Receivability of the complaint (76, 77, 78, 947, 88, 89, 656, 743, 94, 95, 96, 97, 98, 99, 734, 748, 749,-666)
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Judgment 4905
138th Session, 2024
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to set the rate of deterioration of physical health resulting from an occupational accident at only 15 per cent and, consequently, to award him the sum of 11,874.60 Swiss francs as an indemnity for deterioration of physical health.
Consideration 7
Extract:
The Tribunal notes that the email of 27 August 2021 is not presented as a formal decision but as a request to sign a receipt in order to allow the complainant to be paid the sum of 11,874.60 euros. The fact remains, however, that it was in fact through this email that he learned of the amount that CERN considered it should pay him as an indemnity for deterioration of his physical health. However, that amount had evidently been calculated on the basis of a rate of deterioration of physical health set at 15 per cent – even though that rate was not explicitly stated in the email or in the documents appended to it.
It follows that a decision must necessarily have been taken previously, following the aforementioned letter of 21 April 2021,
setting the abovementioned rate at 15 per cent, even though, in view of the evidence on file, that decision was apparently not formalised in a written document. Consequently, since the complainant was informed of the existence of such a decision for the first time, implicitly and indirectly, by the aforementioned email of 27 August 2021, the Tribunal considers that the complainant had no other option but to challenge both the established rate of deterioration of physical health and the amount of the resulting indemnity following that email of 27 August 2021.
Keywords:
implied decision; receivability of the complaint;
Judgment 4902
138th Session, 2024
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his performance evaluation for 2019 rating such performance as “fair”.
Consideration 3
Extract:
[T]he complainant is not putting to the Tribunal an independent claim regarding harassment allegations as such in the present complaint. Rather, he brings up his alleged harassment in arguing the grounds for unlawfulness of his 2018 performance evaluation, inferring that it was based on extraneous improper considerations. It is therefore appropriate for the Tribunal to examine this argument, although only to the extent that it is strictly related to the legality of the specific decision challenged in the case at hand (see, for example, Judgments 4149, consideration 7, 3688, consideration 1, 3617, consideration 2, and 2837, consideration 3).
No issue of irreceivability arises in this regard.
Reference(s)
ILOAT Judgment(s): 2837, 3617, 3688, 4149
Keywords:
harassment; receivability of the complaint;
Judgment 4901
138th Session, 2024
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his performance evaluation for 2018 rating such performance as “fair”.
Consideration 3
Extract:
[T]he complainant is not putting to the Tribunal an independent claim regarding harassment allegations as such in the present complaint. Rather, he brings up his alleged harassment in arguing the grounds for unlawfulness of his 2018 performance evaluation, inferring that it was based on extraneous improper considerations. It is therefore appropriate for the Tribunal to examine this argument, although only to the extent that it is strictly related to the legality of the specific decision challenged in the case at hand (see, for example, Judgments 4149, consideration 7, 3688, consideration 1, 3617, consideration 2, and 2837, consideration 3).
No issue of irreceivability arises in this regard.
Reference(s)
ILOAT Judgment(s): 2837, 3617, 3688, 4149
Keywords:
harassment; receivability of the complaint;
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.
Judgment keywords
Keywords:
complaint dismissed; performance report; rating; receivability of the complaint;
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;
Judgment 4886
138th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the deferral of his application for clearance to carry a service weapon.
Considerations 3-6
Extract:
It is settled case law that, “[a]s a matter of law, a claim is moot when there is no longer a live controversy”, bearing in mind that “[w]hether or not there is a live controversy is a matter to be determined by the Tribunal” (see Judgments 4060, consideration 3, 3583, consideration 2, and 2856, consideration 5). This case law cannot be construed to mean that the Tribunal must confine itself to determining whether there is still disagreement between the parties as to the claim in question – which, unless the complainant withdraws the complaint or the claim supporting it, must normally be the case. It is of course for the Tribunal to assess in the specific case, over and above that determination, whether the dispute objectively retains a reason for existence.
