. A summary of the Brief’s legal arguments follows:

1. the receivability of the claim was established with reference to Articles 10.1 and 10.2 of the OIE’s Staff Regulations and Articles II.5 and VII.1 of the Statutes of the Tribunal ;

2. the Complainant claimed that the OIE had committed breach of Article 40.12 of the OIE’s Staff Rules which lays down the rules concerning Professional Appraisal notes, notably in respect to the referral of the matter of the Complainant’s objection to the Annual Professional Appraisal to the OIE’s Administrative Commission regardless of the time-limit set down in this article and the Deputy’s note of 7 December 1998;

3. the Complainant claimed that the OIE had committed breach of Article 1.2 of the OIE’s Staff Regulations which explicitly and implicitly defines mutual responsibilities and rights concerning accountability, fairness, and objectivity between the staff members and the Director General ;

4. the Complainant claimed that the OIE had committed breach of Article 1.9 of the OIE’s Staff Regulations which lays down an obligation on the Director General to respect the provisions of the Basic Texts of the OIE, of which the Staff Regulations and Staff Rules are integral parts ;

5. the Complainant claimed that the OIE had committed breach of the duty of all international organisations to respect basic rules protecting the rights of international civil servants, rules which have repeatedly been reaffirmed by the Administrative Tribunal. These rules cover various duties on behalf of international organisations, such as the duty to treat staff members with a spirit of good faith, consideration, objectivity and fairness, and that “the onus of proof lies on the organisation to bear out its allegations and insinuations” ;

6. the Complainant claimed that the OIE had committed breach of Article 1.10 of the Staff Regulations, which entitles him to not be made a target of harassment for performing his duties with professional integrity and conscience ;

7. the Complainant claimed that OIE’s decision to terminate his employment was based on incorrect facts. The Complainant had already shown that the three points held against him in the Annual Professional Appraisal note were either false, tendentious, slanted, or too vague for him to be able to respond to. The Complainant never received any reaction to his information on the Thai issue, to his reply concerning the Deputy’s accusations, or to his inquiry what was meant by “aspects” of the accounting that he supposedly did not master.

Never was the Complainant told that his observations concerning the financial situation of the OIE’s Regional Representation for the Americas at 30 September 1998 were incorrect. Never had there been an open and full discussion about any of these matters. Never had any of the Complainant’s responses to accusations, accusations which he had proven to be false or tendentious, been contradicted or been given any constructive attention whatsoever ;

8. the Complainant claimed that the decision to terminate his employment was part of the harassment and hidden disciplinary measures taken against the Complainant The Complainant claimed that the pattern of bias against him, described in the Brief (changes to his working conditions, unjustified and unsubstantiated criticism, etc.) and evidenced with the documents attached to it, in itself is evidence that the challenged decision is abusive and illegal ;

9. the Complainant provided evidence that he has been denied his rights under the rules governing the OIE and under the universal rules governing the international civil service, that he has also been subjected to continuous, stressful and humiliating pressure and treatment for a long period, and that it is reasonable to consider that this situation and the decision challenged are direct results of bias against him following his position on the accounting matter ;

10. the Complainant also indicated that his future employment prospects in respect to his training and experience in general, and within the international civil service in particular, have been seriously damaged and that significant moral and material damages have been caused to him.

With its Reply the OIE attempts to create an impression that the Complainant was an increasingly poor staff member from the beginning of his employment, that his services became even poorer after he was denied a salary increase in July 1998, and that the Complainant accused the OIE of harassment and accounting irregularities in order to shield himself from criticism. Furthermore, the OIE attempts to give the impression that the Complainant’s supposedly unsatisfactory services and behaviour were due to his “personality.”

In support of its presentation, the OIE puts forward a number of allegations and documents (supposedly) concerning the Complainant’s work and behaviour and his financial management skills. These allegations cover areas such as supposed conflicts with other staff members, constantly deteriorating services, refusal to serve, and lacking respect of OIE presentation formats.

Based on its claims, legal arguments and evidence, the OIE states that the Director General’s decision of 26 February 1999 was legal and in accordance with OIE and international civil service rules and the OIE requests that the Complainant’s claim be dismissed. Nevertheless, in paragraph 83 of its Reply, the OIE enters a secondary plea seeking to limit the amount of material damages.

In the following sections, the Complainant shall refute the OIE’s allegations, reasoning and evidence by: 1. indicating absence of evidence on the OIE’s behalf; 2. presenting the full context and nature of events cited by the OIE; 3. presenting contradictory evidence; 4. drawing the Tribunal’s attention to the irrelevance, considering their non-existence at the time of the decision of 26 February 1999, of claims and evidence provided by the OIE; and 5. indicating incoherence of evidence and claims presented by the OIE.

The Complainant will indicate links to relevant sections, paragraphs or documents in both the OIE’s Reply and his Brief. Not all of the paragraphs in the OIE’s Reply have been dealt with, either because they are factual, irrelevant or repetitions of information in other paragraphs.

2.1.1 The Complainant supposedly had several disputes with other staff members

In its Reply of 21 June 1999, the OIE claims that

[d]uring the first few months [of the Complainant’s employment], the complainant’s behaviour gave his Head of Department cause to intervene in order to deal with several disputes arising between the complainant and the other members of staff, in particular one in May with a custodian and another with a scientific editor. He was reminded that the need for good relations with the members of the Central Bureau [of the OIE] was an integral part of his obligations.

2.1.1.1

The matter with the custodian was a purely personal matter in which the Complainant had put the custodian in contact with a third, non-OIE related, party for whom the custodian offered to perform renovation services. The third party expressed dissatisfaction with the timeliness of the custodian’s services and the Complainant tried, unsuccessfully, to encourage the custodian to perform according to his undertaking. The Complainant mentioned this non-job related incident, which had no impact on the professional interaction of the people involved, to the Head of Department who never intervened in any way.

It is noteworthy that the OIE mentions this matter for the first time in its Reply of 21 June 1999.

2.1.1.2

The matter with the scientific editor was a prank played in June 1998 at the Complainant’s expense and which involved the abuse of the Complainant’s professional trust. For professional reasons the scientific editor in question had requested that the Complainant divulge the password to his computer, which was done. Subsequently, the Complainant found that the screen settings of his computer had been changed and replaced with what was intended as a humorous image. The Complainant did not appreciate the change, for reasons of the integrity of his computer and the files stored within it, but nevertheless decided to handle the matter as a joke.

He sent a general distribution message on the OIE’s computer system to all staff members and jokingly inquired who had graced him with his/her attention. He also informed the person responsible for the OIE’s computer network who proceeded with an examination of the intrusion and identified the source of the image (cf. Document 4 and 5). Those responsible for the joke, the scientific editor and a second person, came forward and apologised to the Complainant for the change and the abuse of his password and the matter, which had no impact on the professional interaction of the people involved, was closed. Also in this matter, the Head of Department never intervened in any way.

It is noteworthy that the OIE mentions this matter for the first time in its Reply of 21 June 1999.

2.1.1.3

The claim that the Head of Department needed to remind the Complainant that “the need for good relations with the members of the Central Bureau [of the OIE] was an integral part of his obligations” is untrue and the OIE presents no supporting evidence.

It is noteworthy that this claim is made for the first time in the OIE’s Reply of 21 June 1999.

The OIE attempts to give the impression that the Complainant, after seeing his request for an improved salary denied in July 1998, performed his duties less satisfactorily. The OIE states that

the complainant adopted the attitude of avoiding his immediate superiors (almost exclusive use of electronic mail, working documents placed on the desks of his superiors preferably in their absence, direct correspondence between himself and the regional officers, etc.).

The claim that the Complainant avoided his superiors is untrue and the OIE provides no supporting evidence. Never has the OIE claimed that the Complainant was inaccessible for duty. The OIE also omits some basic facts that are of relevance:

1. the Administrative and Financial Department to which the Complainant belonged and in which he worked was placed on the first floor of the OIE’s building. The Complainant was the only member of that department to have his office on the third floor (cf. Document 4);
2. the Complainant was in the habit of arriving earlier in the morning than his superiors; and
3. the OIE possessed a modern computer network with both e-mail and quick messaging systems.

Considering the physical locations of the Complainant and his superiors, arrival and departure times of those involved, and the communication tools available, it is hardly surprising or illegitimate that use was made of electronic mail or that materials often be delivered to work places, as was indeed the case, in a two-way flow.

As regards the issue of direct correspondence between the Complainant and regional officers, it is clear from the materials that the Complainant had been encouraged to do so ever since he began at the OIE and that this authorisation was only ended by the Head of Department in November 1998.

As regards the Complainant’s thoughts on his salary level, he does not deny that he was dissatisfied with his salary level and that he was disappointed that the Head of Department postponed further discussion on the matter till the end of the accounting cycle (December 1998). These, neither particularly rare nor surprising, sentiments in no way led the Complainant to perform his duties with less dedication or care.

The OIE states that the Head of Department “was obliged to explain to [the Complainant] that he should adopt a more considered approach to the suppliers of the OIE” and produces an e-mail from the Complainant to the Head of Department in which the Complainant confirms a discussion on the matter and expresses a wish that in future such discussions be held in private and not in earshot of the secretarial pool.

This was indeed the first, and only, time there was an event that can be qualified as the Complainant being the object of criticism before the Complainant’s 27 October 1998 report on the problematic accounts of the OIE’s Regional Representation for the Americas. The OIE omits a full description of the event.

On 23 September 1998, the Complainant organised a conference in the OIE building. For this conference a number of lunch trays were ordered from the OIE’s caterer. On the morning of the conference, the Complainant ordered an additional number of trays. The caterer assured him that the additional trays would be delivered together with those previously ordered. This was not done. The second order was delivered after the lunch break. The Complainant contacted the caterer who apologised and offered that the OIE not pay for the trays that had been delivered late. The Complainant naturally accepted this offer.

Subsequently, the Complainant presented his report on the conference to the Head of Department. When the Complainant mentioned the catering matter the Head of Department became somewhat agitated and instructed the Complainant to disregard the offer to not pay for the lunch trays delivered late. He stated that it was OIE policy to maintain close relationships with its service providers and that the Complainant should take careful note of this policy. The Complainant, somewhat taken aback by the passion of the Head of Department’s outbreak, duly took note of this policy.

