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Judgment 4910
138th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant filed her third complaint on 23 September 2023, that is to say 113 days after she received notification, on 2 June 2023, of the 11 May 2023 decision.
Consideration 5
Extract:
Article VII, paragraph 2, of the Tribunal’s Statute provides that “[t]o be receivable, a complaint must [...] have been filed within ninety days after the complainant was notified of the decision impugned”. As the Tribunal has repeatedly stated, for example in Judgments 2722, 2463, 1466, 1106, and 602, time limits are an objective matter of fact and it should not entertain a complaint filed out of time, because 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. However, as stated in Judgment 3687, in consideration 10:
“The case law also recognizes that in very limited circumstances an exception may be made to the rule of strict adherence to the relevant time limit. The circumstances identified in the case law are: ‘where the complainant has been prevented by vis major from learning of the impugned decision in good time or where the organisation, by misleading the complainant or concealing some paper from him or her so as to do him or her harm, has deprived that person of the possibility of exercising his or her right of appeal, in breach of the principle of good faith’ (see Judgment 3405, under 17; citations omitted); and ‘where some new and unforeseeable fact of decisive importance has occurred since the decision was taken, or where [the staff member concerned by that decision] is relying on facts or evidence of decisive importance of which he or she was not and could not have been aware before the decision was taken’ (see Judgment 3140, under 4; citations omitted).”
The Tribunal considers that in the present case there are no circumstances that would have prevented the complainant from filing her third complaint within the time limit set forth by the Statute of the Tribunal.
Reference(s)
ILOAT Judgment(s): 602, 1106, 1466, 2463, 2722, 3140, 3405
Keywords:
time limit;
Judgment 4900
138th Session, 2024
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges, in his first complaint, the partial rejection of his harassment complaint before investigation and, in his fourth complaint, the rejection of his harassment complaint after investigation.
Considerations 29-30
Extract:
Furthermore, paragraph 27.1 of OC No. 9 states that the receivability of a harassment complaint is to be assessed as from the most recent act of alleged harassment, which must have taken place less than six months previously. In the present case, as confirmed by the Subpanel when it found the complaint partly receivable in respect of some of the conduct of which Mr T.S. was accused, it has been established that one of the acts of harassment of which the complainant accused three of his supervisors in his complaint met that condition.
The Tribunal considers that, in the case of a complaint of institutional harassment such as alleged by the complainant in the present case, while it is true that the most recent act must have occurred within a period of six months preceding the formal harassment complaint, that cannot prevent earlier acts possibly involving other individuals from being taken into account in the initial assessment phase.
In Judgment 4601, consideration 8, the Tribunal recalled that, under its case law, the following should be borne in mind with regard to the cumulative effect of repeated incidents over a given period:
“[...] [F]irst, conduct over a period of time can inform the characterisation of particular conduct as harassment (see, in particular, Judgments 4288, consideration 3, and 4233, consideration 3) and, secondly, an accumulation of repeated events, as well as a long series of examples of mismanagement and omissions, can be such as to have compromised the dignity and career objectives of a staff member (see, in particular, Judgment 4286, consideration 17). Indeed, harassment may involve a series of acts over time and can be the result of the cumulative effect of several manifestations of conduct which, taken in isolation, might not be viewed as harassment (see Judgment 4233, consideration 3, and the case law referred to therein), even if they were not challenged at the time (see Judgment 4253, consideration 5, and the judgments cited therein).”
In his harassment complaint, the complainant referred to the behaviour of three successive supervisors over a period of time, which in his view constituted widespread and continuous institutional harassment. The most recent behaviour involved Mr T.S., but earlier behaviour involved Mr G.L. and Ms M.L. This behaviour, said to include offensive or denigrating comments, a threat to rate his performance as merely fair, exclusions from group meetings and public reprimands or humiliation, was successive and continuous. However, the refusal to take account of some behaviour alleged in the complaint fundamentally flawed the Subpanel’s determination in the initial assessment phase of whether the complainant had presented a prima facie case of institutional harassment.
Reference(s)
ILOAT Judgment(s): 4233, 4286, 4288, 4601
Keywords:
harassment; institutional harassment; time limit;
Judgment 4897
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her appraisal report for 2018.
Consideration 20
Extract:
[W]hile the complainant takes issue with the slowness with which her challenge to the contested appraisal was examined, her claim for compensation under this head – which is, incidentally, highly perfunctory – must be rejected. The evidence shows that the conciliation and objection procedures lasted, in this case, a total of six months. The Tribunal considers – notwithstanding the detailed observation made above concerning the time taken to notify the conciliation report – that this length of time cannot be considered unreasonable in the light of the nature and circumstances of the case.
