Internal remedies exhausted (88, 89, 656, 743,-666)
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Keywords: Internal remedies exhausted
Total judgments found: 307
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Judgment 4194
128th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the refusal to consult them concerning the use of external contractors.
Considerations 7-9
Extract:
Each staff member of an international organisation has a right to freely associate and the organisation has a corresponding duty to respect that right. This is a necessary incident of their employment (see, for example, Judgment 911, consideration 3). On the assumption that, as an incident of freedom of association, an organisation has a duty to meet or satisfy a staff representative’s legitimate request for information as an element of a broader obligation to consult (see, for example, Judgment 2919, consideration 15), and fails to do so, then a staff representative would, in that individual capacity and on this assumption, have a cause of action to enforce that duty.
There is no issue that, at the time these complaints were filed, each of the complainants had ceased being a member of the Munich Staff Committee even if one or a number may have held another office as a staff representative. Thus, when the proceedings were commenced in the Tribunal, the foundation of their cause of action had been removed. Their complaints are irreceivable.
This is not a barren technical conclusion. If their complaints were receivable, the merits of the case and the grant of relief would depend on the complainants demonstrating an ongoing right to be provided with the information and a right, if it existed, to continue to require the EPO to do what had been earlier requested. An immediate and probably insuperable problem would arise concerning relief if the complainants were able to establish, on the merits, they had been and were entitled to some or all of the information they had sought or had a right to request that certain things be done. But as they are no longer members of the Munich Staff Committee, they are not now entitled to any information of the type sought in the letter of 17 September 2009 nor to assert a right that the EPO do certain things. However this conclusion is not a barrier, more generally, to the enforcement of a right a member of a staff committee may have to be provided with information or a right to require the organisation to act in circumstances where the membership of the committee fluctuates over time. That is because when a staff representative has asserted a right arising from that status, the assertion or vindication of that right in proceedings before the Tribunal can be pursued by a newly elected staff representative as a “successor in title” (see Judgment 3465, consideration 3).
That would ordinarily involve the relevant committee approving the new staff representative assuming the role of the former staff representative. If approval was given then all steps taken by the former staff representative could be treated as steps taken by the new staff representative. In this way, steps taken by the former staff representative to pursue the grievance by way of internal appeal can be treated as steps taken by the new staff representative. The prosecution of a complaint in the Tribunal by the new staff representative would not be defeated by an argument that the new staff representative had not exhausted internal means of redress. She or he would have done so vicariously because of the actions of the former staff representative.
Reference(s)
ILOAT Judgment(s): 911, 2919, 3465
Keywords:
cause of action; duty to inform; freedom of association; internal remedies exhausted; ratione personae; staff representative;
Judgment 4174
128th Session, 2019
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to place her on leave without pay upon exhaustion of her sick leave entitlements.
Consideration 4
Extract:
The complainant’s reliance on Article VII, paragraph 3, is misplaced. As the Tribunal recalled in Judgment 3975, consideration 5, it is clearly established in the case law that where the Administration takes any action to deal with a claim, this step in itself constitutes a “decision upon [the] claim” within the meaning of Article VII, paragraph 3, of the Statute, which forestalls an implied rejection that could be referred to the Tribunal. In the present case, the complainant’s 10 April 2016 protest against the decision of 11 February 2016 was examined and rejected. Accordingly her complaint cannot be considered receivable under Article VII, paragraph 3, of the Statute. Moreover, although the Director-General’s final decision on that appeal was not taken until 26 March 2018, there is nothing in the complainant’s submissions that would lead the Tribunal to conclude that the delay in taking that decision, which UNESCO acknowledges, had the effect of paralysing the exercise of her right of appeal (see Judgment 2367, consideration 11).
Reference(s)
ILOAT reference: Article VII, paragraph 3, of the Statute
ILOAT Judgment(s): 2367, 3975
Keywords:
direct appeal to tribunal; internal remedies exhausted; receivability of the complaint;
Judgment 4173
128th Session, 2019
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to assign her to another duty station.
