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 3190
114th Session, 2013
South Centre
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who challenges the non-renewal of her fixed-term contract, failed to exhaust the internal means of redress.
Consideration 9
Extract:
"[The complainant's] assertion that she did not file an appeal before the Centre’s ad hoc Appellate Body because it could not be considered to be independent and impartial must be rejected. 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 Judgment 2811, under 10 and 11, and the case law cited therein). The complaint is therefore irreceivable."
Keywords:
direct appeal to tribunal; internal appeal; internal appeals body; internal remedies exhausted; receivability of the complaint;
Judgment 3141
113th Session, 2012
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 21
Extract:
However, such anomalies cannot prevent a decision from being challenged, because international organisations would otherwise be able to avoid any appeal against a decision by not adopting it in writing, or by not notifying it in the prescribed manner, which would have harmful effects. Furthermore, the case law of the Tribunal has it that an administrative decision may take any form and that, even if it is not put in writing, its existence may be inferred from a factual context demonstrating that it was indeed taken by an officer of the organisation (see, in particular, Judgments 2573, under 8, or 2629, under 6). It is well established that any act by an officer of an organisation which has a legal effect constitutes a challengeable decision (see, for example, Judgments 532, under 3, and 1674, under 6(a), or the aforementioned Judgment 2573, under 10).
Reference(s)
ILOAT Judgment(s): 532, 1674, 2573, 2573
Keywords:
administrative decision; internal remedies exhausted;
Judgment 3119
113th Session, 2012
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"Where the staff regulations of an international organisation do not enable former staff members to avail themselves of the internal means of redress, the organisation cannot legally decide to terminate an appointment without giving the person concerned sufficient time to lodge an internal appeal, otherwise he would be deprived of his right to such an appeal."
Keywords:
condition; internal appeal; internal remedies exhausted; organisation's duties; reasonable time; right of appeal; staff regulations and rules; status of complainant; termination of employment;
Judgment 3080
112th Session, 2012
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 25
Extract:
"[T]he rule laid down in Article VII, paragraph 1, of the Statute of the Tribunal that internal means of redress must first be exhausted does not apply to a claim for compensation for moral injury, which constitutes a claim for consequential relief which the Tribunal has the power to grant in all circumstances (see Judgment 2609, under 10, or Judgment 2779, under 7)."
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 2609, 2779
Keywords:
iloat statute; internal remedies exhausted; moral injury; receivability of the complaint; request by a party;
Judgment 3053
112th Session, 2012
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"Where the only body competent to hear an appeal declines jurisdiction, a decision to that effect is a final decision that may properly be the subject of a complaint to the Tribunal."
Keywords:
final decision; internal appeal; internal appeals body; internal remedies exhausted;
Judgment 3034
111th Session, 2011
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
[A]ttention must be drawn to the fact that the rules concerning the receivability of complaints before the Tribunal are established exclusively by its own Statute. In particular, the possibility of lodging a complaint against an implied rejection is governed solely by the provisions of Article VII, paragraph 3, of the Statute, which states that an official may file a complaint “[w]here the Administration fails to take a decision upon any claim of an official within sixty days from the notification of the claim to it”. When an organisation forwards a claim before the expiry of the prescribed period of sixty days to the competent advisory appeal body, this step itself constitutes “a decision upon [the] claim” within the meaning of these provisions, which forestalls an implied rejection which could be referred to the Tribunal (see, on these points, Judgments 532, 762, 786 or 2681). As it is not disputed that, in the instant case, the Agency had forwarded the complainants’ internal complaints to the Joint Committee for Disputes within this prescribed period of time, the persons concerned were wrong in believing that they could challenge the implied rejection of these complaints.
Reference(s)
ILOAT Judgment(s): 532, 762, 786, 2681
Keywords:
direct appeal to tribunal; iloat statute; internal remedies exhausted; receivability of the complaint;
Judgment 3002
111th Session, 2011
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 13 to 15
Extract:
"As the Tribunal has repeatedly stated, it should not entertain a complaint filed out of time [...]. 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 his or her complaint receivable (see, for example, Judgments 602, under 3, 1466, under 5 and 6, or 2821, under 8).