Keywords:
delay; time limit;
Consideration 4
Extract:
[T]he Tribunal finds that, however regrettable, the short time limit granted to the complainant to refer the matter to the Appraisals Committee was not, in this case, such as to breach her rights to an effective appeal or due process (see, as regards the requirements of the case law on this point, Judgment 4795, consideration 7).
Reference(s)
ILOAT Judgment(s): 4795
Keywords:
performance report; rating; right of appeal; time limit;
Judgment 4896
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2018.
Considerations 3 and 5
Extract:
According to Article VII, paragraph 2, of the Statute of the Tribunal, “[t]o be receivable, a complaint must [...] have been filed within ninety days after the complainant was notified of the decision impugned”.
The Tribunal has consistently held that the period of time set forth by the Statute begins to run on the day following the date of notification of the impugned decision, but where the ninetieth day falls on a public holiday, the period is extended until the next business day (see, for example, Judgments 3801, consideration 3, 3708, consideration 3, 3630, consideration 3, or 2250, consideration 8).
[...]
The period provided for in Article VII, paragraph 2, of the Statute begins to run, as already stated, on the day following the date of notification of the impugned decision, meaning that its point of commencement is taken as the beginning of that day. The first day to be counted is therefore the day immediately following the day of notification – namely, in the present case, 19 December 2019 – and not the day after that (see, in particular, Judgments 4441, considerations 1 and 3, 4272, considerations 2 and 4, 3973, considerations 2 and 4, 3801, considerations 2 and 4, 3708, considerations 2 and 4, or 3630, considerations 2 and 4).
Reference(s)
ILOAT Judgment(s): 2250, 3630, 3630, 3708, 3708, 3801, 3801, 3973, 4272, 4441
Keywords:
receivability of the complaint; start of time limit; time bar; time limit;
Consideration 6
Extract:
As the Tribunal has repeatedly stated, time limits are an objective matter of fact and it should not rule on the lawfulness of a decision which has become final, because 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 (see, for example, Judgments 4374, consideration 7, 4160, consideration 9, 3828, consideration 7, 3406, consideration 12, or3002, consideration 13).
Reference(s)
ILOAT Judgment(s): 3002, 3406, 3828, 4160, 4374
Keywords:
late appeal; time bar; time limit;
Judgment 4884
138th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to close her harassment complaint following an investigation.
Consideration 9
Extract:
The complainant also takes issue with the length of time that elapsed between the date of submission of her internal appeal and that of the hearing before the Appeals Board by videoconference.
It should be recalled that, under the Tribunal’s settled case law, firstly, the unreasonableness of a delay in examining an internal appeal must be assessed in the light of the specific circumstances of a given case and, secondly, the amount of compensation liable to be granted under this head ordinarily depends on at least two considerations, namely the length of the delay and the effect of the delay on the employee concerned (see, for example, Judgments 4727, consideration 14, 4684, consideration 12, 4635, consideration 8, and 3160, consideration 17).
Reference(s)
ILOAT Judgment(s): 3160, 4635, 4684, 4727
Keywords:
moral injury; time limit;
Judgment 4883
138th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to close her harassment complaint at the end of the preliminary assessment procedure.
Considerations 11-12
Extract:
The complainant takes issue with what she regards as the excessive length of the internal appeal procedure.
It should be recalled that, under the Tribunal’s settled case law, firstly, the unreasonableness of a delay in examining an internal appeal must be assessed in the light of the specific circumstances of a given case and, secondly, the amount of compensation liable to be granted under this head ordinarily depends on at least two considerations, namely the length of the delay and the effect of the delay on the employee concerned (see, for example, Judgments 4727, consideration 14, 4684, consideration 12, 4635, consideration 8, and 3160, consideration 17).
In the present case, three and a half years passed between the submission of the notice of appeal, on 14 September 2018, and the notification of the final decision, on 9 March 2022. In absolute terms, such a delay is clearly excessive, particularly so having regard to the nature of the dispute.
However, firstly, the Tribunal notes that the complainant, who asked the Appeals Board three times to extend the time limit for submitting her detailed appeal, herself caused some of the delay in the procedure, and, moreover, it may seem reasonable, in view of the extensions obtained by the complainant, that they were also granted to the Organization. Secondly, the Organization explains, convincingly in the Tribunal’s view, that the functioning of the Appeals Board was considerably disrupted in 2020 and 2021 by the successive lockdowns ordered by the French authorities owing to the Covid-19 pandemic, which, in particular, affected the Board’s capacity to hold its hearings as usual. Lastly, the evidence shows that, owing to the continuation of the pandemic, to the national lockdown measures adopted on this occasion and to the health rules put in place at the Organization, it was suggested to the complainant on 27 April 2021 that she appear at a hearing before the Appeals Board by videoconference, but that she wished the hearing “to be held in person when the health situation allow[ed]”. Only later did the complainant agree for a hearing to be held by videoconference, which eventually could take place on 29 October 2021.