In the present case, although the complainant persists in challenging the decision refusing to grant him the clearance to carry a weapon that he had requested in the context of the reform that was initially undertaken, the Tribunal considers that the dispute arising from that decision has in fact been rendered moot by the abandonment of that reform.
In this respect, the Tribunal notes that, even if the process of arming security officers was theoretically only suspended and not stopped, its implementation simply ceased following the Director-General’s decision to that effect and, in view of the evidence on file, has never been resumed since. Moreover, given the age of the clearances issued to some security officers before the process was suspended, it is hardly conceivable that they could still be considered valid should that process be restarted in the future.
In addition, it should be noted that the contested decision of 5 February 2018 was merely a deferral of the complainant’s application for clearance, and not a final rejection of it, as was subsequently confirmed by the Chief of the Security and Safety Section in his email of 11 May 2018, stating that the complainant’s file would not be submitted to the French authorities “as matters stand”.
It follows from these findings that the contested decision had no tangible bearing on the complainant’s situation, since the security officers who were cleared in 2018 were not actually equipped with a firearm. Furthermore, setting aside that decision would not have any practical effect, since it would not allow the complainant to be armed.
Lastly, the circumstance referred to by the complainant in his written submissions that the decision to defer his application for clearance was not formally withdrawn by the Organization is not determinative in this case, since that decision’s lack of effect has had the same practical consequences as a withdrawal and, as stated above, the question here is to determine whether the challenge to that decision objectively retains a reason for existence in this particular case.
Consequently, the Tribunal considers that the complainant’s claim for the setting aside of the deferral of his application for clearance must be regarded as moot.
The dispute may nevertheless have retained a purpose insofar as it concerns the award of moral damages, which the complainant claims on account of the alleged unlawfulness of the impugned decision.
However, the file shows that this is not the case.
Under the Tribunal’s case law, an unlawful decision does not entitle the staff member concerned to moral damages unless that decision has caused her or him more severe injury than that resulting from the unlawfulness itself (see, in particular, Judgments 4156, consideration 5, and 1380, consideration 11).
In the present case, and bearing in mind that the contested decision had no tangible effect, the Tribunal considers that any flaws tainting that decision are not, in any event, such as to have caused the complainant such particular injury.
The position would only be different if the complainant were to establish that the deferral of his application for clearance had been motivated, as he submits, by malicious bias against him that formed part of a pattern of moral harassment and retaliatory measures of which he accuses his supervisors. However, it should be noted that the complainant’s allegations in this regard were the subject of a request for an investigation – which should be considered as a harassment complaint – which he had submitted, by a memorandum dated 16 February 2018, in particular to the Ethics Adviser. The preliminary assessment of the merits of that complaint led to it being closed, in accordance with the recommendation of the Ethics Office, by a decision of the Director-General of 14 November 2018.
Although it is true that the complainant challenged that decision in the internal appeals procedure, the Director-General did not take a final decision on his appeal to the Appeals Board on this matter (nor on the appeals concerning other harassment complaints that he had filed) until 24 June 2022, that is after he had filed the present complaint. This complaint is thus irreceivable insofar as it seeks to criticise that decision to close his harassment complaint, because the complainant failed to comply with the requirement to exhaust internal means of redress set out in Article VII, paragraph 1, of the Statute of the Tribunal. Moreover, in these circumstances, it cannot be found, in the examination of the present case, that the malicious bias alleged by the complainant has been proven. Although it must be noted that the decision of 24 June 2022 was impugned by the complainant in his third complaint, which will be ruled on at a later date, if the Tribunal were to uphold that complaint, it would not fail to draw all the consequences in terms of compensation for the injury caused by that decision.