2.1.4.1

In its Reply of 21 June 1999, the OIE wishes to give the impression that the meeting on 26 November 1998 was merely the continuation of a long and continuous series of criticisms, observations, requests, etc., and that the Complainant uses the issue of his report on the accounts of OIE’s Regional Representation for the Americas as a way to protect himself.

It is noteworthy that the claim that the Complainant used the matter of the problematic accounts of the Regional Representation to protect himself against criticism is made for the first time in the OIE’s Reply of 21 June 1999.

The claim that the Complainant “on several occasions ... had to be reminded of the need to respect the presentation formats in use at the OIE” is only partially and misleadingly true. Before the 26 November 1998 meeting the only mention of “presentation formats” had been joking comments on the Complainant’s habit of rendering dates in the Year-Month-Day format, e.g. 26 November 1998 as 991126, instead of the Day-Month-Year or Month-Day-Year formats.

The claim that there was a long and continuous series of criticisms, observations, requests, etc. is untrue and the OIE presents no supporting evidence. The OIE does not substantiate its vague claims about the Complainant’s supposed non-respect on OIE standards of presentation, his attitude and behaviour, and his “inexperience”. The OIE did not substantiate these accusations or criticisms with specific examples at the time of the 26 November 1998 meeting, or in the Head of Department’s note of 29 December 1998, in the Annual Professional Appraisal note of 15 February 1999. The Complainant recalls that he, in order to be able to respond, asked for such examples during the 26 November 1998 meeting, and in his notes of 27 November 1998 and 13 January 1999.

Although the OIE’s Staff Regulations and Staff Rules clearly set procedures for professional appraisals (Article 40.12 of the Staff Rules, cf. Document 3), and disciplinary measures (Articles 9.1 and 9.2 of the Staff Regulations, cf. Document 6 and Articles 90.1 and 90.2 of the Staff Rules, cf. Document 7), none of these procedures were used. This in itself is proof that there was no long and continuous series of criticisms. (This argument is developed further under 2.3.4.)

It is noteworthy that the OIE never responded to, nor has it subsequently contradicted, the Complainant’s statements that he had performed his duties in the same way ever since taking up his position and that he had been encouraged to communicate directly with the regional offices by the Head of Department and his Deputy. Never did the OIE respond to his request for a guide on the standards of presentation of the OIE, or to his offer to develop such a guide did one not exist.

2.1.4.2

As further example of the continually deteriorating services of the Complainant the OIE cites the Head of Department’s note of 29 December 1998, in which he recalled his version of the 26 November 1998 meeting, referred to the contents of the Deputy’s note of 7 December 1998 (the legality of which the Complainant had and still contests), and added further accusations that the Complainant had drafted, translated and transmitted a draft agreement to the Thai Government without authorisation. This note also made affirmations regarding the Complainant’s accounting abilities.

The Complainant responded to these accusations in his note of 13 January 1999 to which the OIE never responded. As regards the Deputy’s accusations, the Complainant stated that he had prepared the materials in question under the supervision of the Deputy and that he had been dependent on the Deputy for the relevant inputs. The OIE has never contradicted this claim.

The matter of the OIE-Thai agreement will be dealt with under 2.1.8. The matter of the Complainant’s accounting abilities will be dealt with under 2.2.

2.1.4.3

As further evidence of the continually deteriorating services of the Complainant, the OIE claims that the Complainant did not reply until 17 February 1999 to a request from the Regional Representative for Asia-Pacific made on 29 January 1999, and that he “accompanied his request with inappropriate comments on his relations within the Central Bureau.”

It is noteworthy that the OIE mentions this matter for the first time in its Reply of 21 June 1999.

The OIE omits to mention that the Representative in question, in his original request of 29 January 1999, or, the Complainant does not recall which, after making his request, either by phone or by e-mail, made it very clear that the Complainant was not to consider this request a priority matter.

The OIE’s management may consider communication regarding working conditions between colleagues as “inappropriate.” The OIE’s Representative for Asia-Pacific, Dr Yoshihiro Ozawa, and the Complainant had always maintained correct, even cordial, working relations and there is no legitimate reason to label communication between them on working conditions as inappropriate.

The OIE claims that the Complainant

delayed the payment of the funds needed for the smooth running of the Regional Representation for the Americas, requested on 9 September and again on 16 November 1998. this [sic] document bears a new, hand-written reminder from the Head of Department.

This claim is untrue and the OIE presents false evidence. The Complainant would never have refused a (legitimate) instruction from the Director General or any of his superiors. The Director General on 7 September 1998 wrote to the Representation declaring

After reviewing your recent notes and the Representation’s financial situation, I believe that we should wait to transfer further funds to the Representation until the third quarter expense report has been completed (cf. Document 8).

If indeed the Complainant had actually delayed a payment that he had been ordered to do, he would have performed a breach of duty and would have become directly liable for disciplinary measures. This seems even more likely were one to assume that the OIE’s claims on the overall poor quality of the Complainant’s services were true. Why was disciplinary action not taken?

The OIE claims, at least by inference, that the Complainant in November 1998, the OIE provides no exact date, declined to perform a direct instruction from the Director General concerning materials for a meeting on a disease buffer zone and that the Deputy subsequently in writing expressed specific criticism relating to the preparation of two meetings (non-respect of presentation formats and failure to inform immediate superior of absence due to illness).

These claims are untrue and once again the OIE is misleading in its presentation of events. The Complainant would never have refused a (legitimate) instruction from the Director General or any of his superiors. The actual event was that the Complainant informed the Director General that he would not be able to perform all the tasks at hand given to him by his superiors in the time allotted, and inquired which tasks the Director General considered priorities before the other.

If indeed the Complainant had actually refused to perform the duties demanded by the Director General, he would have performed a breach of duty and would have become directly liable for disciplinary measures. This seems even more likely were one to assume that the OIE’s claims on the overall poor quality of the Complainant’s services were true. Why was disciplinary action not taken?

The matter of presentation formats has been dealt with above (see 2.1.4.1 above). The OIE’s criticism on illness leaves out a crucial point: the standard procedure in the Complainant’s department was to report absence directly to the accountant or in his absence to either the reception or to any other colleague. This was indeed done and the OIE has never claimed otherwise.

2.1.7 The Complainant supposedly wrong about being appreciated by the OIE

In his Brief of 6 April 1999, the Complainant referred to several events as proof that his services were considered satisfactory by the OIE, events such as: the passing of the three month probationary period without incident; gifts, dinner invitations and expressions of satisfaction with his services by OIE Regional Representatives/Coordinators; the Director General addressed a note to the Complainant expressing the OIE’s President’s and his own appreciation of the Complainant’s “professional competence and devotion to the reputation of the Office” ; the granting of a loan by the OIE to the Complainant; and the Director General’s forwarding of a note from a veterinary association expressing gratitude for the Complainant’s services.

In its Reply of 21 June 1999, the OIE belittles these events:

The very general expressions of gratitude sent by persons who only infrequently had an opportunity to work with the complainant, the small gifts brought to Paris by the Regional Coordinators, a loan of 3 700 USD for a period of two months or a standard letter sent every year by the Director General to all the members of staff without including any specific evaluation cannot outweigh the everyday observations made by his immediate colleagues and his superiors nor serve to establish that the services of the complainant were wholly satisfactory.

The Complainant was not infrequently working with the Coordinators. On the contrary, he was in contact, by e-mail, by fax or by phone, with the four Regional Coordinators on an almost daily basis, responding to their requests for assistance or instructions, or conveying those of his superiors The satisfactory nature of the Complainant’s services has been indicated by one Regional Coordinator, Dr Laurence Gleeson, the head of the OIE’s South-East Asia Foot and Mouth Disease Project (cf. Document 9).

Considering that the OIE employs at its headquarters only 30-odd staff, all known to the Director General personally (the Complainant and the Director General were often in contact in the Complainant’s or in the Director General’s office), and considering the OIE’s accusations that the Complainant’s services were dissatisfactory from the first few months of his employment, it is odd that the Director General would sign even a “standard letter,” addressed to the Complainant personally, containing such words of appreciation.

Furthermore, recalling the OIE’s claim in its Reply that “[d]uring the first few months [of the complainant’s employment], the complainant’s behaviour gave his Head of Department cause to intervene in order to deal with several disputes arising between the complainant and the other members of staff,” the Complainant quotes Article 40.8 of the OIE’s Staff Rules (cf. Document 10):

Article 40.8 - Probationary period

The duration of the probationary period is defined in Articles 40.5, 40.6 and 40.7 above.

At the end of the probationary period, the Director General may:

- confirm the employment; - exceptionally and with the agreement of the staff member, prolong the probationary period for a new period at the most as long as the first period; or - end the employment of the staff member with ten days notice for a staff member hired temporarily or with one month’s notice for a staff member hired with a fixed term or indefinite term contract.

All or part of the notice period may be replaced by the payment of the corresponding salary and indemnities.

The Director General of the OIE performed none of the three acts mentioned above. The end of the probationary period passed as just a normal working day; the Complainant received no letter confirming his employment, was never asked to agree to a prolongation of the probationary period, and his contract was not terminated. Considering the OIE’s claim that already during the “first few months” the Complainant’s behaviour gave cause for concern, it is odd that the OIE let the probationary period pass without using the rules concerning it to manifest a need for improvement on behalf of the Complainant.

In the Complainant’s view, the Director General’s failure to the apply Article 40.8 is a clear indication of the false nature of its claims regarding the Complainant’s services.

In its Reply of 21 June 1999, the OIE maintains that the Complainant committed fault in the context of the issue of the agreement between the OIE and the Government of Thailand. This accusation was prominent in the Head of Department’s note of 29 December 1998 and in the Annual Professional Appraisal of 15 February 1999 (it was one of the three points held against the Complainant), although the wording on this issue has changed revealingly over time:

The Head of Department wrote in his note of 29 December 1998 to the Complainant:

...having recently edited a draft reply regarding a modification to the draft Agreement between the royal Thai Government and the OIE, you translated and sent this text without letting me review and verify the translation.

