Judgment No. 522
Decision
1. THE DECISION OF 15 OCTOBER 1981 IS QUASHED.
2. THE APPEALS BOARD IS DIRECTED TO PROCEED FORTHWITH WITH THE CONSIDERATION ON THE MERITS OF THE COMPLAINANT'S APPEAL.
3. THE ORGANIZATION IS ORDERED TO PAY TO THE COMPLAINANT $4,000 IN RESPECT OF HIS LEGAL COSTS.
Summary
Extract:
For having failed to indicate before the Appeals Board that the internal appeal against a decision dating from 11 December 1980 was out of time [the organization had argued on the basis of a letter of 22 November 1978 which cannot, according to the Tribunal, be regarded as a decision], the organization cannot to any useful purpose put the argument before the Tribunal. The argument is neither clear nor binding. It is unclear why the organization did not take the point during the internal appeal. In failing to do so, it may have prejudiced the complainant's position.
Keywords
organisation; receivability of the complaint; internal appeal; new plea; time bar; reply
Consideration 13
Extract:
According to a staff rule, an appeals board shall advise the Director-General "when a staff member lodges an appeal against an administrative decision 'alleging that it conflicts with the terms of his appointment or with any regulation or rule'." A decision therefore which is not in conflict with the complainant's terms of appointment or with any regulation or rule is not appealable."
Keywords
internal appeals body; competence; staff regulations and rules; enforcement; provision; contract
Consideration 15
Extract:
"Time bars are essential to efficient administration, but they are not devised as a trap for what the organization in its argument describes as the 'legally non-vigilant person'."
Keywords
time limit; good faith; purpose
Consideration 14
Extract:
"It is open to a Director-General to settle a dispute at any time so long as he uses language which shows clearly that he is giving his final decision. A formula that is commonly used by a number of executive heads is to say plainly that what has been written is a final decision, that [...] the staff member can appeal against it within the specified period."
Keywords
decision; formal requirements
Consideration 18
Extract:
"While it is generally to be expected that an organisation will lay its whole case on the merits before the Appeals Board so as to enable that body to give the best an most complete advice to the Director-General, its omission to take a particular point will not as a general rule prevent the consideration of that point by the Tribunal. This is because it is the duty of the Tribunal to arrive insofar as it can at a just decision on all the merits."
Keywords
organisation; receivability of the complaint; new plea; reply
Consideration 23
Extract:
An objection to receivability resting on the lateness of the complainant's internal appeal fails. The matter should be examined by the Internal Appeals Body on the merits. [The problem is one of copyright.] Compensation for "legal costs incurred to date. The other remedies requested do not arise for consideration at this stage."
Keywords
costs; decision quashed; case sent back to organisation; further submissions on the merits; reply confined to receivability
Consideration 18
Extract:
"The function of the Tribunal is to do justice between the parties according to the merits of the case but subject to the rules of procedure by which it is governed. The rules as to receivability, which are procedural rules, are designed to protect the organisation against what might be a greater injustice to it if access to the Tribunal was totally unrestricted."
Keywords
procedure before the tribunal; competence of tribunal; purpose
Consideration 19
Extract:
For the jurisdiction of the Appeals Board to be waived, Staff Rules require the Director-General's consent, and no time limit is prescribed for his decision. "The just solution may be that, provided that the complainant is not dilatory in applying for the consent of the Director-General, time does not begin to run until after the Director-General has communicated his decision."
Keywords
decision; direct appeal to tribunal; date of notification; start of time limit; request by a party
Consideration 15
Extract:
The complainant's letter of 29 November shows that he did not regard the letter of 22 November as a decision. "The good faith that is part of the link between the organization and its members requires that neither side should take advantage of an obvious misconstruction by the other of its intentions. The silence of the organization when it must clearly have seen that the complainant was [on its view] misreading the letter of 22 November prevents it from setting up that letter as a decision."
Keywords
decision; good faith; intention of parties; date
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