In the circumstances, the Tribunal can understand the time taken by the Organization to deal with the complainant’s appeal and considers that the complainant has not therefore duly established that the delay was wrongful. Accordingly, there is no reason to award her damages under this head.
Reference(s)
ILOAT Judgment(s): 3160, 4635, 4684, 4727
Keywords:
moral injury; time limit;
Judgment 4842
138th Session, 2024
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the application to her salary of the new salary scale for 2018.
Consideration 2
Extract:
With regard, firstly, to the failure to comply with various time limits during the internal appeals procedure, [...] the Tribunal, while regretting that the Organization does not adhere more closely to the time limits that it has itself established, notes that time limits of this kind are not intended to have the effect of nullifying a decision taken after their expiry. It follows that their non-observance does nottherefore render such decisions unlawful and, where that non-observance is wrongful, it may only entitle the staff member concerned to compensation if it causes actual injury to her or him, which it therefore falls to the staff member concerned to establish (see Judgment 4584, consideration 4). Moreover, the Tribunal has also stated that if the failure of appeal bodies to examine appeals within a reasonable time constitutes a failure to comply with the requirement that internal appeals be processed expeditiously and, consequently, a failing on the part of the organization concerned, nonetheless, the amount of compensation liable to be granted under this head ordinarily depends on two essential considerations, namely the length of the delay and the effect of the delay on the employee concerned (see, for example, Judgments 4727, consideration 14, 4635, consideration 8, 4178, consideration 15, and 4100, consideration 7).
Reference(s)
ILOAT Judgment(s): 4100, 4178, 4584, 4635, 4727
Keywords:
delay; delay in internal procedure; internal procedure; time limit;
Judgment 4830
138th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the implied decision dismissing his request for his administrative situation to be regularised, the decision ordering his transfer, the decision to award him a special post allowance in that it excluded a certain period and the amount in question was insufficient, and the decision announcing his promotion in that it was not retroactive and did not place him on step 7 of grade G.4.
Consideration 6
Extract:
[T]he Tribunal notes that, in his letter of 12 December 2018 addressed to the Secretary-General, the complainant based his claims on administrative decisions that he did not challenge within the period prescribed by [...] Staff Rule 11.1.2. It is clear from the evidence that the complainant did not submit a request for reconsideration in respect of his job description or his transfer when he was transferred on 1 January 2014 [...]. Neither did he submit a request for reconsideration in respect of the payslips which he subsequently received every month.
The Tribunal cannot accept the complainant’s argument that his request of 12 December 2018 was not time-barred because its purpose was to obtain compensation for the whole of the injury he allegedly suffered for the period from 1 January 2013 to 1 March 2020, and that actions of this type are not, as such, subject to any particular time limit.
The Tribunal considers this manner of presenting the case contrived, because, in a dispute involving a challenge to individual decisions, as here, compensation for injury arising from the alleged unlawfulness of such decisions could only be granted as a consequence of their setting aside, which presupposes by definition that they have been challenged within the applicable time limit. Endorsing the complainant’s argument would have the effect of authorising an organisation’s staff members in practice to evade the effects of the rules on time limits for filing appeals by allowing them to seek compensation at any time for the injury caused to them by an individual decision, even though they did not challenge that decision in time. Such a situation would scarcely be permissible having regard to the requirement of stability of legal relations which, as the Tribunal regularly points out in its case law, is the very justification for time bars (see, for example, Judgments 4742, consideration 9, and 4655, consideration 15).
It follows that the complaint is irreceivable to the extent that it concerns the implied decision dismissing his request of 12 December 2018 for his administrative situation to be regularised, because he failed to exhaust the internal means of redress as required by Article VII, paragraph 1, of the Statute of the Tribunal.
Reference(s)
ILOAT Judgment(s): 4655, 4742
Keywords:
compensation; failure to exhaust internal remedies; implied decision; internal remedies exhausted; internal remedies not exhausted; receivability of the complaint; time bar; time limit;
Judgment 4824
138th Session, 2024
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to close the case on his allegations of harassment and unequal treatment by the former Registrar of the ICC.