Your affirmation that I have translated and transmitted to the Royal Thai Government a draft agreement is erroneous, as close scrutiny of the records shows. I initiated no changes to the agreement, made no translation of it, and certainly did not submit it to the Thai Government on my own authority.

The only article that was changed between the September 1997 version and the final document signed in November 1998 was article 6(a). The change to article 6(a) was proposed on 27 October 1998, after negotiations with the Thai Government, to the Director General by Dr Laurence Gleeson (cf. Document 11). On 28 October 1998 this proposed amendment was recommended by Dr Yoshihiro Ozawa (cf. Document 12).

On 29 October 1998 Director General Blancou wrote to Dr Ozawa, with copy to Dr Gleeson, expressing satisfaction with the progress made on achieving the OIE-Thai agreement (cf. Document 13). On 29 October 1998 Dr Gleeson wrote to me stressing the urgent need to finalise negotiations in time for the Director General’s mission to Vietnam and Thailand, scheduled for the period 24 November 1998 to 2 December 1998.

On 2 November 1998 I, upon your instruction, sent a message to Dr Gleeson in which you expressed satisfaction with the proposed change to the basic agreement text from September 1997 (cf. Document 14). On Thursday 5 November 1998 Dr Gleeson asked me to provide, by the following morning by the latest, the redrafted version of the agreement to the Thai Delegate to the OIE, so that he and the OIE Regional Representative, Dr Ozawa, could discuss it (cf. Document 15). At the time, you were absent, the Director General had only just returned from mission, and I was not yet under the working restrictions currently in place. Therefore, in the interest of the Office and the South East Asia Foot and Mouth Disease Campaign project and mindful of our long-standing desire to conclude the agreement with the Royal Thai Government as well as of the approbations expressed by the Director General and yourself, I responded to Dr Gleeson’s pressing request.

It is therefore clear that I never, of my accord, made any changes to the agreement nor acted in a manner that contradicted the expressed instructions of my superiors. Furthermore, your satisfaction with this matter was clearly expressed in your note to me of 16 November 1998 (cf. Document 16), and in that of 17 November 1998 of the Director General to the Thai Delegate.

- Thailand/OIE Agreement: Nothing justifies that a final version be sent without being reread by the Director General, myself or my deputy.

... this note [the note of 29 December 1998] specifically reproached the complainant for having sent a draft agreement to the government of Thailand without the authorisation of his superiors...

On 13 January 1999, the complainant replied to the letter of 29 December from his Head of Department: he contested having sen[t] a draft agreement to the government of Thailand without the authorisation of his superiors but stated that he had acted at the request of Dr Gleeson, Head of an OIE Regional Coordination Unit in Bangkok...

During the annual procedure for the professional report ... the Head of Department indicated that, in the matter of the agreement with Thailand, there was no possible justification for sending a final version of the agreement without the authorisation of the Director General, himself or his Deputy...

... [the Complainant] repeated his point of view on the matter of the agreement with Thailand...

In the matter of the agreement with Thailand, even if, as the complainant states, he did not act on his own initiative, he should nevertheless have informed his supervisors of the envisaged amendments for an agreement which is solely within the competence of the Director General.

At the time of the dismissal of the Complainant on 26 February 1999, the OIE had claimed that the Complainant did “not succeed in mastering completely the different aspects [of the financial follow-up of the Regional Representations]” and that “Financial follow-up: the services provided by [the Complainant] remain insufficient.” The OIE had not responded to the Complainant’s request for clarification what was meant by this criticism.

In its Reply of 21 June 1999, the OIE attempts to justify its vague pre-26 February 1999 claims and to cast doubts on the Complainant’s accounting and financial management skills, in particular as concerns the accounts of the OIE’s Regional Representation for the Americas.

2.2.1 The Complainant supposed unable to manage the file

The OIE claims that the Complainant was incapable of confirming the amount of the voluntary contribution received from the Argentine Government in 1998 for the OIE’s Regional Representation for the Americas. This supposedly indicates the Complainant’s “professional incapacity to manage the files for which he was responsible.” The OIE also claims that “certain facts [unspecified] that should have been checked by the complainant [regarding the discrepancies in the accounts of the OIE’s Regional Representation for the Americas] had still not been checked.”

This claim was first made by the OIE on 26 November 1998 and the Complainant’s reply at the time (repeated below under 2.2.1.1) was completely ignored by the OIE.

2.2.1.1 Work-flow

Concerning transfers and accounting information, the OIE omits to mention the working procedures that were in place regarding financial management and follow-up of the OIE’s Regional Representations. For outgoing or incoming transfers of funds, the flow was:

1. the Complainant, upon instruction of the Head of Department or upon the initiative of the concerned Regional Representation or of his own initiative, prepared the outgoing transfer order form to be sent to the OIE’s bank;
2. the Complainant submitted this form the Head of Department and to the OIE’s internal Accountant, Jean-Pierre Croiziers de Lacvivier (henceforth “Accountant”) for approval and signature (cf. Document 17 and 18);
3. the Accountant submitted the form to the bank and received, from the bank, confirmations of outgoing as well as incoming transfers; and
4. the Head of Department or the Accountant subsequently either passed a copy of the outgoing or incoming transfer confirmation to the Complainant (in person or by leaving it on his desk), or confirmed the transfer and amounts (in person, by e-mail, or by phone) to the Complainant, who then took note of them in his accounting spreadsheets (cf. Document 19 and 20) without, as agreed with the Accountant (and known by the Head of Department), keeping copies unnecessarily in his files as originals were held by the Accountant.

It is clear that the Complainant was not a primary source of definite information on transfers and that he was dependent on the Head of Department and the Accountant for information (cf. Document 21 and 22). So, in order to respond with certainty to the Head of Department’s request for confirmation of the amounts of Argentine voluntary contributions, the Complainant needed the assistance of the Accountant.

The Complainant repeatedly requested that the Accountant grant him some time to verify the matter of the Argentine voluntary contribution, and was repeatedly told that the matter would be dealt with later (cf. Document 23 and 24).

Considering the OIE’s claim that the Complainant was poor in his accounting work, one would presume that the OIE’s Accountant was displeased with the Complainant’s services. This seems even more reasonable considering the OIE’s statement that “it was the duty of the complainant, who received copy of all the relevant information, to assist the accountant and not to seek his help.” The Complainant’s supposed failings therefore should have caused extra hardship for the Accountant. In this context, the total absence of criticism from the Accountant is most revealing.

When the Complainant received his Annual Professional Appraisal on 15 February 1999, he inquired with the Accountant if he had complained about the Complainant’s services. The Accountant assured the Complainant that he had never complained about the Complainant’s work. Furthermore, the Accountant seemed to share the Complainant’s feelings regarding the nature of the expense reports arriving from the Regional Representation for the Americas (cf. Document 21).

2.2.1.2 Anonymous alterations made to the Complainant’s accounting spreadsheets

The Accountant’s information was all the more crucial, as the Complainant had noticed that his own spreadsheets were being the object of un-notified alterations.

The OIE’s computer network provided no direct access to computer files between the four departments. Within departments, staff members had access to files placed in a public area, or one could place files in a personal area or in one’s personal computer. As a rule, for reasons of inter-operability between colleagues, most files were in public areas. Initially, the Complainant kept his accounting spreadsheets in a public area to which, e.g., the Head of Department had access.

At several occasions after making his 27 October 1998 report on the 30 September 1998 accounts of the OIE’s Regional Representation for the Americas, the Complainant noticed that his accounting spreadsheets contained entries, or changes to entries, that he had not performed (cf. Document 4). Considering the wanton criticism that he had received after making his report, the efforts at “clarification and reorganisation” of which the above-mentioned accounts were being the object by the Head of Department, and his general knowledge of operations within the OIE, the Complainant was alarmed by this meddling with his accounting spreadsheets (see 3.2 below).

The Complainant started to protect his spreadsheets by means of passwords. This had the disadvantage of limiting access for others, but considering the reasons this was an inevitable and sound course of action. In early February, the Head of Department instructed, in a note dealing with file management in general, all department staff to submit their passwords to him. The Complainant subsequently informed the Head of Department that all his files had been made accessible in read-only mode (which enables free consultation but disallows alterations by anyone else but the password holder). The Head of Department responded that this was not acceptable and demanded the passwords. The Complainant then explained the reasons for his protection (cf. Document 25). The Complainant never received a reaction to his message; the next day he was dismissed.

The OIE claims that the Complainant’s “request for an increase in salary ... included errors and omissions on the budgetary aspects of the request.”

This is untrue and the OIE omits to mention that the Complainant was the first to state that his salary request was based on rough estimates that did not include exact calculations regarding social and other costs. The Complainant based it on the projected levels of voluntary contributions for the activities of the regional representations, estimates of his time spent on representation and general activities, and his knowledge of the salary levels of fellow colleagues.

2.2.3 The Complainant unable to reconcile the account balances of the OIE’s Regional Representation for the Americas

The OIE claims that the Complainant was unable to reconcile the account balances for the OIE’s Regional Representation for the Americas at 30 September 1998 and that he was unable to perform the procedures to explain the differences he had found.

It is noteworthy that this claim is made for the first time in the OIE’s Reply of 21 June 1999. It is also noteworthy that this claim is the one true claim in the OIE’s Reply, although this does not speak in the OIE’s favour as shall be explained in some depth below and under 2.2.4 and 2.2.5.

Based on the information at the Complainant’s disposal (information the sources of which were the Head of Department and the Accountant, see 2.2.1 above, and the expense reports submitted by the Regional Representation) the income, expense, and bank accounts of the OIE’s Regional Representation for the Americas did not balance at 30 September 1998. The Complainant found that the Representation was holding more funds than it should considering its expense reports. After unsuccessfully trying to reconcile the information at hand with the possible explanations proposed by the Head of Department, the Complainant informed him of the results of his efforts.

It is noteworthy that the Complainant quarterly also performed the verification for the OIE’s Regional Representations for Asia-Pacific, Eastern Europe and the OIE South-East Asia Foot and Mouth Disease Project, and that these accounts presented no particular difficulties (although strangely flexible procedures were sometimes ordered, see 3. 3 and 3. 4). Any problems were cleared, either directly with the Regional Representation in question or in-house. The OIE has not claimed that the Complainant failed in his work regarding the three other regional offices, the budgets, operations and activities of which were comparable (or more important than) those of the Regional Representation for the Americas.