Consideration 13
Extract:
In this case, UNESCO’s actions in relation to the internal appeal process constitute a breach of its duty to ensure that the internal appeal was conducted with due diligence and its duty of care owed to the complainant. Additionally, not only did it breach its obligation to ensure that the appeal procedure moved forward with reasonable speed, it effectively precluded the complainant from exercising her right of appeal. In these circumstances, the Tribunal concludes that the complainant exhausted the available means of redress and her complaint is receivable.
Keywords:
internal remedies exhausted; receivability of the complaint;
Judgment 4151
128th Session, 2019
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to select her for a position.
Judgment keywords
Keywords:
complaint dismissed; internal remedies exhausted; receivability of the complaint;
Judgment 4143
128th Session, 2019
Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former official, challenges a letter from the Director of the Human Resources Services rejecting her request for damages and legal costs arising from the fact that the Commission reclassified at grade P-4 the post of Treasurer, which she held at grade P-3 before her separation from service.
Judgment keywords
Keywords:
complaint dismissed; internal remedies exhausted; receivability of the complaint;
Judgment 4141
128th Session, 2019
Technical Centre for Agricultural and Rural Cooperation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision of the CTA to reject his proposal to negotiate an agreed termination of his employment contract.
Judgment keywords
Keywords:
competence of tribunal; complaint dismissed; internal remedies exhausted; receivability of the complaint;
Consideration 12
Extract:
[T]he complainant [...] contends [...] that the new administrative tribunal established at the CTA does not, for various reasons, provide the requisite guarantees of independence and impartiality. However, not only is the Tribunal, which is not competent to comment on the qualities and merits of another international tribunal, obviously not able to give credit to such criticisms, but the pleas invoked would not in any case be of such a nature as to allow it to disregard the aforementioned statutory provisions requiring recourse to the conciliation procedure before filing a complaint with the Tribunal. It should further be noted that this plea wrongly disregards the very purpose of this procedure, which is to enable the complainant to resolve the dispute with the CTA by an agreement. Lastly, the fact, also pointed out by the complainant, that the CTA’s new administrative tribunal was not established at the time the present complaint was filed has no bearing on its receivability.
Keywords:
internal appeal; internal remedies exhausted; receivability of the complaint;
Judgment 4140
128th Session, 2019
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to summarily dismiss her for serious misconduct during her probation period.
Judgment keywords
Keywords:
complaint dismissed; internal remedies exhausted; receivability of the complaint;
Consideration 9
Extract:
As the Tribunal has often recalled, a staff member may not on her or his own initiative evade the obligation to exhaust internal means of redress prior to lodging a complaint with the Tribunal (see, for example, Judgments 2811, considerations 10 and 11, 3399, consideration 4, 3706, consideration 3, or 4056, consideration 5). A complainant cannot, in particular, claim to have respected this obligation simply because she or he has – as the complainant sought to do, in this case, by means of her letter of 3 December 2016 – sent an ultimatum to the decision-making authority to no avail (see Judgments 3302, consideration 4, or 3554, consideration 8).
Reference(s)
ILOAT Judgment(s): 2811, 3302, 3399, 3554, 3706, 4056
Keywords:
internal appeal; internal remedies exhausted; receivability of the complaint;
Judgment 4125
127th Session, 2019
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant alleges that UNESCO disclosed confidential information concerning him to the press without his authorization.
Consideration 4
Extract:
The complainant appears to believe that, because as a former official he does not have access to the internal appeal mechanism, he is entitled to come directly before the Tribunal in order to assert a claim against his former employer without having first sought a decision on the matter from UNESCO. The complainant is mistaken. The provisions of Article VII of the Statute of the Tribunal make it clear that a complaint must be directed against a decision of the defendant organisation, whether express or implied. This requirement applies equally to serving and former officials, notwithstanding that the latter may be excluded by the staff regulations from pursuing internal appeals, as is the case in UNESCO. Indeed, it is obvious that the organisation must be given an opportunity to address the claims and allegations of a former official before being compelled to participate in judicial proceedings.