Lastly, although the complainant also contends that the decision to defer his application for clearance damaged his reputation and well-being, the Tribunal considers that, in the circumstances of the case, the alleged injury cannot in any event be regarded as substantial. As regards the complainant’s allegation that this decision also damaged his health, this has clearly not been proven, in particular since the only document submitted as evidence on this point, namely a statement of sick leave for 2018, does not establish that the medical problems justifying this leave were specifically linked to the decision in question.
Since the sequence of events recalled above shows that the complaint was already moot when it was filed with the Tribunal on 3 June 2022 – and not that it became moot during these proceedings, in which case the Tribunal would have found that there was no longer any need to rule on it – the complaint must simply be dismissed (see, in particular, Judgment 4635, consideration 6).
Reference(s)
ILOAT Judgment(s): 2856, 3583, 4060, 4635
Keywords:
cause of action; claim moot; complaint; receivability of the complaint;
Judgment 4879
138th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the deferral of his application for clearance to carry a service weapon.
Considerations 4-7
Extract:
It is settled case law that, “[a]s a matter of law, a claim is moot when there is no longer a live controversy”, bearing in mind that “[w]hether or not there is a live controversy is a matter to be determined by the Tribunal” (see Judgments 4060, consideration 3, 3583, consideration 2, and 2856, consideration 5). This case law cannot be construed to mean that the Tribunal must confine itself to determining whether there is still disagreement between the parties as to the claim in question – which, unless the complainant withdraws the complaint or the claim supporting it, must normally be the case. It is of course for the Tribunal to assess in the specific case, over and above that determination, whether the dispute objectively retains a reason for existence.
[...]
In this respect, the Tribunal notes that, even if the process of arming security officers was theoretically only suspended and not stopped, its implementation simply ceased following the Director-General’s decision to that effect and, in view of the evidence on file, has never been resumed since. Moreover, given the age of the clearances issued to some security officers before the process was suspended, it is hardly conceivable that they could still be considered valid should that process be restarted in the future.
In addition, it should be noted that the contested decision of 5 February 2018 was merely a deferral of the complainant’s application for clearance, and not a final rejection of it, as was subsequently confirmed by the Chief of the Security and Safety Section in his email of 11 May 2018, stating that the complainant’s file would not be submitted to the French authorities “as matters stand”.
It follows from these findings that the contested decision had no tangible bearing on the complainant’s situation, since the security officers who were cleared in 2018 were not actually equipped with a firearm. Furthermore, setting aside that decision would not have any practical effect – irrespective of the outcome of the dispute concerning the complainant’s dismissal, which has taken place in the meantime and is the subject of his eleventh complaint – since it would not allow the complainant to be armed.
Lastly, the circumstance referred to by the complainant in his rejoinder that the decision to defer his application for clearance was not formally withdrawn by the Organization is not determinative in this case, since that decision’s lack of effect has had the same practical consequences as a withdrawal and, as stated above, the question here is to determine whether the challenge to that decision objectively retains a reason for existence in this particular case.
Consequently, the Tribunal considers that the complainant’s claim for the setting aside of the deferral of his application for clearance must be regarded as moot.
The dispute may nevertheless have retained a purpose insofar as it concerns the award of moral damages, which the complainant claims on account of the alleged unlawfulness of the impugned decision.
However, the file shows that this is not the case.
[...]
Since the sequence of events [...] shows that the complaint was already moot when it was filed with the Tribunal on 29 January 2022 – and not that it became moot during these proceedings, in which case the Tribunal would have found that there was no longer any need to rule on it – the complaint must simply be dismissed (see, in particular, Judgment 4635, consideration 6).
Reference(s)
ILOAT Judgment(s): 2856, 3583, 4060, 4635
Keywords:
cause of action; claim moot; receivability of the complaint;
Judgment 4864
138th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to withhold two months’ salary to comply with a national Court order.
Consideration 11
Extract:
[T]he lawfulness of an administrative decision must be assessed having regard to the circumstances prevailing at the time it was adopted. It is firm case law that the validity of a decision or measure cannot be judged on the basis of facts occurring subsequently to that decision or measure (see Judgment 2364, consideration 2).