That the Complainant could not accommodate the Head of Department’s wishes on the matter of the accounts of the OIE’s Regional Representation for the Americas is a sign of the Complainant’s desire to perform his duties with professional conscience and integrity and nothing else. There had been considerable concern (regarding such things as unclear nature of products and services paid for, receipts with no client name or another client name or address than that of the OIE’s office in Buenos Aires) about the expense reports of the OIE’s Regional Representation for the Americas throughout 1998 (cf. Documents 8, 26, 27, 28, 29 and 30). Considering the information at his disposal and his obligation to act with professional integrity, the Complainant could not say that the third quarter expense report appeared to be in good order.

The OIE claims that the Complainant’s inability on the issue of the accounts of the OIE’s Regional Representation for the Americas lead to the recruitment of a temporary book-keeper, and that the Complainant produced an incomplete working document claiming that that person had corroborated his findings.

It is noteworthy that this claim is made for the first time in the OIE’s Reply of 21 June 1999.

This claim is untrue and the OIE presents no supporting evidence. It was the Complainant’s unwillingness to vouch for the dubious accounts which lead the Head of Department to seek a more collaborative person to perform the necessary “clarification and reorganisation.” Unfortunately for the Head of Department, the temporary book-keeper performed her job and corroborated the Complainant’s findings. The first temporary book-keeper left her post during the first half of December 1998 and a second temporary book-keeper was brought in.

The Complainant did not produce a working document on this matter, for the simple reason that as of 9 November 1998 he no longer had access to the file containing the relevant expense report materials. The Head of Department had instructed the Complainant to submit these materials to him (cf. Documents 31 and 32). As of that moment the Complainant was excluded from the matter. The first temporary book-keeper would ask him for comments or clarification but performed her verification and produced her spreadsheets, among them the list of problem receipts, independently. The Complainant had virtually no contact with the second temporary book-keeper.

After the Complainant was dismissed from his position, he inquired if the first temporary book-keeper was prepared to present formal testimony in the event of the Complainant lodging a complaint against the OIE. Considering that she was an employee of a temporary employment agency and therefore was/is subject to strict confidentiality clauses, it is understandable that she declined to testify. Recent appeals to this person have gone unanswered.

In support of his reply to the OIE’s claims on this point, the Complainant is nevertheless in a position to submit as evidence two e-mails from the first temporary book-keeper. Early on during her stay at the OIE, she realised that what was expected of her was to perform a clean-up job for the Head of Department and she understood that it would be prudent to keep records of her work.

The first e-mail, dated 11 December 1998, clearly indicates that she was the author of the her various spreadsheets and that this person was unappreciated by the Head of Department:

Jannot [Guy Jannot, the Head of Department] spent from 3 PM to 4.30 PM in the office. I had made photocopies of the file ENVOI, but had to destroy them as I could not take them with me. (I suppose he was keeping an eye on me) (cf. Document 33).

Here [at her new job] all is well, I do not sense any “dodgy business,” there are no invoices that have to disappear...(cf. Document 34).
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In its Reply of 21 June 1999 the OIE claims that audit “subsequently demonstrated the absences of any discrepancies” in the accounts of the OIE’s Regional Representation for the Americas at 30 September 1998, and that the Complainant had entered incorrect income amounts, omitted bank interests and double entered expenses. The OIE claims that this “episode clearly demonstrated the complainant’s lack of competence in managing accounts on the one hand and his lack of willingness on the other.”

As supporting evidence for these claims the OIE presents a note from the Director General to the OIE’s Administrative Commission, a note from the OIE’s External Auditor, Jacques Berthe, to the Director General, and a note from the OIE’s Chartered Accountant, L. Menuet, to the Director General.

The claim that the Complainant “entered incorrect income amounts, omitted bank interests and double entered expenses” is untrue and the “evidence” presented by the OIE does not support the organisation’s allegation. Below the Complainant shall discuss both the relevance and the credibility of the OIE’s “evidence.”

2.2.5.1 Relevance of the OIE’s claims and evidence

The decision challenged by the Complainant was taken by the Director General on 26 February 1999. The supporting evidence from the Director General, the OIE’s External Auditor and the OIE’s Chartered Accountant are dated 30 April, 13 April and 27 April 1999, respectively. Even if the statements provided by the External Auditor and the Chartered Accountant are made based on correct information provided by the OIE and in good faith, they are strictly speaking irrelevant for the case as they did not exist at the time of the dismissal decision and therefore were unchallengable by the Complainant. The same principle applies to the Director General’s note and the claims made in it.

The Complainant recalls that he had asked for clarification what was meant when the OIE’s management claimed his capabilities in the field of financial management were lacking, and that the OIE never responded to this request - therefore the Complainant was denied his right, oft reaffirmed by the Tribunal, to verify and respond to the accusations levelled against him. It has also been noted and evidenced above that the files in question had been removed from the Complainant’s care as of 9 November 1998 (cf. Documents 31 and 32).

In the following section, for the sake of argument, the Complainant shall provide a number of comments on the credibility of the OIE’s evidence for the claim that the Complainant “entered incorrect income amounts, omitted bank interests and double entered expenses.”

As regards the three notes from April 1999, presented as evidence by the OIE, the following observations should be made:

1. Neither the note from the OIE’s External Auditor, nor the note from the OIE’s Chartered Accountant speaks of the Complainant entering incorrect income amounts.

2. Neither the note from the OIE’s External Auditor, nor the note from the OIE’s Chartered Accountant speaks of the Complainant omitting bank interest.

3. Neither the note from the OIE’s External Auditor, nor the note from the OIE’s Chartered Accountant speaks of the Complainant double entering expenses.

4. Neither the note from the OIE’s External Auditor, nor the note from the OIE’s Chartered Accountant refers to any appendices.

5. The only “evidence” given for the OIE’s claim that the Complainant entered incorrect income amounts, omitted interest or double entered expenses is to be found in the Director General’s note of 30 April 1999. This note refers to and leaves the impression that the notes from the External Auditor and the Chartered Accountant support such allegations, when these notes do not actually lend their support, explicitly or implicitly, to such allegations.

6. There is a revealing shift in meaning in the Chartered Accountant’s statement:

In accomplishment of the mission that the Director General assigned to me, I have the honour to report on the verification of the financial statements concerning the funds held by the OIE Regional Representation for the Americas between 1 January 1998 and 30 September 1998.

I - The annual accounts, as closed by the Directorate General, were submitted to an audit according to standards requiring diligent undertaking and allowing the obtention of a reasonable degree of assuredness that the accounts showed no significant abnormalities.

II - The situation as of 30 September was the following (in USD):

. Income 95 134.22

. Expenditure (93 485.63)

. Surplus as of 30/09/98 1 648.59

III - Upon completion of my mission, I certify that the accounts are correct and precisely reflect the operations carried out.

Boulogne, 27 April 1999

L. MENUET

Chartered Accountant

7. As concerns the Chartered Accountant’s statement on income, expenditure and surplus for the Regional Representation at 30 September 1998, the Complainant notes that these numbers differ from those found by him while he was in charge of the expense file, and the Complainant can only speculate at the reorganisation of which these numbers have been the object. The Complainant has no special reason to doubt the Chartered Accountant’s integrity, but it is obvious that her/his work is dependent on and is a result of the input received from the OIE.

8. As concerns the Chartered Accountant’s statement on the amount of expenditure of the OIE’s Regional Representation for the Americas for the period 1 January 1998 to 30 September 1998, 93 485.63 USD, the Complainant notes that this figure is in variance with that indicated by the head of the OIE’s Representation in question, Dr Emilio Gimeno (former President of the OIE International Committee), who, in his declarations on expenses incurred, declared “on my honour” that the total operating expenses of the Representation for the period amounted to: 95 531.55 USD (cf. Documents 36, 37, 38, 39 and 40).

9. It is noteworthy that the amount of the income of the OIE Representation which the Complainant supposedly did not take into account, 3 318 USD, and the difference between what the Chartered Accountant and the OIE Regional Coordinator claim to be the total expenditure of the OIE’s Regional Representation for the Americas at 30 September 1998, 2 045.92 USD, rather nicely correspond to the difference reported by the Complainant (5 250.97 USD).

10. Also the External Auditor’s statement is revealing:

I refer to the criticisms formulated by a former officer of the OIE concerning the presentation of accounting documents for the OIE Regional Representation for the Americas; you requested that I pay special attention to the operations in this special account when I conducted my audit on the 1998 OIE accounts.

The verification which I conducted was assisted by the efforts of clarification and reorganisation on the part of the Central Bureau, with the assistance of the OIE chartered accountant. ...

4. These conditions explain why, during this short initial period [undefined but seemingly the first two months], the form of certain supporting documentation was less than perfect. After having taken into consideration the additional information which was requested from the Regional Representation, clear links have nevertheless been established between all of the expenses and establishment and activities of the OIE. Neither payments nor the manner in which they were executed necessitate any special observation on my part.

5. Beginning in March 1998, the presentation of supporting documentation improved. Since 1 July, the documents have been accompanied by a cover page for accounting analysis...

Yours sincerely,

Jacques Berthe

OIE External Auditor

11. The Complainant does not know if the External Auditor is aware that at least one of the invoices, concerning an expenditure for 567.19 USD (cf. Document 41) is 20 city blocks separate from the OIE’s office (cf. Documents 36, 37, 38, 39 and 40) in Buenos Aires as is clearly indicated by the Swedish Embassy in Buenos Aires in the attached note and map (cf. Documents 42 and 43). This receipt comes from a company which represents a total of 1891.62 USD in the “table of invoices posing problems” provided by the OIE. The External Auditor would have known this had he decided to contact the Complainant, as the Complainant encouraged him to do in his note of 9 April 1999 (cf. Document 44), but maybe this was all part of the “simplified invoicing” of which the External Auditor approves in his note of 13 April 1999.

In its Reply of 21 June 1999, the OIE addresses the Complainant’s arguments concerning his objection to the Annual Professional Appraisal, the illegality of the Deputy’s note of 7 December 1998, the absence of objectivity (existence of bias) towards the Complainant, and hidden disciplinary measures. In its Reply the OIE does not address the Complainant’s claims regarding Articles 1.2, 1.9, and 1.10 of the OIE’s Staff Regulations.