Considerations 5-7
Extract:
The ICC submits that the complaint is irreceivable because it was not filed within 90 days following the notification of the impugned decision, as required by Article VII, paragraph 2, of the Tribunal’s Statute […]. The case law further states that such time limits must be strictly adhered to. […] However, as the Tribunal recalled in consideration 2 of Judgment 4059, for example, the case law also recognizes that there are exceptions to the requirement of strict adherence to the applicable time limits in very limited circumstances. The circumstances identified in the case law are: where the complainant has been prevented by vis major from learning of the impugned decision in good time or where the organization, by misleading the complainant or concealing some paper from him or her so as to do him or her harm, has deprived that person of the possibility of exercising his or her right of appeal, in breach of the principle of good faith; and where some new and unforeseeable fact of decisive importance has occurred since the decision was taken, or where the staff member concerned by that decision is relying on facts or evidence of decisive importance of which he or she was not and could not have been aware before the decision was taken.
The complainant submits that the strict time limit should not be adhered to in this case because by the time he was notified of the impugned decision, he had already filed his third complaint, so the case was already pending before the Tribunal; that he could not submit a new complaint on the same matter before the Tribunal had ruled on his third complaint; and that once it had delivered Judgment 4271 on his third complaint, he filed his fourth complaint within the following 90-day period, which brings his case within the exceptional circumstances.
The foregoing submissions are rejected. The complainant was notified of the Registrar’s express final decision on his harassment complaint on 23 July 2019, and Article VII, paragraph 2, of the Tribunal’s Statute required him to file his complaint with the Tribunal within ninety days following that notification, that is, by 21 October 2019. He filed this complaint more than six months beyond the expiry of the ninety-day time limit. It is clear that the reasons he advances in the foregoing submissions do not fall within any of the “very limited circumstances” recalled above, in which the requirement of strict adherence to the time limit can be waived. […] In this regard, the fact that the complainant had already filed his third complaint impugning what he considered to be an implied decision to reject his harassment claim is irrelevant, given that the third complaint was clearly irreceivable for the reasons explained in Judgment 4271.
Reference(s)
ILOAT Judgment(s): 4059, 4271
Keywords:
express decision; late filing; receivability of the complaint; time limit;
Judgment 4823
138th Session, 2024
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to grant him a contract of indefinite duration.
Considerations 5-6 and 9
Extract:
Article VII, paragraph 1, of the Statute of the Tribunal indicates the following concerning the irreceivability of a complaint in a situation where the impugned decision is not a final decision, or the staff member concerned has not exhausted the internal means of redress available to her or him:
“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.”
It is desirable to recall that, in Judgment 4742, consideration 6, the Tribunal wrote the following on the necessity to abide by the time limits set forth for internal appeals and on the consequences of not doing so:
“The Tribunal has repeatedly emphasised the importance of the strict observance of applicable time limits when challenging an administrative decision. In Judgment 4673, consideration 12, it pointed out that a complaint will not be receivable if the underlying internal appeal was not filed within the applicable time limits (see also, in this regard, Judgment 4426, consideration 9, and Judgment 3758, considerations 10 and 11). According to the Tribunal’s firm precedent based on the provisions of Article VII, paragraph 1, of its Statute, the fact that an appeal lodged by a complainant was out of time renders her or his complaint irreceivable for failure to exhaust the internal means of redress available to staff members of the organisation, which cannot be deemed to have been exhausted unless recourse has been had to them in compliance with the formal requirements and within the prescribed time limit (see Judgments 4655, consideration 20, and 4517, consideration 7).”
In the same vein, the Tribunal has recalled many times the reasons why it is important to strictly observe applicable time limits when challenging an administrative decision. For instance, in Judgment 4673, considerations 12 and 13, the Tribunal held as follows:
“12. The Tribunal has repeatedly emphasised the importance of the strict observance of applicable time limits when challenging an administrative decision. In Judgment 4103, consideration 1, the Tribunal stated the following in this regard:
‘The complaint is irreceivable as the complainant failed to exhaust all internal means of redress in accordance with Article VII, paragraph 1, of the Tribunal’s Statute. The complainant’s grievance was time-barred when he submitted it [...] on 23 December 2014. Under Article VII, paragraph 1, of the Tribunal’s Statute, 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, [considerations] 10 and 11, and the case law cited therein).’
(See also Judgment 4426, consideration 9, in this regard.)
13. As the Tribunal also recalled in Judgment 4184, consideration 4, the time limits for internal appeal procedures and the time limits in the Tribunal’s Statute serve the important purposes of ensuring that disputes are dealt with in a timely way and that the rights of parties are known to be settled at a particular point of time (see also, to the same effect, Judgment 3704, considerations 2 and 3). The rationale for this principle is that time limits are an objective matter of fact and strict adherence to them is necessary to ensure the stability of the parties’ legal relations.””
