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 3464
119th Session, 2015
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The Tribunal summarily dismissed the complaint as the complainant cannot validly impugn a decision which was not a final decision.
Judgment keywords
Keywords:
complaint dismissed; internal remedies exhausted; summary procedure;
Judgment 3458
119th Session, 2015
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaints, clearly irreceivable, are summarily dismissed.
Judgment keywords
Keywords:
complaint dismissed; direct appeal to tribunal; internal remedies exhausted; summary procedure;
Consideration 7
Extract:
It is firm case law that a staff member is not allowed on his or her own initiative to evade the requirement that internal means of redress must be exhausted before a complaint is filed before the Tribunal (see Judgments 3190, under 9, and 2811, under 10 and 11, and the case law cited therein). According to Article VII, paragraph 1, of the Statute of the Tribunal, a complaint shall not be receivable unless a final decision is impugned, the person concerned having exhausted such other means of resisting as are open to her or him under the applicable staff regulations (see, for example, Judgment 163).
Reference(s)
ILOAT Judgment(s): 163, 2811, 3190
Keywords:
direct appeal to tribunal; internal remedies exhausted;
Judgment 3442
119th Session, 2015
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The Tribunal found that the decision to dismiss internal appeals concerning a claim for compensation for service-incurred disability was flawed.
Consideration 6
Extract:
In Judgment 2039, under 4, the Tribunal held as follows:
“Precedent says that the requirement to exhaust the internal remedies cannot have the effect of paralysing the exercise of the complainants’ rights. Complainants may therefore go straight to the Tribunal where the competent bodies are not able to decide on an issue within a reasonable time, depending on the circumstances (see Judgments 1829 […], 1968 […] and the numerous judgments cited therein).
However, a complainant can make use of this possibility only where he has done his utmost, to no avail, to accelerate the internal procedure and where the circumstances show that the appeal body was not able to reach a decision within a reasonable time (see, for example, Judgments 1674, […] under 6(b), and 1970 […]). In general, a request for information on the status of the proceedings or the date on which a decision may be expected is enough to demonstrate that the appellant wants the procedure to follow its normal course, and gives grounds for alleging unjustified delay if the authority has not acted with the necessary diligence. However, there are circumstances in which it is unclear whether the procedure has been abandoned or whether the staff member has implicitly consented to the suspension of his appeal in law or in fact. In such cases, the case law says that the staff member must indicate clearly if he wants the procedure to continue. […]”
Reference(s)
ILOAT Judgment(s): 1829
Keywords:
exception; internal remedies exhausted;
Judgment 3435
119th Session, 2015
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The Tribunal found that the complaints were irreceivable for failure to exhaust internal means of redress.
Consideration 5
Extract:
"The complainants assert that they did their utmost, to no avail, to accelerate the internal appeals procedure and that, according to the Tribunal’s case law, they were allowed to file directly with the Tribunal as the requirement to exhaust all internal remedies cannot have the effect of paralyzing the exercise of their rights. The Tribunal is of the opinion that even though the submission of the Organisation’s position paper was already delayed by the time the complainants
wrote to the IAC Chairman in December 2009, and the additional six months for the expected date of submission could be considered excessive depending on the circumstances, the complainants were involved in a dialogue with the Organisation which they abruptly ended by applying directly to the Tribunal upon receiving notice of the Organisation’s intent to submit its position paper in mid-2010. Having received confirmation of the Organisation’s intent to continue the internal appeal, the complainants should have either waited for the Organisation’s position paper of June to continue the internal appeal process, or should have requested a more immediate submission date. The Tribunal notes that, though the appeal process was delayed, it was active, and the complainants could have a reasonable expectation of receiving a final decision which they could then contest before the Tribunal if they found it necessary. Therefore, the Tribunal cannot consider that the complainants had truly done their utmost to pursue their internal appeal and the complaints are considered premature and must be dismissed as irreceivable for failure to exhaust all means of internal redress. As they are irreceivable under Article VII, paragraph 1, of its Statute, the Tribunal shall examine neither other issues of receivability, nor the merits of the complaints."