2.3.1 Article 40.12 on professional appraisals - the Complainant’s objection

In its Reply the OIE, without directly mentioning it, addresses the Complainant’s claim that the OIE did not follow the rules laid down in Article 40.12 regarding the ten day time-limit before submitting an objection of a staff member of the Annual Professional Appraisal/Report. The OIE states that

The procedure provided for under article 40.12 of the Staff Rules makes provision, in the event of objections to the report, for the Director General to place the matter as soon as possible before the Administrative Commission. This was done.

Following the various stages of the procedure relating to your professional report and the discussion that you had with the Head of the Administrative and Financial Department on 17 February and the President of the OIE International Committee on 18 February, I have the honour to inform you that in accordance with Article 40.12 (d) last paragraph of the Staff Rules the matter has been brought before the Administrative Commission.

The Complainant recalls the text of the relevant section of Article 40.12 (cf. Document 3):

(d) If the concerned wishes to contest an appraisal contained in these notes, he submits, in writing, to the Director General, by his superior, and at the latest five working days after receiving the note, a concise exposé of his objections to the note and the facts and conclusions upon which he bases himself.

If the Director General can not solve the problem in such a way as the concerned withdraws, in writing, his contestation within ten working days of receiving the contestation, he refers the matter as quickly as possible to the Administrative Commission. The decision of this Commission is passed, in writing, to the concerned by the Director General.

The Complainant’s written objection was made on Monday 15 February 1999, and it was actually received by the OIE on 16 February 1999. Ten working days later would have been 1 March 1999. So the earliest date the Director General could have referred the matter to the Administrative Commission for decision would have been Tuesday 2 March 1999. The Director General’s note dated 19 February 1999 is proof that the Administrative Commission had been informed of the matter of the Complainant’s objection well before that date. This constitutes a violation of OIE’s Staff Rules, as well as the Complainant’s rights as a staff member and an international civil servant.
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In its Reply of 21 June 1999, the OIE addresses the issue of the Complainant’s claim that the Deputy’s note of 7 December 1998 was illegal within the framework of OIE staff regulations and thus constitutes further proof of moral harassment, abuse and hidden disciplinary measures directed against the Complainant. The OIE states that

...it should be pointed out that Article 40.12. of the Staff Rules concerns only the annual report on the service of OIE staff members, but that it can in no way be interpreted as preventing a supervisor from sending written comments to a subordinate and informing his own supervisors thereof, as was the case with the note of 7 December 1998.

(a) Professional appraisal notes are established for all members of the staff, in the form prescribed by the Director General and by the persons designated by him, before the end of the probationary period, once a year thereafter. The concerned Department may also, when it so deems necessary, establish professional appraisal notes concerning one of its members and transmit it to the Director General.

(b) Every staff member will be offered the possibility to discuss with his immediate superior all professional appraisal notes concerning him which have been established by virtue of paragraph (a) above. He then signs the note to indicate that he has read them.

As the form and delivery of the Deputy’s note of 7 December 1998 did not conform with the rules prescribed in Article 40.12, the Complainant requested that the Director General indicate the legal status of the note. This approach was necessary considering the very serious allegations made by the Deputy in his note (which followed the Head of Department’s false and unsubstantiated allegations and degrading working instructions of 26 November 1998 ).

The OIE’s rules do not set down other manners for delivering professional appraisals than those set in Article 40.12. The Deputy’s note, signed with his title, is a professional appraisal that he deemed necessary. The rules on such notes clearly state that such a note is to be addressed to the Director General and that subsequently the staff member is given the opportunity to read and counter-sign it.

For some reason the OIE never acknowledged this note as being a Professional Appraisal, but still legitimised it and its contents. The reason for this odd behaviour may be found in section (d) of Article 40.12 (see 2.3.1 above): the Head of Department and his Deputy wanted to have the privilege to level gratuitous criticism against the Complainant and bully him without facing an objection which would oblige the Director General to refer the matter to the Administrative Commission.

The reasons for this unwillingness at this time, December 1998, can of course not be proven by the Complainant. Maybe the Head of Department and his Deputy were too busy with their efforts of “clarification and reorganisation” of the accounts of the OIE’s Regional Representation for the Americas. Maybe the Head of Department and his Deputy feared that the Administrative Commission would have looked into the matter, and the information connected to it, more completely in December than it subsequently looked into matters in February.

In his Brief of 6 April 1999, the Complainant claimed that the OIE never treated his case objectively, that the OIE consistently declined to discuss the Complainant’s view or evidence or discuss with him further beyond his written replies, and that the OIE took no notice of the evidence and information that he provided. In its Reply of 21 June 1999 the OIE attempts to give the impression that there were indeed occasions when the Complainant was actually heard by the OIE and that the Complainant declined discussion. In its Reply the OIE makes several such claims.

2.3.3.1

The OIE claims that “[o]n 10 December, the complainant was convened by the Director General to give him an opportunity to explain himself.”

It is noteworthy that this claim is made for the first time in the OIE’s Reply of 21 June 1999.

This claim is untrue and the OIE presents no supporting evidence. The truth is that on 10 December 1998 the Complainant was called down to the Director General who wanted to give instructions for correspondence for ministers in Vietnam and Thailand. It was the Complainant who raised the issue of recent unpleasantness of which he had become the object since reporting problems in the accounts of the OIE’s Regional Representation for the Americas. The Director General’s only comments were that the Complainant was not a target of any harassment, that the Complainant would receive a reply to his notes, and that the Complainant would not have a chance of winning a legal case if he attempted that approach.

2.3.3.2

The OIE, tacitly, claims that the Complainant had a chance of expressing his views on the accounts of the OIE’s Regional Representation for the Americas during a working meeting.

It is noteworthy that this claim is made for the first time in the OIE’s Reply of 21 June 1999.

The OIE omits to indicate the date of the supposed working meeting and presents no supporting evidence. The Complainant assumes the OIE is referring to a brief meeting held in early December. At this meeting the Head of Department, the Accountant, and maybe also the first or second temporary book-keeper “participated” (the Deputy was present in the room but was otherwise employed).

The “working meeting” consisted in the Head of Department expressing his thoughts that maybe expenses had been counted twice. The Complainant was not in a position to make any comment on the Head of Department’s theory as the file was no longer at the Complainant’s disposal (see 2.2.4 above) and the Complainant was certainly not asked for his opinion. (Under 2.2.5 above the OIE’s claim concerning double-counting of expenses has been dealt with in some detail.)

2.3.3.3

In its Reply the OIE claims that

On 26 February, when he was received by the Director General and then by the Head of the Administrative and Financial Department, the complainant expressed his refusal to comment on the situation. He only expressed his intention to contact the Delegates of the Member Countries and the other correspondents of the OIE.

This claim is untrue and the OIE provides no supporting evidence. It is noteworthy that this claim is made for the first time in the OIE’s Reply of 21 June 1999.

It was the Complainant who urged the Director General to halt the injustice that was being done and the Complainant stated that the Director General’s decision forced the Complainant to take legal action. The Director General stated that he would live with that risk and instructed the Complainant to go to the Head of Department to settle administrative matters.

The Complainant related this matter in his letter of 26 March 1999 to the Director General (cf. Document 45), in which he clearly stated: “Should you disagree with this record of our meeting of 26 February 1999, then kindly inform me promptly.” Neither the Director General nor the Head of Department denied it clearly in any of their subsequent letters. Admittedly there is the sweeping and vague statement in the Director General’s note of 6 April 1999: “you have on many occasions had the opportunity to express your position both verbally and in writing” (cf. Documents 46).

The Complainant’s decision to inform the Delegates was taken subsequently to the dismissal after the Complainant had carefully considered his duties and options according to the relevant articles of the OIE’s rules. This matter will de discussed further under 2.4.1.

2.3.3.4

In its Reply the OIE claims that the Complainant “had had numerous opportunities to explain his position orally,” that “the factual grounds ... had been the subject of various interviews ... to which the decision refers.” The OIE also claims that “the quality of service and the professional relations of the complainant were continually the subject of comments, complaints and discussions.”

This claim is untrue and the OIE present no supporting evidence. No dates are given. No details on the people supposedly present are given. The OIE produces no such evidence as it can not do so for the simple reason that, apart from the 26 November 1998 meeting at which the Head of Department made his “observations” and gave his new working instructions, there were no such discussions, interviews, comments and complaints. The OIE’s management consistently refused discussion.

The OIE also claims that the Professional Appraisal/Report for 1998 in itself “shows that the complainant was given an opportunity to respond to the complaints and remarks made to him...” Furthermore, the OIE underlines that “the complainant was accorded an interview on two separate occasion with the President of the OIE International Committee.”

The OIE’s implicit claim that the Professional Appraisal/Report for 1998 proves that the Complainant had received fair and objective hearing is ludicrous, as indicates the Complainant’s observations on the form and the overall failure of the OIE to provide supporting evidence for its claims in the Professional Appraisal.

The two “interviews” with the President of the OIE’s International Committee and its Administrative Commission, Dr Norman Willis, were two 10-15 minute meetings in private between the Complainant and the President. During the first, to which the Head of Department summoned the Complainant in writing, the President was introduced to the correspondence between the Complainant and the OIE’s management. The Complainant was given no time to prepare for the meeting and was therefore unable to present any materials supporting his claims and his refutations of accusation and allegations made against him or any evidence pertaining to his observations on the accounts of the OIE’s Regional Representation for the Americas. The President said he would review the correspondence and instructed the Complainant to return the following morning.

During the second meeting, the President stated that he saw two issues: one concerning the Complainant’s work situation and one concerning the verification of the accounts of the Regional Representation. He considered the first to be a personnel management issue in which he did not wish to interfere, and the second to be an important matter calling for investigation. He wished the Complainant luck and said he would instruct the Director General to ask the Complainant for a note pertaining to the accounts of the OIE’s Regional Representation for the Americas.