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 unforeseeable fact of decisive importance has occurred since the decision was taken, or else when the employee is relying on facts or evidence of decisive importance of which he/she was not and could not have been aware before the decision was taken (see Judgments 676, under 1, 2203, under 7, or 2722, under 4). 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.
In particular, in the instant case, the complainant's argument that the delivery of Judgment 2359 constitutes a new and unforeseeable fact of decisive importance, within the meaning of the above-cited case law, is to no avail. In Judgment 676 the Tribunal did accept that the delivery of one of its judgments could be described in these terms and could therefore have the effect of reopening the time limit within which a complainant could lodge an appeal. But the circumstances of the case were very special in that the Tribunal, in previous judgments which it cited in that case, had formulated a rule which had greatly altered the position of certain staff members of an organisation and which, although already applied by the organisation, had until then not been published or communicated to the staff members concerned. No exceptional circumstances of this nature exist in the instant case [...]."
Reference(s)
ILOAT Judgment(s): 602, 676, 1466, 2203, 2359, 2722, 2821
Keywords:
internal remedies exhausted; judgment of the tribunal; late appeal; new time limit; receivability of the complaint; suspension of the execution of a judgment; time bar; time limit;
Judgment 2996
110th Session, 2011
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"While procedural rules and time limits usually apply to the officials of international organisations without it being necessary to recapitulate them when a decision is notified, this is not the case where a rule expressly establishes an obligation to provide this information when notifying a decision [...] and where this formality has not been respected. [...] [T]he principle of good faith requires that an official's complaint will not be deemed irreceivable owing to his or her failure to lodge an internal appeal, if the organisation itself has not abided by the requisite formalities enabling the official to submit an appeal."
Keywords:
duty to be informed; duty to know the rules; good faith; ignorance of the rules; internal remedies exhausted; patere legem; receivability of the complaint; written rule;
Judgment 2991
110th Session, 2011
Centre for the Development of Enterprise
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"[A]n assessment report can constitute a decision adversely affecting the person concerned and, as such, it may be contested by means of an internal complaint lodged within the time limits established by an organisation's rules and regulations. It may even be impugned in proceedings before the Tribunal after internal means of redress have been exhausted."
Keywords:
cause of action; internal appeal; internal remedies exhausted; performance report;
Judgment 2956
110th Session, 2011
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
The Secretary of the Board of Appeal informed the complainant that the statement of intention to appeal he had sent to the Board was irreceivable but "this official plainly had no authority to take a decision in place of the Board itself".
Keywords:
abuse of power; internal appeal; internal appeals body; internal remedies exhausted; misuse of authority;
Judgment 2939
109th Session, 2010
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"Article VII, paragraph 1, of the Statute of the Tribunal provides that a complaint is not receivable unless the internal means of redress have been exhausted. Although the Statute does not expressly allow for any exception to this requirement, the Tribunal's case law is clear that 'where the pursuit of the internal remedies is unreasonably delayed the requirement of Article VII, paragraph 1, will have been met if, though doing everything that can be expected to get the matter concluded, the complainant can show that the internal appeal proceedings are unlikely to end within a reasonable time' [...]."
Reference(s)
ILOAT reference: Article II, paragraph 1, of the Statute
ILOAT Judgment(s): 1829, 2039
Keywords:
direct appeal to tribunal; iloat statute; internal remedies exhausted; reasonable time; receivability of the complaint;
Consideration 11
Extract:
"[T]he complainants ought to have established that their internal appeal had, in fact, been unduly delayed. Instead of so doing, however, the complainants unilaterally ascertained what in their view would constitute unreasonable delay at the time they filed their appeal. [T]hey did not communicate with the Internal Appeals Committee for the purpose of having the appeal expedited and neither did they make any enquiries to ascertain when the Office's first response would be filed."
Keywords:
delay; internal appeal; internal remedies exhausted; receivability of the complaint;
Judgment 2912
109th Session, 2010
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"According to Article VII, paragraph 1, of the [Tribunal's]Statute, '[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 exceptions allowed under the Tribunal's case law to this requirement that internal means of redress must have been exhausted are cases where staff regulations provide that decisions taken by the executive head of an organisation are not subject to the internal appeal procedure, where there is an inordinate and inexcusable delay in 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 or, lastly, where the parties have mutually agreed to forgo this requirement that internal means of redress must have been exhausted (see, for example, Judgments 1491, 2232, 2443, 2511 and the case law cited therein, and 2582)."