Keywords:
direct appeal to tribunal; internal appeal; internal remedies exhausted; receivability of the complaint;
Consideration 4
Extract:
"The Tribunal is of the opinion that this case hinges on the question of receivability. Complainants shall have access to the Tribunal in accordance with Article VII, paragraph 1, of the Statute of the Tribunal which provides that a “complaint shall not be receivable unless the decision impugned is a final decision and the person concerned has exhausted such other means of resisting it as are open to him under the applicable Staff Regulations”. However, the Tribunal notes that it is important for the parties to attempt to find an internal solution to disputes, particularly as internal appeals bodies are competent to comment not only on the lawfulness of administrative decisions, but also to suggest alternative solutions. This alone can sometimes be enough to resolve a dispute, and in cases which are further pursued, the Tribunal should have at its disposal full records on the administrative handling of the dispute. In the present case, the complainants filed their complaints in March 2010 directly before the Tribunal, upon receiving notice that the Organisation’s position paper on their internal appeal would not be filed until mid-2010. The position paper was filed as indicated."
Keywords:
direct appeal to tribunal; internal remedies exhausted;
Judgment 3428
119th Session, 2015
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants unsuccessfully challenge decisions that were not followed by individual implementing decisions.
Consideration 19
Extract:
The complainants’ reliance on the case law established in Judgments 408, 1684, 2132 and 2443, according to which an exception to the rule that internal means of redress must be exhausted can be made if an appeal is not dealt with by the competent bodies within a reasonable period of time, is misplaced. In this connection, the complainants refer to the “incredible delays” with which the Internal Appeals Committee of the EPO usually considers the cases submitted to it, but it must be found that this criticism is irrelevant in the instant cases where the complainants waited for scarcely one or two months following the referral to the Committee before bringing the case directly to the Tribunal. Clearly the fact that their appeals were not examined during this brief interlude could not in any way be described as a breach of the Organisation’s duty to deal with them within a reasonable period of time.
Reference(s)
ILOAT Judgment(s): 408, 1684, 2132, 2443
Keywords:
direct appeal to tribunal; internal remedies exhausted; reasonable time;
Judgment 3427
119th Session, 2015
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants unsuccessfully challenge a series of decisions concerning pension issues, those being decisions of general application.
Consideration 16
Extract:
[I]t is observed that the Tribunal has, in certain circumstances, “deemed” that the internal means of resisting a decision have been exhausted. However, as the exhaustion of the internal means of resisting a decision is a statutorily mandated requirement of receivability, it is beyond the Tribunal’s competence to waive it.
Keywords:
competence of tribunal; internal remedies exhausted; receivability of the complaint;
Consideration 14
Extract:
The claims for relief in a complaint are the remedies sought in the event the complainant is successful or partially successful in the prosecution of the complaint. Given the evolution of a case over time, some remedies initially sought in the internal appeal might not be pursued in a complaint and other claims for relief may arise, for example, from the final decision itself that could not have been contemplated at the time the internal appeal was filed. For the purpose of the present judgment a consideration of the circumstances under which the Tribunal will consider a claim for relief not advanced in the internal appeal process is unnecessary. Suffice it to say that it is not a matter of receivability in relation to the complaint itself.
Keywords:
claim; internal remedies exhausted;
Judgment 3424
119th Session, 2015
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The Tribunal found that the impugned implied decision was flawed.
Consideration 6(a)
Extract:
"It is true that, contrary to the Fund’s submissions, its former employees do not have access to the internal appeal procedure for which the applicable regulations make provision. Indeed, the regulations in force at the material time, as well as those which replaced them with effect from 1 August 2012, provide that the internal means of redress are open to “employees”, but there is nothing in the texts governing the organisation’s staff which specifies that this term also refers to former employees. The Tribunal has already had occasion to find, with regard to other international organisations’ staff rules and regulations couched in similar language, that in the absence of any indication to the contrary in the applicable texts, this term must be interpreted as referring solely to serving staff members (see, in particular, Judgments 2840, under 17 to 21, 2892, under 6 to 8, or 3074, under 11 to 13). The Fund’s argument that, in practice, the Appeal Board has so far agreed to consider appeals filed by former employees is no bar to the application of that case law."
Reference(s)
ILOAT Judgment(s): 2840, 2892, 3074
Keywords:
exception; former official; internal appeal; internal remedies exhausted; status of complainant;
Judgment 3423
119th Session, 2015
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The Tribunal found that the impugned implied decision was flawed.
Consideration 7(a)
Extract:
"It is true that [the Fund's] former employees do not have access to the internal appeal procedure for which the applicable regulations make provision. Indeed, the regulations in force at the material time [...] provide that the internal means of redress are open to “employees”, but there is nothing in the texts governing the organisation’s staff which specifies that this term also refers to former employees. The Tribunal has already had occasion to find, with regard to other international organisations’ staff rules and regulations couched in similar language, that in the absence of any indication to the contrary in the applicable texts, this term must be interpreted as referring solely to serving staff members (see, in particular, Judgments 2840, under 17 to 21, 2892, under 6 to 8, or 3074, under 11 to 13)."