The two short meetings with the OIE’s President certainly did not constitute anything close to fair hearing of the matters and accusations at hand. The “discussion,” led by the OIE’s President, was most cursory and superficial and was dedicated almost exclusively, in its brevity, to the accounts of the Regional Representation. There was no “discussion” on specifics relating to either of the three points held against the Complainant in the Annual Professional Appraisal.

2.3.3.6

In this context, the Complainant draws the Tribunal’s attention to the revealing fact that the OIE does not include the Complainant’s note of 24 February 1999 as evidence of fair and objective hearing. The reason for this is significantly clear:

It is clear from the evidence and the sequence of events that the Complainant’s note of 24 February 1999, requested by the President via the Director General, was irrelevant for both the President the Director General of the OIE. On 19 February 1999, the President told the Complainant that he would demand this note. The note was subsequently submitted on 24 February and it cited the two meetings between the Complainant and the OIE’s President on 18 and 19 February 1998.

On 19 February 1999 the Director General informed the Complainant of the Administrative Commission’s “confidence in the position [no details given] adopted by the Director General” regarding the Complainant. The Director General’s note refers to only the 18 February meeting. This clearly shows that the OIE did not consider the Complainant’s meetings with the President or the note requested by the President as significant factors. The Administrative Commission expressed its “confidence” without ever having seen, as it did not yet exist, the Complainant’s note on the annual professional evaluation and the accounts of the OIE’s Regional Representation for the Americas.

In its Reply of 21 June 1999, the OIE addresses the Complainant’s claim that the “decision [of 26 February 1999] is an integral and unitary part of the moral harassment and hidden disciplinary measures ... to which the Complainant was subjected” and in reply the OIE states that

neither the services of the complainant nor his behaviour could in any was have justified disciplinary measures ... [i]t was in no way the intention of the Director General of the OIE to terminate the contract of employment on disciplinary grounds, without respecting the disciplinary procedures and in so doing abuse his authority.

CHAPTER IX

DISCIPLINARY MEASURES

Article 9.1.

Those staff members who fail in their professional duties shall be liable to disciplinary action in accordance with the seriousness of their offence.

Article 9.2.

The Director General shall apply the following disciplinary measures:

a. warning;
b. reprimand;
c. temporary discontinuance of work with or without salary.

The following disciplinary measures:

d. withholding within-grade increase;
e. demotion;
f. dismissal,

shall be proposed by the Director General to the Administrative Commission who shall decide on the matter after hearing the staff member’s point of view.

1. the Complainant did not prepare documents “in accordance with the habitual formats used by officials of the OIE” and that working documents prepared for a meeting in November “did not conform to OIE practices nor did it meet OIE standards” ;
2. the Complainant had translated and, without authorisation, transmitted a draft proposal to the Thai Government ;
3. the Complainant, through his lack of “professionalism,” endangered the preparation of a meeting ;
4. the Complainant was “threatening” and “brutal” in his correspondence and dealings with staff and inconsiderate to OIE suppliers ;
5. the Complainant did not “succeed in mastering completely the different aspects” of financial follow-up.

The Complainant recalls that in its Reply the OIE has added to those accusations the following:

1. the Complainant declined to perform duties directly demanded by the Director General ;
2. the Complainant delayed a transfer that he had been instructed to perform ;
3. the Complainant’s work and behaviour had given cause for concern from the first months of his service ; and
4. constant comments were made against the Complainant, etc.

Considering the accusations made against the Complainant, both before and after the Director General’s decision of 26 February 1999, and Article 9.1 of the OIE’s Staff Regulations, one must wonder why the OIE has disciplinary rules (which clearly state that they shall be applied). It is unreasonable to not consider the supposed actions, behaviours, etc. on behalf of the Complainant as constituting failure in his “professional duties” that should have made him “liable to disciplinary action in accordance with the seriousness of [his] offence”. Yet no warning was made. No reprimand was expressed. The Complainant was not ordered to discontinue work temporarily.

The OIE wants the Tribunal to believe that the importance of the alleged failings on the Complainant’s part were not serious enough for the OIE to be obliged to make use of its statutory rules concerning staff members that fail in their duties, but that these failings were serious enough to justify termination of his contract with the motivation that his services had ceased to be satisfactory, and that this behaviour and the OIE’s decision of 26 February 1999 do not indicate a hidden disciplinary measure.

If the Complainant’s services had actually been as the OIE claims, the OIE would and should have applied its disciplinary rules. The OIE did not do so. The combination of the OIE’s affirmation that “neither the services of the complainant nor his behaviour could in any was have justified disciplinary measures,” the nature of the OIE’s accusations against the Complainant, and the binding rules laid down in the OIE’s Staff Regulations, is proof of the OIE’s abusive and inconsiderate attitude towards the rights of the Complainant, the OIE’s disregard for its own rules, as well as proof that the OIE’s accusations were groundless.

In its Reply of 21 June 1999, the OIE informs the Tribunal of:

1. the Complainant’s efforts to inform the Governments of the OIE’s Member States of his dismissal and the event connected to it, by means of placing at the disposal of their Delegates to the OIE a web site containing copies of the correspondence between the Complainant and the OIE’s management, and providing the Delegates with a copy of the text of his Brief to the Tribunal;

2. the Complainant’s letters to the OIE’s External Auditor, Mr Jacques Berthe, informing him of the Complainant’s dismissal and his observations on the accounts of the OIE’s Regional Representation for the Americas; and

3. the facts that the Complainant “preferred to contact the Director General by means of registered letters with confirmation of receipt,” that the Complainant contested the calculation of moneys owed to him, and that the OIE has sent a note to the French Ministry of Foreign Affairs regarding the Complainant’s Carte spéciale.

These matters, although not relevant for the Tribunal’s deliberations on the legality of the Director General’s decision of 26 February 1999, are probably mentioned in order to cast doubt on the Complainant’s professional integrity and “personality.”

2.4.1 Information to Delegates of OIE Member States

Indeed, on 9 March 1999 the Complainant placed copies of the correspondence between himself and the OIE on an internet site and informed the Delegates of Member States (and all persons mentioned in the materials) of its existence. On 11 March 1999, the Complainant, having given the Delegates two days to take part of and copy the materials, removed the site from the internet in order to avoid that any non-OIE parties come across it. Indeed, on 19 April 1999 the Complainant sent copies of his 6 April 1999 Brief to the Delegates.

Considering:

1. the Complainant’s duty towards the international community and his duty, due to Article 1.1 of the OIE’s Staff Regulations, to “discharge [his] functions and to regulate [his] conduct with the sole interests of the Office in view” and his obligation, due to Article 1.10 of the OIE’s Staff Regulations, to “exercise in all loyalty, discretion and conscience the functions with which [he has] been entrusted in the capacity of international civil servant of the Office” (cf. Document 2); and

2. the Complainant’s well-documented knowledge and examples (dubious accounting habits, non-respect of OIE International Committee resolutions, non-respect of staff regulations, harassment, etc., see 3. below) that the OIE’s management is unworthy of the trust placed in it by the Member States of the organisation, it was the Complainant’s duty to inform the Delegates of the OIE’s Members States of these matters. In doing so, the Complainant was fulfilling the obligations laid on him by the OIE’s statutory texts and basic principles of responsibility and integrity that should guide the conduct of an international civil servant. The method employed by the Complainant to contact the Delegates of the Member States fully respected the Complainant’s obligation for discretion.

The OIE’s management may interpret the “interests of the Office” to be an obligation of “loyalty [and] discretion” on behalf of staff members towards the individual office holders Jean Blancou (Director General), Guy Jannot (Head of the Administrative and Financial Department) and Gary Sutherland (Deputy), but the Complainant refuses this interpretation.

An international civil servant’s duty and loyalty is, in the first instance, towards the organisation in whose employ he is, in the second towards the member states of the organisation, in the third, final, and highest instance towards the citizens whose taxes fund the activities of the organisation. It is the duty of any civil servant who is aware of abusive practices within an organisation to denounce such practices in exactly that order, a line of action the Complainant is following and shall continue to follow.

2.4.1.1 Missing testimonial

With its Reply of 21 June 1999, the OIE submits the Complainant’s web site which contained copies of the correspondence between the Complainant and the OIE. The OIE has omitted to include a page (and only this one page) of the web site which contained a testimonial in the Complainant’s favour provided by a senior French civil servant working for the OIE (see the last page of the OIE’s submission, the link Testimonial).

Upon the request of this civil servant, the Complainant limited the usage of this testimonial to the Delegates of the Member States of the OIE and did not, regardless of its pertinence and value, submit it to the Tribunal with his Brief of 6 April 1999. Considering that the OIE has, in its Reply of 21 June 1999, submitted the Complainant’s web site and also made slanderous attacks on the Complainant’s personality, the Complainant, for the sake of completeness, provides the Tribunal with a copy of the Testimonial (cf. Document 47) and the clarification made regarding one point in it (cf. Document 48).

2.4.2 Information to the OIE’s External Auditor

Indeed, on 9 and 19 April 1999 the Complainant sent letters to the OIE’s External Auditor, Jacques Berthe. For the same reasons as for the communication to the Delegates, and in order to counter any claims by the OIE that the Complainant had committed faults in his work and to ensure that the External Auditor was made aware of the Complainant’s view, this was a logical and necessary act.

2.4.3 Use of registered post; moneys owed; Carte spéciale

Indeed, the Complainant quickly drew the conclusion that he needed to document events and communications with the OIE as the organisation was not following its rules and was manifestly disinterested in truth and proper procedure concerning criticism and professional appraisals. If the OIE was acting in good faith, why would a normal means of protection and record-keeping on behalf of a staff member cause it such dismay? The OIE’s own rules for disciplinary measures and professional appraisals stipulate safeguards, notably counter-signatures, intended for evidence purposes.

Indeed, the Complainant disagreed with the calculation of moneys owed to him, as the OIE decided that his employment ended on 26 February 1999 and not at the end of the three month notice period, that is on 31 May 1999. The Complainant still considers this method to be blatantly unfair as it causes him financial loss and also has bearing on his coverage by the French Social Security system, but the Complainant has concluded that the competent French authorities are the more appropriate means for redress on this point.