Reference(s)
ILOAT Judgment(s): 2364
Keywords:
administrative decision; internal remedies exhausted; receivability of the complaint;
Judgment 4847
138th Session, 2024
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the rejection of her appeal against an implied decision not to compensate her for alleged constructive dismissal.
Considerations 5-7
Extract:
Given the centrality of Judgment 532 to the approach of the Appeals Board, it is desirable to discuss what the Tribunal decided. The relevant facts in that matter may be briefly stated. The genesis of the complainant’s grievance was deductions from his salary for periods when he was on strike, which he said had been wrongly deducted. The complainant appealed against the alleged wrongful deduction on 20 June 1981. The appeal was not decided within two months, namely by 20 August 1981, as required by the Service Regulations for permanent employees of the European Patent Office, and the complainant challenged in the Tribunal the implied rejection of his claims in a complaint filed on 17 November 1981. Earlier, on 30 October 1981, the President of the Office wrote to the complainant saying that as his claims were refused, the matter would be passed on to the Appeals Committee.
In Judgment 532, the Tribunal took the view that the letter of 30 October 1981 had two legal consequences. One was that it was a decision within the meaning of Article VII, paragraph 3, of the Tribunal’s statute. Accordingly, and secondly, there was an express decision on his claim. In those circumstances, the Tribunal said that from 30 October 1981, “the complainant could no longer properly challenge any implied decision”, Article VII, paragraph 3, did not apply and under Article VII, paragraph 1, the complaint was irreceivable because internal means of redress had not been exhausted. The Tribunal accepted that until the President sent his letter of 30 October 1981 the “complainant could have filed a complaint by virtue of Article VII (3)” but said “[i]n any event, since an express decision was taken on 30 October, there has been no question since then of challenging any implied decision”.
[I]t is a persuasive authority and there is an underlying legitimate rationale for requiring a complainant to challenge only an express decision, if made after an implied decision and before the challenge was initiated. It is true that the Tribunal eschews undue formality in relation to process (see Judgments 3845, consideration 4, 3759, consideration 6, and 3592, consideration 3). But by facilitating a challenge to an implied decision in the face of an express decision made before the challenge was initiated, the Tribunal would potentially create a licence for a complainant to challenge the relevant decision (on the assumption that both the implied and express decision deal with the same subject matter) without necessarily having to confront the reasons likely to have been given in the express decision and require the internal appeal body to consider and evaluate those reasons. As the Appeal Board clearly seems to suggest, this would be antithetical to the interests of the internal justice system.
Reference(s)
ILOAT Judgment(s): 532, 3592, 3759, 3845
Keywords:
express decision; implied decision; internal appeal; receivability of the complaint;
Judgment keywords
Keywords:
complaint dismissed; constructive dismissal; implied decision; receivability of the complaint;
Judgment 4846
138th Session, 2024
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges a finding made in the decision not to initiate disciplinary proceedings against her.
Judgment keywords
Keywords:
cause of action; complaint dismissed; receivability of the complaint;
Considerations 11-12
Extract:
There is no material difference between the circumstances arising in this case and those that were considered by the Tribunal in Judgment 4295. In that case the complaint was dismissed because the complainant had no cause of action. A decision had been made by the Director General that no disciplinary measure would be imposed on the complainant. As the Tribunal observed, the decision was beneficial to the complainant, and thus he had no cause of action. To the extent that a finding of fact (contested by the complainant) had been made which led to the decision, that finding, as the Tribunal explained, “forms part of the reasons articulated in arriving at the decision”. In the present case, the decision not to commence disciplinary proceedings was likewise favourable to the complainant. To the extent findings of fact were made and adhered to in the impugned decision and reflected in the modified text of the letter of 22 February 2018, they were findings informing what was ultimately the favourable decision. Given the modification of the letter, there was no conclusory finding that the complainant had engaged in misconduct, the matter that troubled the WAB […] The complainant has no cause of action and her complaint should be dismissed.
