Judgment No. 256
Decision
1. The impugned decision is quashed insofar as it fails to acknowledge that the issue on 29 November 1973 of an attestation for the benefit of the complainant s wife without consulting him beforehand constituted a breach of duty.
2. The Organisation shall pay the complainant 1,000 Swiss francs.
3. The complainant's other claims are dismissed.
Consideration 3
Extract:
"In certain circumstances information which third parties seek from the organisation about its officials may be used to the prejudice of the latter. Hence, in its capacity as an employer bound to safeguard the lawful interests of its staff members insofar as is compatible with its own interests and those of third parties, the organisation is as a rule bound to inform its staff members of requests for information about them before answering such requests, in particular to enable staff members to prevent the injurious effects of using the information divulged."
Keywords
organisation; communication to third party; personal file; organisation's duties; duty to inform
Consideration 2
Extract:
The material provision "provides for the establishment for each official of a personal file which shall be confidential. The confidential character of the file does not, however, apply to information which, though it may be deduced from the personal file, may be as readily obtained from other sources such as publications of the organisation or public records." In the present case the information given, even if it might also have been found in the complainant's personal file, was not confidential within the meaning of the provision in question.
Keywords
confidential evidence; personal file; criteria; definition; publication
Consideration 3
Extract:
The organisation provided a third party with an attestation on the complainant's recruitment and private life. "[I]n failing to inform the complainant of the request for information about him the organisation failed to perform a duty by which it was bound [...] The fact that the attestation contained only information which had been published or was a matter of public knowledge is not decisive. The most that can be said is that that fact would have relieved the organisation of the duty to consult the complainant if the information sought had plainly not been of such a nature as to cause him any prejudice whatever. Such was not the case, however".
Keywords
injury; confidential evidence; communication to third party; personal file; organisation's duties; duty to inform
Consideration 3
Extract:
The organisation, "in its capacity as an employer bound to safeguard the lawful interests of its staff [...] is as a rule bound to inform its staff members of requests for information about them [...]" This is an implicit statutory obligation. "In view of the possible consequences of a breach it is in fact a legal duty and not just a rule of courtesy or expediency."
Keywords
organisation; communication to third party; personal file; duty to inform; staff regulations and rules; enforcement
Consideration 6
Extract:
The complainant invites the Tribunal to declare that a confidential file has been compiled relating to him; he seeks to be allowed to consult the file and have it destroyed. "These claims are receivable since the complainant has an interest in ensuring that all the documents concerning him should be put in his personal file, to which he has free access under [the applicable provision]. Also receivable are the claims [asking for] a list of the documents to which he is denied access, those claims being implicitly included in his original claims for relief."
Keywords
claim; complainant; receivability of the complaint; cause of action; confidential evidence; disclosure of evidence; personal file; application for quashing; request by a party
Consideration 1
Extract:
The complainant attacks the issue of an attestation containing details of his recruitment and his private life to the lawyer of his former wife. The Tribunal rules that this is indeed a decision but in order for the claim to be receivable, the complainant "must [...] have an interest which is worth safeguarding. On that score there is no doubt."
Keywords
receivability of the complaint; cause of action; communication to third party; personal file
Consideration 4
Extract:
The material provision "provides for the establishment of personal files and gives staff members access at any time to information on their professional situation and in particular reports on their work performance. It also has the purpose of keeping the competent bodies [of the organisation] informed on each staff member's career. Since the provisions were adopted in the interests of staff members as well as of the organisation, it is open to the complainant to allege a breach."
Keywords
personal file; staff member's interest; career; work appraisal; organisation's interest; purpose
Consideration 1
Extract:
The contested act [the issue of an attestation to a third party] is a decision in the true sense of the term. "[T]here is no need for the impugned decision itself to pronounce on the validity of an earlier decision. Otherwise an appeals body could never be called upon to determine the lawfulness of any act other than a decision, and that would run counter to commonly held opinion. It is therefore immaterial in the present case whether or not the issue of an attestation may be regarded as a decision."
Keywords
decision; receivability of the complaint; communication to third party; criteria; definition
Consideration 5
Extract:
Under the Staff Regulations, "any other documents relating to measures officially taken or considered in connection with the official" may be placed in an official's personal file. The text is ambiguous. Narrow construction: measures which give rise to rights or duties. Broader construction: all measures which may affect a staff member. "Literal interpretation not being conclusive, it is necessary to consider the purpose of the [provision] in order to determine its true meaning. [...] Its purpose is to make available information on the professional situation of each staff member." Thus the proper construction is "documents which affect his professional situation."
Keywords
personal file; interpretation; criteria; elements; purpose
Consideration 7
Extract:
"By virtue of Article 4.12 of the Staff Regulations each staff member may freely consult his personal file. Like any public administration, however, the organisation is entitled not to put in an official's personal file some of the documents which concern him, that is keep such documents secret from him."
Reference(s)
Organization rules reference: ARTICLE 4.12 OF ILO STAFF REGULATIONS
Keywords
confidential evidence; disclosure of evidence; personal file; organisation's duties; duty to inform
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