As regards the matter of the Carte spéciale [the official identity card issued to all foreign employees of foreign missions and international organisations] the Complainant can only state that the French Ministry of Foreign Affairs’ absence of contact with the Complainant on this point may be due to the interest taken by French Government entities into matters relating to the management of the OIE by French civil servants (the Director General, the Head of Department and the Head of Information and International Trade Department) that are on leave of absence to work for the OIE.

Considering the minor sums involved in the discrepancies of the accounts of the OIE’s Regional Representation for the Americas at 30 September 1998 and the absence of professional shortcomings on behalf of the Complainant, one must wonder why the OIE got rid of the Complainant. Evidently, the Complainant cannot prove why the OIE found it so important to get rid of him, but he can speculate based on his observations from his 15 months of active service within the OIE.

It is the Complainant’s reasoned belief that the OIE wanted to get rid of him for the simple reason that at least the Head of Department, his Deputy and the Director General feared the possible effects of his attitude concerning performing his duties with integrity and conscience. In an organisation where financial and other management is arbitrary and determined according to motives of personal gain, the Complainant’s sense of professional integrity could but cause discomfort.

Senior officials in the OIE have reason to avoid questions being asked on any aspect of management, as such questions might lead to others regarding the financial and personnel management of the OIE. By dismissing the Complainant the OIE probably hoped that such embarrassing questions be avoided. Below, the Complainant provides information on a number of events or practices for which the Complainant holds proof and which indicate the OIE’s disrespect for rules and correct procedure.

3.1 Disregard of Resolutions passed by the OIE’s International Committee

On 19 May 1995, the International Committee of the OIE, the highest decision making body of the organisation, passed Resolution No. XIX concerning the Mandate and Rules for OIE Regional Representations (cf. Document 49). This text specifies, under II.2, that the length of the Coordinators contracts should be three years. As a rule, the contracts signed by the Director General and the Coordinators prescribe a shorter duration (cf. Documents 50, Article II, and 51).

3.2 Misleading information to Delegates of Member States

In October 1998, upon the Head of Department’s proposal (cf. Document 51), the Director General, wrote to the members of the OIE Regional Commission for the Middle East, informing them that the Lebanese Government had proposed Dr Ghazi Yehya (former Lebanese Delegate to the OIE, former member of the OIE Administrative Commission, former External Auditor of the OIE) for the position of Regional Coordinator for the Middle East (cf. Document 52).

After verifying the dossier, the Complainant informed the Head of Department that there was no trace of a Lebanese Government proposal concerning Dr Yehya for the position of Regional Coordinator (cf. Document 53). The Head of Department responded that “indeed, all has been verbal, but I think the Lebanese Government is in agreement” (cf. Document 54).

3.3 Conflicts of interest, regular extraordinary bonuses and on-my-honour reimbursements

The OIE’s Regional Coordinator for Eastern Europe, Dr Nikola Belev, who in this capacity spends organisation funds, is also a member of the OIE’s Administrative Commission, a body with supervisory functions in the fields of financial management (cf. Document 55) (and, as it has been indicated elsewhere in the Brief and in the Rejoinder, in the area of dealing with staff issues).

At the end of 1998, the Director General granted this officer, who fulfils conflicting roles within the OIE, “an additional and exceptional payment” of three months wages (cf. Documents 17 and 56). On the issue of this “exceptional” wage payment, the Accountant subsequently stated “The 7500 USD in addition to his quarterly salary is exceptional (once a year only)...” (cf. Document 57).

Furthermore, this officer, with responsibilities for maintaining respect of the OIE’s Financial Regulations is regularly reimbursed by the OIE based not on original receipts or even copies thereof, but based on written declarations for items such as telephone and fax, and secretarial and translation services (cf. Document 58). This practice is in breach of OIE financial regulations, see 3.4 below. During the period 1993-1998, the total amount of such unofficial reimbursements for such purposes amounted to approximately 39 700 USD (17 700 USD for telephone and fax).

3.4 Disregard of the OIE’s Financial Regulations

Article 10 (on Internal Control) of the OIE’s Financial Regulations stipulates that the Director General “shall fix the rules and methods of the accounting principles to be applied” within the OIE, and Article 13 (on Delegation of Authority) of the OIE’s Financial Regulations (cf. Document 59) stipulates that:

The Director General may delegate to other members of the Office all powers, he considers necessary to ensure the correct implementation of these Regulations. These officials shall not delegate the powers conferred on them by the Director General.

Patrick, Attached: photocopies of Dr Belev’s plane tickets. He keeps the originals in his archives. The photocopies are fine for OIE reimbursement purposes. Gary.

In 1991, the Director General took Decision 20.203 concerning OIE staff members who are French civil servants, among them the Head of Department, on loan to the OIE from the French civil service (cf. Document 62). This matter is dealt with in some detail in Appendix I but can be summarised as follows:

This decision permitted French civil servants on loan to the OIE and the Director General himself to benefit from the OIE Pension Fund and it provided them with an opportunity to circumvent French rules and thereby to illicitly benefit from two pension plans. Furthermore, it placed French civil servants on a privileged basis compared to that of other OIE staff.

Decision 20.203 was taken ultra vires by the Director General as it did not conform to the requirements of several OIE rules (cf. Document 63). For example, Decision 20.203 modified a statutory text of the OIE and should have been taken by the OIE’s International Committee. Decision 20.203 created new financial charges to the OIE that should have been approved by the International Committee.

The Director General took Decision 20.203 disregarding the Staff Representatives and he subsequently refused that the OIE pay for a legal counter-opinion to the legal opinion obtained (after the taking of the decision...) and paid by the OIE. The Staff Representatives presented several arguments against the proposal (creation of privilege, illegality vis-à-vis OIE rules and French legislation) and presented alternatives (de-linking from the French system, unemployment insurance for other OIE staff), to no avail. This matter clearly shows the OIE management’s complete disregard for rules and fair treatment of staff.

4.1 Summary

In this Rejoinder, the Complainant has attempted to provide the Tribunal with arguments, information and evidence replying to the claims made in the OIE’s Reply of 21 June 1999 and relevant for the Tribunal’s decision concerning the Complainant’s claim of 6 April 1999:

the Director General’s decision to terminate his employment is in irregular form, is tainted with procedural irregularities, abuse and illegality and is based on incorrect facts, and that the decision is an integral and unitary part of the moral harassment and hidden disciplinary measures, as evidenced by the behaviour and claims of the OIE’s managers, to which the Complainant was subjected to during the four month period preceding the Director General’s decision.

In this Rejoinder, the Complainant has indicated or dealt with:

1. untrue claims in the OIE’s Reply; unevidenced claims made in the OIE’s Reply;
 

2. claims by the OIE which had not been made at the time of the Director General’s decision of 26 February 1999 (and therefore could not be responded to by the Complainant);
 

3. the credibility of the OIE’s claims (e.g. in respect to its claims relating to accounting matters);
 

4. the incoherence of the OIE’s claims (e.g. in respect to the OIE’s claims on the Complainant’s services on the one hand and the binding disciplinary rules on the other);
 

5. the blatant misreading by the OIE of its own statutory texts (e.g. in respect to Article 40.12 of the Staff Rules);
 

6. the Complainant’s efforts to draw the Member States’ attention to wrongdoing within the OIE;
 

7. the OIE’s motives for bias against the Complainant (e.g. the general state of arbitrariness and impropriety within the organisation). The Complainant has provided several documents supporting his analysis of the OIE’s Reply.

With this Rejoinder (in conjunction with the Brief of 6 April 1999 and all the documents submitted in evidence) the Complainant has proven beyond any reasonable doubt:

1. that the OIE’s Reply is a document characterised by untruths, hearsay, lack of evidence, irrelevance, misreading and incoherence;

2. that the OIE’s Reply in itself is evidence of the OIE’s abusive attitude concerning the treatment of the Complainant and his rights;

3. that the OIE has committed breach of several of its own rules;

4. that the OIE has committed breach of several of the principles which the Tribunal has stipulated should govern the behaviour of international organisations towards their staff members, such as the duty to treat staff members with a spirit of good faith, consideration, objectivity and fairness, and that “the onus of proof lies on the organisation to bear out its allegations and insinuations” ;

and therefore that his overall claim against the OIE is correct and corresponds to the factual and legal situation.

4.2 Concluding remarks

Since the Complainant was dismissed by the Director General at the end of February 1999, the Complainant has been unable to secure regular full-time employment and has been living off temporary assignments and his savings. (The Complainant does not benefit from any unemployment support scheme and his social security coverage is at present unclear.) The Complainant finds himself in a bind: if he leaves the OIE on his Curriculum Vitae he may be likely to find employment in line with his training and international civil service experience but he risks being black-balled by the OIE if someone contacts the organisation for a reference; if he drops the OIE from his CV he substantially lowers any hopes of such employment.

The Complainant can only hope the Tribunal measures the full extent of the material and professional damage inflicted by the OIE.

During the four month period that preceded the Director General’s dismissal decision of 26 February 1999, the Complainant had to face the combined pressure of the Head of Department, his Deputy and the Director General unassisted by any form of Staff Committee or other formal support counter-balancing and tempering the criticism and harassment of the three mentioned office holders. This experience, as well as the dismissal decision itself, has been as solitary and unjust as it has been humiliating and stressful.

The Complainant can only hope that the Tribunal measures the full extent of the moral damage inflicted by the OIE.

Considering the entire body of arguments and evidence at hand and the statements immediately above, the Complainant hopes that the Tribunal will deem his claim against the OIE justified and that the Tribunal will order the OIE to pay and perform all the Relief demanded in the Complaint Form submitted on 6 April 1999.

Paris, 9 September 1999

Patrick Reis-Ekelund

At the OIE, two senior staff members, Messrs Guy Jannot and Thierry Chillaud, Head of the Administrative and Financial Department and Head of the Information and International Trade Department, respectively, are French civil servants on loan from the French Ministry of Agriculture to the OIE. Whether Director General Jean Blancou shares this status is unknown to the Complainant.

On 14 March 1991, Director General Blancou took Decision 20.203. It is not clear which of this decision’s characteristics is the most noteworthy: its breach of OIE and French civil service rules; its disregard of correct procedure and equity between staff members; or its self-interested nature on behalf of Messrs Blancou, Chillaud and Jannot. However one looks at the issue, it is highly demonstrative of the OIE management’s attitude towards the right’s of staff and proper procedure and therefore of direct relevance to the Complainant’s claim.