Reference(s)
ILOAT Judgment(s): 2840, 2892, 3074
Keywords:
exception; internal appeal; internal remedies exhausted; status of complainant;
Judgment 3407
119th Session, 2015
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully challenges the implied decision to reject his claim against the new calculation of his pension rights.
Consideration 19
Extract:
[A] steady line of precedent has it that, although rules of procedure should ordinarily be strictly complied with, they must not set traps for staff members who are trying to defend their rights, and they must not therefore be construed with too much formalism. For this reason, the fact that an application has been submitted to the wrong authority does not make it irreceivable and, in these circumstances, it is up to that authority to forward it to the body within the organisation which is competent to examine it (see, for example, Judgments 1832, under 6, 2882, under 6, or 3027, under 7). Contrary to the defendant’s submissions, the scope of this case law is not limited to mistakes affecting the filing of internal appeals, even though in practice that is the most frequent situation in which it applies.
Reference(s)
ILOAT Judgment(s): 1832, 2882, 3027
Keywords:
internal procedure; internal remedies exhausted;
Judgment 3397
119th Session, 2015
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who had an accident recognized as work-related, unsuccessfully impugns the decision not to grant her appropriate compensation for the physical pain she suffered as a result of the accident.
Consideration 1
Extract:
Under 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 resisting it as are open to him under the applicable Staff Regulations. The only exception allowed to this rule is where staff regulations provide that decisions taken by the executive head of an organisation are not subject to the internal appeal procedure, where for specific reasons connected with the personal status of the complainant he or she does not have access to the internal appeal body, where there is an inordinate and inexcusable delay in the internal appeal procedure, or, lastly, where the parties have mutually agreed to forgo this requirement that internal means of redress must have been exhausted (see, in particular, Judgment 2912, under 6).
The only question which the application of this rule raises in this case is whether the complainant did in fact have access to internal means of redress after her retirement.
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 2912
Keywords:
internal remedies exhausted;
Judgment 3368
118th Session, 2014
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The Tribunal considered that the complainant’s employment under short-term contracts was unlawful and that the Organisation failed to provide reasonable notice of non-renewal.
Consideration 6
Extract:
"The Tribunal [...] rejects the ILO’s contention that the complaint’s claim for the conversion of her short-term contract is receivable only to the extent that it relates to her last contract extension for the period from 1 January to 31 May 2010, but is otherwise time-barred. The ILO relies on Judgments 2708 and 2838 as authority for its submission that, in view of the six-month time limit for filing a grievance under Article 13.2 of the Staff Regulations, the grievance filed on 4 November 2010 is irreceivable as to extensions prior to that of 1 January to 31 May 2010. A similar argument was rejected by the Tribunal in Judgment 3110, under 5. It is sufficient to note that, as earlier indicated, at the material time the complainant was employed under a single contract which was extended several times, and neither the extension of 1 January 2010 nor the decision to apply Rule 3.5 to her gave rise to a new, separate contract. The objection therefore fails."
Reference(s)
ILOAT Judgment(s): 2708, 2838, 3110
Keywords:
internal remedies exhausted; late appeal; receivability of the complaint;
Judgment 3363
118th Session, 2014
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to forward to the President his appeal filed with the Administrative Council.
Judgment keywords
Keywords:
complaint dismissed; internal remedies exhausted;
Judgment 3335
118th Session, 2014
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision dismissing his appeal against the alleged double taxation (both national and internal) of his retirement pension.
Consideration 1(a)
Extract:
"The procedure which the complainant has requested to be put in train is nowhere provided for in the Service Regulations. This first allegation is therefore unfounded."
Keywords:
internal remedies exhausted;
Judgment 3331
118th Session, 2014
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Considering that the Internal Appeals Committee had not examined his appeal within a reasonable time, the complainant filed his complaint directly with the Tribunal.
Judgment keywords
Keywords:
complaint dismissed; internal remedies exhausted;
Consideration 7
Extract:
"[B]efore the complainant brought his case directly to the Tribunal, he had to inform the EPO of his continued interest in his internal appeal, thus putting it on notice that he wanted the process to proceed. The Tribunal will accept a complaint to be brought directly to it where the internal redress process is not exhausted if it appears that a complainant’s rights in the internal appeal process have been paralysed."