[…] The clear and unambiguous terms of the 29 January 2020 decision indicate that this was a final decision. The Indefinite Appointment Advisory Board (IAAB) recommendation of 20 December 2019 that preceded this final decision confirms it also in unambiguous terms. Moreover, this is precisely how the complainant himself understood the situation; the 18 March 2021 letter of the Director General simply confirmed that this was indeed the situation, and it therefore cannot be considered as a new decision.
Reference(s)
ILOAT Judgment(s): 3704, 3758, 3758, 4103, 4184, 4426, 4517, 4655, 4673, 4742
Keywords:
final decision; receivability of the complaint; time limit;
Judgment 4822
138th Session, 2024
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to renew his fixed-term contract.
Considerations 7-8
Extract:
[A]s […] mentioned in Judgment 4741, consideration 12, the Tribunal has indicated on many occasions that, “[w]ith respect to Article VII, paragraph 2, of the Tribunal’s Statute, the Tribunal’s case law requires strict adherence to the ninety-day time limit on the grounds that time limits are an objective matter of fact and that strict adherence is necessary for the efficacy of the whole system of administrative and judicial review of decisions” (see Judgments 4354, consideration 7, 3947, consideration 5, and 3559, consideration 3).
The Tribunal has repeatedly emphasised the importance of the strict observance of applicable time limits. In Judgment 3847, consideration 3, involving again ESO, it notably stated that “the time limits for internal appeal procedures and the time limits in the Tribunal’s Statute serve the important purposes of ensuring that disputes are dealt with in a timely way and that the rights of parties are known to be settled at a particular point of time. The consistently stated principle that time limits must be strictly adhered to has been rationalized by the Tribunal in the following terms: 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. An inefficacious system could potentially adversely affect the staff of international organisations. Flexibility about time limits should not intrude into the Tribunal’s decision-making even if it might be thought to be equitable or fair in a particular case to allow some flexibility. To do otherwise would ‘impair the necessary stability of the parties’ legal relations’” (see, to the same effect, Judgment 4673, consideration 13).
Reference(s)
ILOAT Judgment(s): 3559, 3847, 3947, 4354, 4673, 4741
Keywords:
receivability of the complaint; time limit;
Judgment 4820
138th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to dismiss his moral harassment complaints, and claims compensation for the injury which he considers he has suffered.
Considerations 6-7
Extract:
Insofar as the complaint is directed against the decision of the Director General to dismiss the complainant’s first complaint for moral harassment against Mr P.H. as unfounded, the Tribunal notes the following:
(a) Where the Administration takes any action to deal with a claim, by forwarding it to the competent internal appeal body for example, this step in itself constitutes a “decision upon the claim” within the meaning of Article VII, paragraph 3, of the Statute of the Tribunal, which forestalls an implied rejection that could be referred to the Tribunal (see, for example, Judgments 3715, consideration 4, 3428, consideration 18, and 3146, consideration 12).
(b) Under Article 92(2) of the Staff Regulations, the complainant should have filed a complaint before the Tribunal within 90 days from the expiry of the four-month time limit for the Administration to respond to his internal complaint, even if the matter had been referred to the Joint Committee for Disputes. The present complaint should therefore, in principle, be declared irreceivable as time-barred under Article VII, paragraph 2, of the Statute of the Tribunal, combined with Article 92(2) of the Staff Regulations.
(c) However, in this case, the Tribunal considers that the complainant was misled by the Organisation when it indicated to him that, since his internal complaint had been referred to the Joint Committee for Disputes, he had, in accordance with the Tribunal’s case law on the application of Article VII, paragraph 3, of its Statute, to await the final decision of the Director General before being able to file a complaint with the Tribunal. By so doing, the Organisation overlooked the fact that, pursuant to Article 92(2) of the Staff Regulations, failure by the Director General to respond to an internal complaint within four months from the date on which it was lodged shall be deemed to constitute an implied decision rejecting it, which may be impugned before the Tribunal. There is no need to declare the complaint irreceivable as time-barred, insofar as it is directed against an implied decision to reject from the Director General. To rule otherwise would amount to unduly depriving the complainant of his right to refer the matter to the Tribunal solely due to the conduct of the Organisation.