The OIE’s statutory texts (cf. Document 63) stipulate that the OIE International Committee, assisted by the Administrative Commission, approves the annual accounts and budget (1) and determines the amount to be withheld for staff pensions (2). Modifications to OIE statutory texts which involve new financial charges must be approved by the Member States (3) and the Director General shall present to the International Committee an annual report on his management. (4) Furthermore, the Committee sets the staff regulations and makes “any other provisions necessary for the functioning of the Office. Participating States shall be informed of all such regulations and provisions, which may not be modified without their consent.” (5)

The OIE’s statutory texts stipulate that the staff members benefit from an OIE Pension Fund (6), closely linked to the French State Pension Fund. The Internal Rules of the OIE Pension Fund stipulate that it is administrated by the Director General with wide-ranging powers but under the supervision of the External Auditor appointed by the International Committee.(7, 8) Furthermore, the Internal Rules stipulate that the accumulated amount of the state and OIE pensions can not exceed 80% of the reference salary.(9)

In 1989, the year Dr Jean Blancou became Director General, the French Prime Minister’s office, in a position-paper on the career and pension rules for French civil servants on loan to international organisations, stated:

Finally, article L.87 permits the addition of pensions earned for services for on the one hand the French administration and for an intergovernmental organisation on the other, with the clear understanding that the same period of service can not be taken into account by two different pension systems.(10)

Article 1: For the staff members mentioned above, the words “the accumulated amount of the French social security system’s pension and the OIE’s complementary pension” in Article 3 (c) of the Appendix to the Internal Rules of OIE Pension Fund ... are replaced by “the amount of the complementary pension.(11)

Article 2: An additional employer contribution, corresponding to the benefits mentioned in Article 1, shall be paid by the OIE...(12)

Article 3: Article 1 of the Appendix to the Internal Rules of OIE Pension Fund is replaced by ”belonging to either of the categories I, II, III or IV defined in Appendix B to the Headquarters Agreement signed on 21 February 1977.” (13)

Article 1 permits French civil servants on loan to the OIE to benefit from the OIE Pension Fund, something they were not allowed to do previously as they, due to their status, already have full coverage through their French civil service pension;

Article 1 present French civil servants on loan to the OIE with the opportunity to circumvent the rules of their civil service and thereby illicitly benefit from two pension plans; a situation expressly forbidden in the text from the French Prime Minister’s office;

Article 1 places French civil servants on loan to the OIE on a privileged basis compared to that of other OIE staff, as they benefit from full job security (other staff members do not benefit from unemployment insurance or the automatic grade advancement of French civil servants);

Article 2 modified an OIE statutory text and involved new financial charges to the OIE;

Article 3 would mean that point (b) of Article 1 of the Appendix to the Internal Rules was dropped. Point (b) seems to have excluded the Director General from benefiting from the OIE Pension. (14) It is noteworthy that this article of the Director General’s decision is not given in the OIE publication “Textes applicables aux personnel” in which this change is simply described as “modifies article 1.a of the Appendix to the Internal Rules of the OIE’s Pension Fund linked to social security.” (15)

Legal status of Decision 20.203:

Although the Internal Rules of the OIE’s Pension Fund give the Director General wide powers to manage the OIE Pension Fund, these powers emanate from the International Committee and any change to these rules must be made according to the procedures and by the authority creating them. The Director General did not create the Internal Rules, the OIE International Committee did; therefore the Director General acted ultra vires when taking Decision 20.203;

Decision 20.203 modified a statutory text of the OIE and should have been taken by the OIE’s Member States. Such approval was neither sought, nor obtained by the Director General. The text of his decision clearly proves this as it does not refer to even consultation with the OIE Administrative Commission, less a Resolution passed by the International Committee. This is in clear breach of Article 2 of the OIE’s Organic Rules and Article 15 of the OIE’s Organic Statutes. (16)

Decision 20.203, by giving French civil servants and himself access to the OIE Pension, created new financial charges to the OIE. This is in breach of Article 2 of the OIE’s Organic Rules.

Decision 20.203 created a situation in which a certain group of staff members, French civil servants, were granted a privileged position open to them only in their capacity as French civil servants and citizens. (17) This is in breach of the norm calling for equal treatment of staff members.

The manner by which the Director General took the decision also proves its abusiveness:

On 8 March 1991, in a meeting concerning the OIE Pension Fund and in which the Director General, the Head of the Administrative and Financial Department, the Chartered Accountant and the two Staff Representatives to the Fund participated, the Director General proposed changes to the Internal Rules of the OIE Pension Fund; changes which were to become Decision 20.203.

On 13 March 1991, the Staff Representatives informed the Director General that they would deliver a reasoned opinion on the Director General’s proposal of 8 March. On 14 March 1991, Director General Blancou, took Decision 20.203. It is noteworthy that the Director General claims that the Staff Representatives had been heard (cf. Document 62).

On 4 April 1991, the Staff Representatives informed the Director General and Head of the Administrative and Financial Department of their opposition to the Director General’s proposal/decision.(18) The Staff Representatives presented several arguments against the proposal (creation of privilege, illegality vis-à-vis French legislation) and presented alternatives (de-linking from the French system, unemployment insurance for other OIE staff). Furthermore, the Staff Representative protested against the fact that the Director General had taken Decision 20.203 without awaiting their opinion.

On 23 December 1991, the legal council paid by the OIE, rendered his opinion that the Director General’s Decision 20.203 of 14 March was legal and appropriate. (19)

On 27 January 1992, the Staff Representatives wrote to the Director General to protest against the fact that he had not agreed to pay for a counter-opinion to that paid by the OIE and informed him of the results of the reasoned opinion they had obtained from free legal council.

The opinion obtained by the Staff Representatives (20) agreed with their analysis of the decision. The opinion stressed that the International Committee was the appropriate body to take decision 20.203 as the change of a rule must be made according to the procedure used to create it. It was noted that there appeared to exist no calculation of the financial effects of decision 20.203 although the OIE’s rules state that the OIE’s assets are to cover any shortfall.

On 29 January 1992, Director General Blancou, sent a note, drafted by the Head of the Administrative and Financial Department, Mr Guy Jannot (21), to all staff informing them of Decision 20.203. With this note the OIE paid lawyer’s opinion on the decision was attached.

On 7 February 1992, the Head of the Information and International Trade Department, Mr Thierry Chillaud, wrote an open letter (22), distributed to all staff members. In his letter he made personal attacks on the Staff Representatives and clearly indicated that the Administrative Commission and the International Committee of the OIE had not been informed of the Decision 20.203 of 14 March 1991. He also declared himself candidate as Staff Representative.

In summary:

The Director General abused his authority in relation to the OIE’s Member States and took a decision that served his own interests and those of French civil servants on loan to the OIE;

The Director General completely disregarded the opinion and rights of the Staff Representatives, and thereby the rights of all staff members.

The sequence of events and legal texts described above clearly show the OIE management’s complete disregard for correct procedure and fair treatment, and it relates directly to the Complainant’s experience with and claim against the OIE.

(1) OIE Organic Statutes, Article 15
(2) OIE Organic Statutes, Article 14
(3) OIE Organic Rules, Article 2
(4) OIE General Rules, Article 34
(5) OIE Organic Statutes, Article 15
(6) OIE Staff Rules, Article 60.5 (OIE, “Textes applicables au personnel,” p. 35)
(7) Internal Rules of the OIE’s Pension Fund, Articles 6, 7, 8 and 9 (OIE, “Textes appl. au pers.,” p. 56-57)
(8) The External Auditor being Mr Jacques Berthe, whose auditing has been discussed in detail under 2.2.5.2.
(9) Appendix to the Internal Rules of OIE’s Pension Fund, Article 3(c) (OIE, “Textes appl. au pers.,” p. 64).
(10) Dfi, Premier Ministre - Le Délégué aux fonctionnaires internationaux: “Dossier d’information N° 6 - Les fonctionnaires français de l’état dans les organisations internationales intergouvernementales,” 12/1989.
(11) OIE, “Textes applicables au personnel,” p. 66
(12) OIE, “Textes applicables au personnel,” p. 67
(13) OIE, “Textes applicables au personnel,” p. 67
(14) Point (b) required that beneficiaries of the complementary OIE Pension Fund hold contracts according to articles 40.6 and 40.7 of the Staff Rules; neither of these articles apply to the Director General.
(15) Which is a rather odd statement, as the exact text of article 1.a was: ”belonging to either of the categories I, II, III or IV defined in Appendix B to the Headquarters Agreement signed on 21 February 1977.”
(16) The Complainant has not been able to obtain a copy of the Annual Report for the year in question. In that report any approval or Committee Resolution granting French civil servants preferential status would be noted. If the OIE were to produce such materials or any other having bearing on this matter, the Complainant reserves the right to verify and respond.
(17) It is noteworthy that these persons could have de-linked themselves from the French civil service’s pension, by declaring themselves hors cadre, and thereby be able to partake in the OIE Pension Fund in harmony with pre-20.203 Decision rules and French regulations (but, of course, this would have put on hold their civil service pension for the duration of their hors cadre period...).
(18) Staff Representatives, “Avis N° 1, remis à Monsieur le Directeur Général de l’OIE les 4 avril 1991 et à Monsieur le Chef du Service administratif le 4 avril 1991 - Décision 20.203 du 14 mars 1991 - Agents en détachement à l’OIE,” 4 avril 1991.
(19) Jean-Didier Sicault, “Avis juridique sur la décision N° 20.203 du Directeur général de l’O.I.E. en date du 14 mars 1991, relative au régime de retraite applicable aux agents non assujetis au risque vieillesse de la sécurité social française.”
(20) “Avis sur la responsabilité des représentants du personnel à la Caisse de Retraite complémentaire de l’OIE et sur la Décision N° 20.203 du Directeur Général de l’OIE en date du 14 mars 1991.”
(21) As shows the reference, GJ/SC 20.048, meaning that Guy Jannot was the author.
(22) Thierry Chillaud, “Lettre ouverte à Mademoiselle Gill Dimiltis [sic, should be Dilmitis] et Monsieur Bernard Vannereau.”