Keywords:
direct appeal to tribunal; former official; impugned decision; internal remedies exhausted;
Judgment 4124
127th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant filed an application for review of Judgment 3998.
Judgment keywords
Keywords:
application for review; complaint dismissed; internal remedies exhausted; summary procedure;
Judgment 4121
127th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the alleged failure to implement a decision to grant him three years’ seniority.
Consideration 3
Extract:
The decision to promote the complainant was made in 2006. It was at that point in time that time-limits to challenge that decision began to run. The Tribunal’s case law concerning payslips does not entitle a complainant to belatedly challenge a decision out of time if the payslip is simply confirmatory of that decision (see, for example, Judgment 2823, consideration 10). This is what the complainant seeks to do in these proceedings. The complainant has not exhausted internal means of redress in conformity with the Service Regulations for permanent employees of the European Patent Office. Accordingly his complaint to this Tribunal is irreceivable and should be dismissed.
Reference(s)
ILOAT Judgment(s): 2823
Keywords:
confirmatory decision; individual decision; internal remedies exhausted; late appeal; new time limit; payslip; receivability of the complaint; right of appeal;
Judgment 4117
127th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the finding that his invalidity was not caused by an occupational disease.
Consideration 5
Extract:
Before proceeding to consider the merits of the complaint, one further preliminary issue concerning receivability should be mentioned. There is one judgment of the Tribunal, Judgment 2787, which, in consideration 3, draws a distinction between procedural and medical aspects of a Medical Committee’s opinion and affirms that, by implication and because of Articles 107(1) and (2) and 109(3) of the Service Regulations as applicable at the material time, the latter (the medical aspects) could be challenged before the Tribunal without the prior filing of an internal appeal to the Appeals Committee. Even if the distinction created by this judgment should continue to be applied by the Tribunal (which may be doubted), there is no bright line between an opinion of a Medical Committee on procedural aspects and an opinion on medical aspects. The present case illustrates that an opinion of the Medical Committee may have both procedural and medical characteristics. In the present case, the Tribunal is satisfied that the decisions of 7 January and 13 February 2013 were decisions “taken after consultation of the Medical Committee” for the purposes of Articles 109(3)(a) and 110(2)(a) of the Service Regulations. Accordingly, the complainant was entitled to bring his complaint directly to the Tribunal [...].
Reference(s)
ILOAT Judgment(s): 2787
Keywords:
internal remedies exhausted; medical board; medical grounds; medical opinion;
Judgment 4114
127th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to downgrade him for serious misconduct.
Consideration 3
Extract:
The fifth complaint is irreceivable because the complainant had not, at the time of its filing, exhausted internal means of redress. The complainant argues that he had, because Article 110(2)(c) of the Service Regulations says, in relation to certain specified decisions, they are excluded from the internal appeal procedure, including “decisions taken after consultation of the Disciplinary Committee”. However the Tribunal has held in Judgment 3888, consideration 9, that Article 110 of the Service Regulations does not absolve a complainant from the need to seek a review to satisfy the Tribunal’s jurisdictional threshold that a complainant must have exhausted internal means of redress. The complaint must be dismissed as irreceivable.
Reference(s)
ILOAT Judgment(s): 3888
Keywords:
internal remedies exhausted; receivability of the complaint;
Judgment 4112
127th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests retroactively his promotions.
Consideration 6
Extract:
The EPO was correct in dismissing the internal appeal as time-barred. In the result, internal means of redress have not been exhausted and the complaint is irreceivable. For this reason, the complaint should be dismissed.
Keywords:
internal remedies exhausted; late appeal; receivability of the complaint;
Judgment 4103
127th Session, 2019
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to grant him mission status during the first six months of his assignment to a field post.
