Judgment No. 4682
Decision
The complaint is dismissed.
Summary
The complainant challenges the decision to reject his request for post reclassification.
Judgment keywords
Keywords
post classification; complaint dismissed
Consideration 3
Extract:
The allegation of bad faith, submitted in the complainant’s rejoinder is unproven. Bad faith may not be presumed and the burden of proof is on the party that pleads it (see Judgments 4451, consideration 16, and 4067, consideration 11).
Reference(s)
ILOAT Judgment(s): 4067, 4451
Keywords
bad faith
Consideration 4
Extract:
The Tribunal’s case law holds that time limits serve the purpose of, among other things, creating finality and certainty in relation to the legal effect of decisions. An organisation is entitled to proceed on the basis that a decision which is not challenged within the prescribed time limits is fully and legally effective when the applicable time limit for challenging that decision before the competent internal appeal bodies has passed (see Judgments 4374, considerations 7 and 8, 3940, consideration 2, 3755, consideration 3, 3439, consideration 4, and 2933, consideration 8).
Reference(s)
ILOAT Judgment(s): 2933, 3439, 3755, 3940, 4374
Keywords
time limit
Consideration 4
Extract:
Neither could Judgment 3907 be regarded as a new fact justifying an exception to the time limits for filing a complaint. The Tribunal’s case law states that, since time limits are an objective matter of fact, any other conclusion, even if founded on considerations of equity, would impair the necessary stability of the parties’ legal relations, which is the very justification for a time bar. In particular, the fact that a complainant may have discovered a new fact showing that the impugned decision is unlawful only after the expiry of the time limit for submitting an appeal is not in principle a reason to deem her or his complaint receivable. It is true that, notwithstanding these rules, the Tribunal’s case law allows an employee, concerned by an administrative decision which has become final, to ask the Administration for review, either when some new and previously unforeseeable fact of decisive importance has occurred since the decision was taken, or when the employee is relying on facts or evidence of decisive importance of which she or he was not and could not have been aware before the decision was taken. However, the fact that, after the expiry of the time limit for appealing against a decision, the Tribunal has rendered a judgment on the lawfulness of a similar decision in another case, does not come within the scope of these exceptions (see Judgment 3002, considerations 13 and 14). Only under very special circumstances, did the Tribunal accept that the delivery of one of its judgments could be described as a new and unforeseeable fact of decisive importance, within the meaning of the above-cited case law and could therefore have the effect of reopening the time limit within which a complainant could lodge an appeal (see Judgment 676).
Reference(s)
ILOAT Judgment(s): 676, 3002, 3907
Keywords
time limit; new fact
Consideration 4
Extract:
The complainant cannot benefit from Judgment 3907 by relying on the principles of res judicata or stare decisis in order to elude the time limit for challenging the classification of his post. It must be recalled that Judgment 3907 set aside individual decisions based on Information Circular ICC/INF/2014/011 entitled “Principles and Procedures Applicable to Decisions Arising from the ReVision Project”. It held that pursuant to Presidential Directive ICC/PRESD/G/2003/001 of 9 December 2003, the Principles and Procedures should have been promulgated by an Administrative Instruction or, arguably, by a Presidential Directive. “As the promulgation of the Principles and Procedures by Information Circular was in violation of the Presidential Directive, they were without legal foundation and are, therefore, unlawful as are the decisions taken pursuant to the Principles and Procedures. It follows that the decisions to abolish the complainant’s position and to terminate the complainant’s appointment were also unlawful and will be set aside” (see Judgment 3907, consideration 26). Although the reference to the unlawfulness of “the decisions taken pursuant to the Principles and Procedures” may appear to be made in general terms, Judgment 3907 only concerns the decisions impugned in that case by the complainant who was party to that judgment, and it does not apply to third parties. Judgment 3907 has no res judicata authority in the present case, as the force and effect of res judicata can only be attributed to a judgment rendered between the same parties on the same subject matter, and this is not the case here. It is entrenched in the Tribunal’s case law that there is no exception to the general rule of res judicata, not even when a decision is of “general” application. The judgments of the Tribunal operate only in personam and not in rem. Notwithstanding the generality of the terms in which the Tribunal may dispose of a case before it, the judgment has effect only as between the parties to it (see Judgment 2220, consideration 5). Judgment 3907 has no effect on previously adopted individual decisions which were not impugned in due time (see Judgment 3357, considerations 13 and 14).
Reference(s)
ILOAT Judgment(s): 2220, 3357, 3907
Keywords
res judicata; time limit
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