(d) The Tribunal observes that, while the complainant’s failure to comply with the 90-day time limit to file a complaint with the Tribunal is recognized above as admissible due to the fact that he was wrongly informed by the Organisation that he had to await an express decision, the complainant did not wait for this decision to be issued before filing his complaint. The complaint should therefore, in principle, be declared irreceivable for failure to exhaust internal means of redress, as required by Article VII, paragraph 1, of the Statute of the Tribunal. However, in this case, taking into account the period of one year and seven months that had elapsed between 5 June 2020, when the complainant filed his internal complaint, and 7 February 2022, when he filed his complaint with the Tribunal, and the fact that his counsel had followed up, to no avail, with the Director General, the Tribunal considers that the complainant was faced with a paralysis of the internal appeal procedure that would allow him to proceed directly to it. Under the Tribunal’s case law, a complainant is entitled to file a complaint directly with the Tribunal against the initial decision which she or he intends to challenge where the competent bodies are not able to determine the internal appeal within a reasonable time having regard to the circumstances, provided that she or he has done her or 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 final decision within a reasonable time (see, for example, Judgments 4660, consideration 2, 4271, consideration 5, 4268, considerations 10 and 11, 4200, consideration 3, 3558, consideration 9, 2039, consideration 4, or 1486, consideration 11).
(e) In addition, the Tribunal notes that a final decision was ultimately taken by the Director General on 12 May 2022, as was the opinion of the Joint Committee for Disputes relating thereto, and that that decision was issued in the course of proceedings. Since the Tribunal has the complete dossier in its possession and the parties have had the opportunity to comment fully in their written submissions on the express decision to reject the complainant’s internal complaint of 5 June 2020, and thus on the decision to reject the first harassment complaint inasmuch as it was directed against Mr P.H., it considers that, in accordance with its case law, it is appropriate to treat the internal complaint as being directed against the latter decision of 12 May 2022 (see in particular, for similar cases, Judgments 4769, consideration 3, 4768, consideration 3, 4660, consideration 6, 4065, consideration 3, and 2786, consideration 3).
The present complaint is, accordingly, receivable insofar as it challenges the lawfulness of the Director General’s decision of 12 May 2022 to reject, as unfounded, the first moral harassment complaint directed against Mr P.H. It will therefore be examined from this standpoint by the Tribunal.
Reference(s)
ILOAT Judgment(s): 1486, 2039, 2786, 3146, 3428, 3558, 3715, 4065, 4200, 4268, 4271, 4660
Keywords:
absence of final decision; administrative delay; case law; delay; direct appeal to tribunal; exception; express decision; iloat statute; implied decision; impugned decision; internal appeal; internal remedies exhausted; judicial review; reasonable time; receivability of the complaint; staff member's duties; time limit;
Judgment 4819
138th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to place him on “administrative leave” as a consequence of the structural reorganization of the Eurocontrol Agency, the Organisation’s secretariat, which led to the abolition of his functions and the launch of a reassignment procedure, as well as the decision to reject his allegations of moral harassment.
Consideration 2
Extract:
In its final comments filed on 21 December 2023, Eurocontrol argues that the complaint should be declared irreceivable insofar as it is directed against the Director General’s decision of 17 February 2022 to dismiss the moral harassment complaint. In this regard, it relies on the fact that this decision was not challenged by the complainant within the statutory time limits.
The Tribunal notes that, in accordance with the provisions of Article 92 of the Staff Regulations, it was for the complainant to lodge an internal complaint under paragraph 2 thereof, either against what he regarded as an implicit decision to dismiss his moral harassment complaint upon the expiry of four months from the date on which the complaint was lodged, or against the decision taken by the Director General on 17 February 2022 to dismiss that complaint.
Since the complainant has taken neither of these steps, it must be considered that he has failed, before filing his complaint, to exhaust the internal means of redress within the meaning of Article VII, paragraph 1, of the Statute of the Tribunal.
Accordingly, the complaint is irreceivable insofar as it is directed against the dismissal of the moral harassment complaint.
Keywords:
failure to exhaust internal remedies; time limit;
Consideration 3
Extract:
(a) Where the Administration takes any action to deal with a claim, by forwarding it to the competent internal appeal body for example, this step in itself constitutes a “decision upon [the] claim” within the meaning of Article VII, paragraph 3, of the Statute of the Tribunal, which forestalls an implied rejection that could be referred to the Tribunal (see, for example, Judgments 3715, consideration 4, 3428, consideration 18, and 3146, consideration 12).
(b) Pursuant to Article 92(2) of the Staff Regulations, the complainant should have filed a complaint before the Tribunal within 90 days as from the expiry of the four-month time limit available to the Administration to reply to his internal complaint, even though the matter had been referred to the Joint Committee for Disputes. The present complaint should therefore, in principle, be declared irreceivable as time-barred under Article VII, paragraph 2, of the Statute of the Tribunal, in conjunction with Article 92(2) of the Staff Regulations.