Consideration 1
Extract:
[A] complaint will not be receivable unless the impugned decision is a final decision and the complainant has exhausted all the internal means of redress. This means that a complaint will not be receivable if the underlying internal appeal was not filed within the applicable time limits. As the Tribunal has consistently stated, the strict adherence to time limits is essential to have finality and certainty in relation to the legal effect of decisions. When an applicable time limit to challenge a decision has passed, the organisation is entitled to proceed on the basis that the decision is fully and legally effective (see Judgment 3758, under 10 and 11, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 3758
Keywords:
failure to exhaust internal remedies; internal appeal; internal remedies exhausted; late appeal; receivability of the complaint; time limit;
Judgment 4101
127th Session, 2019
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who alleges that he was subjected to moral harassment, challenges the refusal to extend his special leave without pay and to grant him certain accommodations with regard to his working arrangements.
Consideration 3
Extract:
The Tribunal has consistently held that a complainant must not only have exhausted all internal remedies within his organization but also have duly complied with the rules governing the internal appeal procedure. Thus, if the internal appeal was irreceivable under those rules, the complaint filed with the Tribunal will also be irreceivable under Article VII, paragraph 1, of the Statute of the Tribunal (see Judgment 1244, consideration 1).
Reference(s)
ILOAT Judgment(s): 1244
Keywords:
failure to exhaust internal remedies; internal appeal; internal remedies exhausted; late appeal; receivability of the complaint; time bar;
Consideration 3
Extract:
As the Tribunal has observed on various occasions, time limits are an objective matter of fact and strict adherence to them is necessary for the efficacy of the whole system of administrative and judicial review of decisions. To allow otherwise would impair the necessary stability of the parties’ legal relations (see Judgments 3704, considerations 2 and 3, and 3923, consideration 4).
Reference(s)
ILOAT Judgment(s): 3704, 3923
Keywords:
internal remedies exhausted; late appeal; time bar;
Judgment 4034
126th Session, 2018
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant claims that she was subjected to harassment.
Consideration 4
Extract:
The Tribunal has already ruled that under Staff Regulation 11.1, Staff Rule 111.1 and the Statutes of the Appeals Board, a former staff member cannot use the internal means of redress to challenge a decision taken after she or he has left the Organization (see Judgment 3505, under 4).
Reference(s)
ILOAT Judgment(s): 3505
Keywords:
former official; internal remedies exhausted;
Judgment 4020
126th Session, 2018
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the denial of his second request to benefit from the temporary early termination of service scheme and the implied decision to reject his claim for compensation.
Consideration 4
Extract:
In accordance with Article VII, paragraph 1, of the Statute of the Tribunal, “[a] complaint shall not be receivable unless the decision impugned is a final decision and the person concerned has exhausted such other means of redress as are open to her or him under the applicable Staff Regulations”.
[I]t is well settled that this rule, that internal means of redress must first be exhausted, does not apply to a claim for moral damages, which constitute a natural form of relief which the Tribunal has the power to grant in all circumstances (see, for example, Judgments 3080, under 25, 2779, under 7, and 2609, under 10). The claim for compensation under this head is therefore receivable.
The same applies to the claim for costs related to the proceedings before the Tribunal (see Judgment 3945, under 5).
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 2609, 2779, 2779, 3080, 3945
Keywords:
internal remedies exhausted; moral injury;
Judgment 4003
126th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks compensation for damages related to her arrest and detention in Libya while on an official mission.
Consideration 13
Extract:
With regard to the ICC’s objections to receivability, the Tribunal finds that the claim regarding retaliation is receivable. The complainant had raised the question in her request for review and in her internal appeal, and it was considered by the Appeals Board in its report. Thus, the complainant has exhausted all internal means of redress.
Keywords:
internal remedies exhausted;
Judgment 3981
125th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the Administrative Council’s decision to forward to the President of the Office his request for review of two decisions of the Council concerning the new career system.
Judgment keywords
Keywords:
complaint dismissed; internal remedies exhausted; summary procedure;
Judgment 3980
125th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant considers that his request for review of a decision of the Administrative Council has been implicitly rejected.
Judgment keywords
Keywords:
complaint dismissed; internal remedies exhausted; summary procedure;
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