Reference(s)
ILOAT Judgment(s): 1491, 2232, 2443, 2511, 2582
Keywords:
absence of final decision; delay; direct appeal to tribunal; iloat statute; internal appeal; internal remedies exhausted; receivability of the complaint;
Judgment 2907
108th Session, 2010
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
"[A]ccording to the Tribunal's case law as established in Judgments 752, under 4, and 2821, under 9, for example, exceptions may be made to the applicable time limits when an organisation, by misleading the complainant or concealing some paper from him or her, has deprived that person of the possibility of exercising his or her right of appeal, in breach of the principle of good faith."
Reference(s)
ILOAT Judgment(s): 752, 2821
Keywords:
good faith; internal appeal; internal remedies exhausted; late appeal; receivability of the complaint; time limit;
Judgment 2904
108th Session, 2010
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 14 and 15
Extract:
The complainant claims compensation for the overall delay involved in this matter.
"As for the internal appeal process, the Tribunal recalls that the Organization has a duty to maintain a fully functional internal appeals body. Thus, the Committee's statement that 'the alleged delays could not be ascribed to it as they were due to the need for arranging election of new members to the Appeals Committee and the time requirements for this' does not relieve the Organization from responsibility for the delay in the process. According to well-established case law, '[s]ince compliance with internal appeals procedures is a condition precedent to access to the Tribunal, an organisation has a positive obligation to see to it that such procedures move forward with reasonable speed' (see Judgment 2197, under 33). The first appeal lasted for approximately 16 months, even though it hinged on the simple question of receivability. The entire process to date has stretched over eight years. In the circumstances, the complainant is entitled to be compensated in the amount of 4,000 euros for this delay."
Reference(s)
ILOAT Judgment(s): 2197
Keywords:
administrative delay; delay; internal appeal; internal appeals body; internal remedies exhausted; moral injury; organisation's duties; reasonable time;
Judgment 2892
108th Session, 2010
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 29
Extract:
"[T]he claim [...] that the performance appraisal made by the Secretary-General "be quashed and removed from his personal file" is receivable. It is not clear whether any performance appraisal report has been placed in the complainant's file. But it is clear that the relevant performance appraisal procedures were never completed. In these circumstances, it will be ordered that any performance appraisal report for the year 2006 that has been placed in his file be removed from it."
Keywords:
direct appeal to tribunal; internal remedies exhausted; status of complainant;
Considerations 6-8
Extract:
"The ITU argues that the [...] complaint with respect to the complainant's dismissal is [...] irreceivable on the basis that, as he has not pursued his internal appeal following his request [...] for a final review of the decision to dismiss him [...]. [T]he question remains whether the Staff Regulations and Staff Rules permit an internal appeal once a person has ceased to be a staff member. If they do not, the steps taken by the complainant to initiate an internal appeal were ineffective. More to the point, there were no internal remedies that he could pursue before lodging his complaint."
"Chapter XI of the ITU Staff Regulations and Staff Rules makes provision for appeals by staff members. [...] There is nothing in Chapter XI of the Staff Regulations and Staff Rules to indicate that a former staff member may lodge an appeal as therein provided. [...] In these circumstances, the term "staff member" in Chapter XI is to be construed as restricted to a serving staff member."
"In Judgment 2840, also a case where the relevant regulations and rules relating to internal appeals referred only to a "staff member" and not a "former staff member", it was held that "where a decision has not been communicated until after a staff member has separated from service, the former staff member does not have recourse to the internal appeal process". The same is true of a staff member who has either been summarily dismissed or dismissed with such short notice that it is impracticable to commence internal appeal proceedings before the dismissal takes effect."
Reference(s)
ILOAT Judgment(s): 2582, 2840
Keywords:
definition; direct appeal to tribunal; internal remedies exhausted; official; receivability of the complaint; staff regulations and rules; status of complainant; vexatious complaint;
Judgment 2866
108th Session, 2010
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 4 and 5
Extract:
The complainant challenged the Organisation's decision not to grant her the expatriation allowance provided for in Article 72 (1) of the Service Regulations. The Tribunal held that she had failed to adduce cogent evidence that she fulfilled the requirements for the granting of the said allowance.