(c) However, in the present case, the Tribunal considers that the complainant was misled by the Organisation when it indicated to him that, since his internal complaint had been referred to the Joint Committee for Disputes, he had, in accordance with the Tribunal’s case law on the application of Article VII, paragraph 3, of its Statute, to await the final decision of the Director General before being able to file a complaint with the Tribunal. By so doing, the Organisation failed to take into account that, pursuant to Article 92(2) of the Staff Regulations, failure by the Director General to respond to an internal complaint within four months from the date on which it was lodged is deemed to constitute an implied decision rejecting it, which may be impugned before the Tribunal. Accordingly, there is no need to declare the complaint irreceivable as time-barred, insofar as it is directed against an implicit decision to dismiss by the Director General. To rule otherwise would amount to unduly depriving the complainant of his right to refer the matter to the Tribunal solely due to the conduct of the Organisation.
(d) The Tribunal observes that while the complainant’s failure to comply with the 90-day time limit to file a complaint with the Tribunal is recognized above as admissible due to the fact that he was wrongly informed by the Organisation that he had to await an express decision, the complainant did not wait for this decision to be issued before filing his complaint. The complaint should therefore, in principle, be declared irreceivable for failure to exhaust internal means of redress as required by Article VII, paragraph 1, of the Statute of the Tribunal. However, in this case, taking into account the period of more than two years that had elapsed between 31 July 2019, when the complainant lodged his internal complaint, and 13 August 2021, when he filed his complaint, and the fact that his counsel had followed up on several occasions, to no avail, with the Director General and the Chairperson of the Joint Committee for Disputes, the Tribunal considers that the complainant was faced with a paralysis of the internal appeals procedure that would allow him to come directly to it. Under the Tribunal’s case law, a complainant is entitled to file a complaint directly with the Tribunal against the initial decision which she or he intends to challenge where the competent bodies are not able to determine the internal appeal within a reasonable time having regard to the circumstances, provided that she or he has done her or 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 final decision within a reasonable time (see, in particular, Judgments 4660, consideration 2, 4271, consideration 5, 4268, considerations 10 and 11, 4200, consideration 3, 3558, consideration 9, 2039, consideration 4, or 1486, consideration 11).
(e) In addition, the Tribunal notes that a final decision was ultimately taken by the Director General on 17 February 2022 and that that decision was issued in the course of proceedings. Since the Tribunal has the complete file in its possession and the parties have had the opportunity to comment fully in their written submissions on that decision to expressly dismiss the complainant’s internal complaint of 31 July 2019, it considers that, in accordance with its case law, it is appropriate to treat the internal complaint as being directed against the decision of 17 February 2022 (see in particular, for similar cases, Judgments 4769, consideration 3, 4768, consideration 3, 4660, consideration 6, 4065, consideration 3, and 2786, consideration 3).
Reference(s)
ILOAT Judgment(s): 1486, 2039, 2786, 3146, 3428, 3558, 3715, 4065, 4200, 4268, 4271, 4660, 4768, 4769
Keywords:
direct appeal to tribunal; internal remedies exhausted; time limit;
Judgment 4795
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his performance evaluation report for 2018.
Consideration 7
Extract:
[A]lthough the complainant submits that the time limits prescribed by [...] Communiqué [2/17] for submitting comments on the opinion issued by the chairman of the Board and for lodging an objection to the performance evaluation report are unreasonably short, that is ten days in each case, the Tribunal considers that, while the periods are indeed brief, they are not so to a degree that would breach the principles of the right to effective appeal and the right to due process.
Keywords:
performance report; rating; right of appeal; time limit;
Judgment 4781
137th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject her complaint of harassment and abuse of authority.
Consideration 3
Extract:
According to the Tribunal’s case law, respect for the adversarial principle and the right to be heard in the internal appeal procedure requires that the official concerned be afforded the opportunity to comment on all relevant issues relating to the contested decision (see, for example, Judgments 4697, consideration 11, 4662, consideration 11, 4408, consideration 4, and 2598, consideration 6). Accordingly, that official must have the opportunity, insofar as is compatible with the rules of receivability and procedure to which she or he is subject, to freely develop the arguments in support of her or his appeal.
[...]
A provision that gives an appeal body the ability to waive the time limits that normally apply confers on that body discretionary power to be used according to the circumstances of each case. However, in the event of a dispute on the matter, it is for the Tribunal to ensure that the appeal body has not exercised that power improperly (see, for example, Judgment 3267, considerations 3 and 4).
In the present case, the Tribunal considers that, given the very particular situation in which the complainant found herself at the material time, the Appeal Board was indeed presented with exceptional circumstances within the meaning of the aforementioned subparagraph (d), which warranted permission being given to the complainant to finalise her appeal outside the time limit, and that the Board was therefore acting improperly in refusing to give her that opportunity, attempting to justify this position by a reference to “normal practice and procedures”, from which it should therefore have departed.