Keywords:
direct appeal to tribunal; internal remedies exhausted;
Judgment 3302
116th Session, 2014
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaints were dismissed for non-exhaustion of internal remedies under Article 7 of the Tribunal’s Rules.
Judgment keywords
Reference(s)
ILOAT reference: Article VII, paragraphs 1 and 3, of the Statute
ILOAT Judgment(s): 2780, 2811, 2939
Keywords:
complaint dismissed; decision; delay; duty of care; iloat statute; internal appeal; internal remedies exhausted; organisation's duties; reasonable time; staff member's duties;
Judgment 3301
116th Session, 2014
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant through five irreceivable complaints requested information concerning facts that occurred before his retirement for disability.
Judgment keywords
Reference(s)
ILOAT reference: Article 7, paragraph 2, of the Rules
Organization rules reference: Articles 107, par. 2, and 109, par. 3, of the Service Regulations
Keywords:
complaint dismissed; decision; express decision; implied decision; internal appeal; internal remedies exhausted;
Judgment 3296
116th Session, 2014
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant alleges that he has been harassed and that he was appointed only in 2006 to a post whose functions he had been fulfilling since 2001.
Consideration 10
Extract:
Article VII, paragraph 1, of the Statute of the Tribunal specifies that: “A complaint shall not be receivable unless the decision impugned is a final decision and the person concerned has exhausted such other means of resisting it as are open to him under the applicable Staff Regulations.”
In accordance with the Tribunal’s case law, to satisfy this requirement the complainant must not only follow the prescribed internal procedure for appeal, but must follow it properly and in particular observe any time limit that may be set for the purpose of that procedure (see, for example, Judgment 1469).
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 1469
Keywords:
internal remedies exhausted; receivability of the complaint;
Judgment 3241
115th Session, 2013
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her performance reviews for 2008 and 2009.
Consideration 5
Extract:
"[A]n assessment report can constitute a decision adversely affecting the person concerned and may be impugned in proceedings before the Tribunal after internal means of redress have been exhausted. This is buttressed by the statement of principle in Judgment 466, under 3, that such matters may be so challenged since every official has an interest in the proper establishment of reports on her or his performance, on which her or his career will depend. However, such a decision must be challenged in a timely manner and in accordance with the relevant staff rules and regulations. If not so challenged, the decision becomes final and cannot be reopened (see Judgment 3059, under 7)."
Reference(s)
ILOAT Judgment(s): 466, 3059
Keywords:
cause of action; internal remedies exhausted; performance evaluation; performance report; time limit;
Judgment 3222
115th Session, 2013
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to disclose some documents related to the procedure concerning his claim for compensation for a service-incurred illness.
Consideration 11
Extract:
"While the Tribunal’s case law recognises a need to apply Article VII(1) of its Statute with some flexibility (see, for example, Judgments 2360 and 2457), there are no decisions which support the view that a claim about a discrete subject can be introduced at a late stage in an internal appeal about an entirely different subject and the fact that it has been satisfies the requirement that internal appeals have been exhausted before a complaint about the different subject matter can be litigated in the Tribunal."
Reference(s)
ILOAT reference: Article VII of the Statute
ILOAT Judgment(s): 2360, 2457
Keywords:
internal remedies exhausted; new claim; receivability of the complaint;
Judgment 3209
115th Session, 2013
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant accuses the ITU of having failed in its duty to ensure transparency in a selection process.
Considerations 13 and 14
Extract:
The complainant applied for a post but was not selected. She asks the Tribunal to require disclosure of the file of the selection process.
"[The Organisation] argues that the complainant’s request for the communication of the file is a claim made for the first time in her complaint and must therefore be dismissed as irreceivable. However, as the complainant rightly observes, this is not a new claim which would be subject to the rule on the exhaustion of internal remedies. In this instance, it is merely a request made on the basis of Article 11 of the Rules of the Tribunal, for the Tribunal to use its powers of investigation, which it can in fact do on its own motion.
The defendant also stated that if the Tribunal considered that the information supplied in support of its arguments was insufficient, it would transmit the file of the selection process for the exclusive attention of the Tribunal. [...] The Tribunal recalls that, according to the adversarial principle, all documents submitted to it by a party to the proceedings must be communicated to the other party. It will be for the organisation itself, if it considers this necessary in order to protect the interests of third parties, to conceal identities to the required extent in the documents produced."
Reference(s)
ILOAT reference: Article 11 of the Rules
Keywords:
adversarial proceedings; application of law ex officio; competition; disclosure of evidence; interlocutory order; internal remedies exhausted; new claim; receivability of the complaint;
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