"The EPO argues that although it was outside the time contemplated in Article 109(2) of the Service Regulations, a decision on the complainant's appeal was taken by the President and the appeal was forwarded to the Internal Appeals Committee prior to the complaint being filed. Accordingly, there was no longer an implicit rejection of the complainant's appeal and Article VII, paragraph 3, of the Tribunal's Statute does not apply. In its view, as the Tribunal held in Judgment 533, under 5, the complaint is irreceivable on the grounds that the internal means of redress have not been exhausted."
"The EPO's reliance on Judgment 533 is misplaced. In the present case, by the EPO's own admission the decision was not taken within the time provided in Article 109(2) of the Service Regulations. As the Tribunal stated in Judgment 2562, under 6:
"The EPO cannot be heard to argue that the complainant has failed to exhaust internal means of redress when the sole reason for his failing to do so was the EPO's own failure to abide by its own Service Regulations and to follow the timelines under Article 109(2). [...]"
Accordingly, the complaint is receivable."
Reference(s)
ILOAT reference: Article VII, paragraph 3, of the Statute
Organization rules reference: Article 109(2) of the Service Regulations
ILOAT Judgment(s): 533, 2562
Keywords:
administrative delay; direct appeal to tribunal; implied decision; internal appeal; internal appeals body; internal remedies exhausted; reasonable time; receivability of the complaint; time bar; time limit;
Judgment 2853
107th Session, 2009
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 6-8
Extract:
The difference as to the complainant's performance rating was not resolved in internal grievance proceedings and the complainant filed an internal appeal. Having received no response, the complainant sent an e-mail to the Registry of the Tribunal, stating that he wished to file a complaint.
"It is fundamental that a litigant cannot pursue the same claim before different adjudicative bodies at the same time. Normally, the litigant will be forced to elect the forum in which he or she intends to proceed. That did not happen in the present case. Nonetheless, the complainant pursued his internal appeal to finality and, thus, must be taken to have elected to pursue internal remedies rather than to proceed at that stage before the Tribunal on the basis of an implied rejection of his internal appeal. However, that does not mean that the complaint is irreceivable."
"[When] the complainant [decided] to pursue internal remedies [...], [his] complaint had already been filed and it was receivable pursuant to Article VII, paragraph 3, of the Statute. Moreover, he then had a cause of action, as his claim was not satisfied until 13 December 2007."
"Even though the complaint became without object on 13 December 2007, it was receivable when filed and the complainant then had a cause of action. Accordingly, he is entitled, in these circumstances, to the costs associated with its filing, even though not requested in the complaint. However, he is not entitled to costs in respect of subsequent pleadings which were filed after his decision to pursue his internal appeal. There will be an award of costs in the amount of 500 Swiss francs, but the complaint must otherwise be dismissed."
Keywords:
absence of final decision; costs; direct appeal to tribunal; duplication of proceedings; implied decision; internal appeal; internal remedies exhausted; receivability of the complaint;
Judgment 2825
107th Session, 2009
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"Because the letter [...] must be construed as meaning that a final decision would only be taken on the complainant's internal appeal after receipt of the opinion of the Internal Appeals Committee, it did not convey a final decision. As Article VII, paragraph 1, of the Tribunal's Statute allows only for complaints with respect to final decisions, the complaint is irreceivable. The matter must proceed before the Internal Appeals Committee."
Reference(s)
ILOAT reference: Article VII of the Statute
Keywords:
complaint; decision; internal appeal; internal appeals body; internal remedies exhausted; receivability of the complaint;
Judgment 2811
106th Session, 2009
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 10-11
Extract:
"In an attempt to show that her complaint is receivable the complainant submits that, in this case, an appeal to the Board of Appeal or Grievance Panel would not have served any practical purpose [...].
The Tribunal will not accept this line of argument, since to do so would be tantamount to allowing a staff member, on his or her own initiative, to evade the requirement that internal means of redress must be exhausted before a complaint is filed.