Reference(s)
ILOAT Judgment(s): 2598, 3267, 4408, 4662, 4697
Keywords:
adversarial proceedings; exception; internal appeal; right to be heard; time limit;
Judgment 4779
137th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her dismissal for misconduct.
Considerations 4 & 10
Extract:
[T]he complainant argues, first, that the time limit within which [...] an investigation must normally be carried out was exceeded.
[...]
However, neither the time limit within which the investigation should normally be completed, nor the requirement to state the reasons why that time limit has been exceeded, is intended to have the effect of invalidating the investigation report in the event of a breach. However regrettable they may be, the anomalies in question are therefore not such as to render unlawful the sanction imposed at the conclusion of the disciplinary proceedings on the basis of the findings contained in that report.
[...]
[T]he fact that the prescribed time limit within which the disciplinary chamber must in principle deliver its advice was exceeded does not have the effect of invalidating that advice, and therefore – as with the failure to comply with the time limit applicable to investigations, discussed above – it has no bearing on the lawfulness of the sanction imposed at the conclusion of the disciplinary proceedings.
Keywords:
disciplinary procedure; inquiry; time limit;
Judgment 4777
137th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the calculation of his remuneration and the determination of his step following his promotion from grade G.6 to grade P.3.
Consideration 2
Extract:
[T]he complainant complains that the impugned decision was not notified to him until a little over two weeks after the expiry of the 45-day time limit prescribed in ITU’s Staff Rule 11.1.4.
But the Tribunal has recalled that time limits of this kind are not intended to have the effect of nullifying a decision taken after their expiry. Their non-observance does therefore not render such decisions unlawful and, in applicable cases, only entitles the staff member concerned to compensation if it causes injury to her or him (see Judgment 4584, consideration 4). Since the submissions do not indicate how this delay caused any injury to the complainant, the Tribunal considers that the plea is unfounded.
Reference(s)
ILOAT Judgment(s): 4584
Keywords:
delay; time limit;
Judgment 4741
137th Session, 2024
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the non-renewal of her fixed-term contract.
Considerations 11-12
Extract:
[T]he Tribunal already recalled in Judgment 1734, consideration 3, with regard to Staff Rule VI 1.02, the very provision on which this dispute turns, emphasising the following:
“VI 1.02 is quite plain. An internal appeal being ruled out, [the complainant] should have thought of filing a complaint against non-renewal. If he could not understand the article on his own, he was free to get advice.”
It follows that, under Article VII, paragraph 2, of the Statute of the Tribunal, since the complainant did not file her complaint within 90 days of the Organisation’s decision not to renew or extend her fixed-term contract, it is also irreceivable from that standpoint. The Tribunal has recalled on many occasions that, “[w]ith respect to Article VII, paragraph 2, of the Tribunal’s Statute, the Tribunal’s case law requires strict adherence to the ninety-day time limit on the grounds that time limits are an objective matter of fact and that strict adherence is necessary for the efficacy of the whole system of administrative and judicial review of decisions” (see Judgments 4354, consideration 7, 3947, consideration 5, and 3559, consideration 3).
Reference(s)
ILOAT Judgment(s): 1734, 3559, 3947, 4354
Keywords:
interpretation; interpretation of rules; non-renewal of contract; ratione temporis; receivability of the complaint; time limit;
Judgment 4720
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2015.
Consideration 6
Extract:
It is at least arguable that a right to challenge a general decision through a challenge to an individual decision implementing it is not an open-ended and enduring right. The right to challenge the individual decision is subject to ordinary time limits. Accordingly, so is, arguably, the right to challenge the general decision (see Judgment 3614). But as this point was not raised in the pleas, the Tribunal will not address it in detail with a view to considering, ex officio, the receivability of this complaint on this basis.
Reference(s)
ILOAT Judgment(s): 3614
Keywords:
general decision; individual decision; time limit;
Judgment 4709
136th Session, 2023
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the refusal to recognise her illness as attributable to official duty.
Consideration 13
Extract:
[T]he complainant claims damages for the length and complexity of the procedures conducted in respect of her compensation claim [...].
However, the Tribunal notes that the complainant has already been awarded compensation of 2,500 Swiss francs for the length of the first procedure in the decision of 19 July 2019 and that the second procedure was conducted within a period of some four months, which cannot be regarded as inordinate in view of the time required for the Committee to undertake a rigorous and thorough examination of the case. In the circumstances, the Tribunal considers that the complainant has not established that she has suffered under this head an injury warranting additional compensation [...].
Keywords:
delay in internal procedure; time limit;
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