Apart from the fact that this solution would conflict directly with the terms of Article VII, paragraph 1, of the Statute of the Tribunal, it would belie the actual point of making internal appeals obligatory, which is what justifies this provision. However, as the Tribunal has already emphasised, [...] the purpose of the requirement that internal means of redress be exhausted is not only to ensure that staff members do actually avail themselves of any opportunities they may have within an organisation for obtaining redress before filing a complaint with the Tribunal, but also to enable the Tribunal, in the event that a staff member lodges a complaint, to have at its disposal a file supplemented by information from the records of the internal appeal procedure."
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 1141
Keywords:
complaint; direct appeal to tribunal; internal appeal; internal appeals body; internal remedies exhausted; receivability of the complaint;
Consideration 13
Extract:
The WHO argues that the complaint is irreceivable because the complainant failed to exhaust internal means of redress. The complainant submits that, in this case, an appeal would not have served any practical purpose. Relying on various Tribunal judgments where complainants were deemed to have exhausted internal means of redress when it transpired that the latter would be inconclusive, she contends that she was likewise in a situation where she was entitled to turn directly to the Tribunal.
"The complainant is mistaken in believing that she may be deemed in this case to have exhausted internal means of redress. The precedents to which she refers [...] refer to cases where, owing to the excessive length of the internal appeal proceedings, or the organisation's wrongful attempts to impede the examination of such an appeal, the requirement that internal means of redress must be exhausted would have paralysed the complainant's exercise of his or her right to have access to the Tribunal. However, as a general rule, and according to the same line of precedent, this departure from the application of Article VII, paragraph 1, of the Statute of the Tribunal will be accepted only where complainants have done all that could reasonably be expected of them to have their internal appeal effectively examined, so that they cannot be said to be in any way responsible for a failure to exhaust the internal means of redress available within an organisation. But, this is not the case here where, on the contrary, the complainant quite simply refrained from filing such an appeal and therefore took it upon herself not to comply with this precondition for filing a complaint with the Tribunal."
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 1376, 1829, 1968, 2039
Keywords:
complaint; delay; direct appeal to tribunal; internal appeal; internal remedies exhausted; reasonable time; receivability of the complaint;
Consideration 11
Extract:
The WHO argues that the complaint is irreceivable because the complainant failed to challenge the Director-General's decision before the Headquarters Board of Appeal. The complainant submits that, in this case, an appeal would not have served any practical purpose. She contends that, bearing in mind the purely advisory nature of this body, the Director-General could have confirmed her initial decision, no matter what recommendation was made to her.
"The fact that the recommendations of the Board of Appeal are not binding on the decision-making authority does not mean that they have no weight in the internal appeals procedure, since the Director-General has a legal duty to give such recommendations due consideration and, according to the Tribunal's case law, can lawfully depart from them only for clear and cogent reasons."
Keywords:
complaint; duty to substantiate decision; executive body; internal appeal; internal appeals body; internal remedies exhausted; receivability of the complaint;
Consideration 12
Extract:
WHO argues that the complaint is irreceivable because the complainant failed to exhaust internal means of redress. The complainant submits that, in this case, an appeal would not have served any practical purpose. She contends that her internal appeal could not be examined with due objectiveness and impartiality and she indicates that the Tribunal found in Judgment 2642 that the WHO Headquarters Grievance Panel had displayed serious shortcomings.
"Although the complainant indicates that the Tribunal found in Judgment 2642, delivered on 11 July 2007, that the WHO Headquarters Grievance Panel had displayed serious shortcomings, this judgment should not be construed as general criticism of the way such panels operate."
Keywords:
case law; complaint; internal appeal; internal appeals body; internal remedies exhausted; receivability of the complaint;
Judgment 2796
106th Session, 2009
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
The complainant asks that the defendant provide him with a positive work reference and that information concerning the issues raised in his complaint be given to some delegates.
"None of these matters was the subject of his internal appeals. Accordingly, those claims are irreceivable (see Judgments 899, 1263, 1443 and 2213). Further and save in exceptional cases where an international organisation has a continuing duty to undo damage caused by its own communications to a third party, as in Judgment 2720, the Tribunal is not competent to issue orders of the kind sought (see Judgments 126, 1591 and 2058)."
Reference(s)
ILOAT Judgment(s): 126, 899, 1263, 1443, 1591, 2058, 2213, 2720
Keywords:
claim; communication to third party; compensation; competence of tribunal; exception; injury; internal appeal; internal remedies exhausted; new claim; organisation's duties; receivability of the complaint;
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