Keywords:
administrative decision; cause of action; disciplinary measure; disciplinary procedure; impugned decision; misconduct; receivability of the complaint;
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;
Consideration 7
Extract:
According to firm precedent based on the provisions of Article VII, paragraph 1, of the Statute of the Tribunal, the fact that an internal appeal is lodged by a complainant 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 be 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, 4160, consideration 13, and 4159, consideration 11, as well as, for example, Judgments 2888, consideration 9, 2326, consideration 6, and 2010, consideration 8).
However, there are exceptions to this general principle laid down in the Tribunal’s case law. One of them is the case where the defendant organisation misled the complainant, depriving him of the possibility of exercising his right of appeal in violation of the principle of good faith (see, for example, Judgments 4184, consideration 4, 3704, considerations 2 and 3, 2722, consideration 3, and Judgment 3311, considerations 5 and 6).
Reference(s)
ILOAT Judgment(s): 2010, 2326, 2722, 2888, 3311, 3704, 4159, 4160, 4184, 4655
Keywords:
failure to exhaust internal remedies; internal remedies exhausted; internal remedies not exhausted; late appeal; receivability of the complaint; right of appeal;
Consideration 5
Extract:
While it is true that, in the context of the present complaint, ITU relies in part on grounds other than those which it raised during the internal appeal procedure before the Appeal Board, the Tribunal considers that an organisation may, notwithstanding the case law to which the complainant refers in this regard, put forward grounds other than those relied on in the internal appeal procedure, because the organisation did raise, during that procedure, an objection as to receivability based on a failure to have proper recourse to the internal means of redress, regardless of the precise ground. To find the opposite would amount to compelling an organisation, in the context of the internal appeal procedure, to put forward from the outset all of the grounds that could possibly justify its objection as to receivability, even where it could believe – rightly or wrongly – that the principal grounds raised before the internal appeal body were of themselves sufficient.
Keywords:
estoppel; new plea; receivability of the complaint;
Judgment keywords
Keywords:
complaint allowed; promotion; receivability of the complaint; special post allowance; transfer;
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 keywords
Keywords:
complaint dismissed; late filing; receivability of the complaint;
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 4818
138th Session, 2024
Green Climate Fund
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision denying her and her dependents an individual medical insurance plan following her separation from service.
Considerations 7-8
Extract:
According to [Judgment 4200, consideration 3], the Tribunal’s case law establishes that delays in the organisation’s internal procedures do not necessarily mean that the appeal process is paralyzed. The Tribunal emphasizes the need for the complainant to demonstrate that the delay is “inordinate and inexcusable”, that she or he has made every effort to expedite the internal procedure, to no avail, and that the circumstances show that the appeal body is unable to reach a decision within a reasonable time.
Upon close examination, the Tribunal finds no evidence in the record suggesting that the internal appeal process was “necessarily paralyzed”. The communications during the COVID-19 pandemic indicate that the SAC was responsive and operational. The complainant was properly informed of the time frame, that is, the stay of proceedings on her appeal until 23 May 2020 due to the evolution of the COVID-19 pandemic. Regarding the complainant’s inquiry of 12 June 2020 as to whether the stay of proceedings on her appeal had been lifted, the SAC promptly replied to her on 18 June that it had recently resumed operations, indicating that the appeal body would reach a decision within a reasonable time after the resumption of operations. At the date on which her third complaint was filed, the SAC’s delay in submitting its report to the Executive Director could not be considered as “inordinate and inexcusable”. The complainant’s third complaint is therefore premature and must be dismissed as irreceivable.
Reference(s)
ILOAT Judgment(s): 4200
Keywords:
direct appeal to tribunal; internal remedies exhausted; receivability of the complaint;
Judgment 4816
138th Session, 2024
South Centre
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the calculation of the compensation for the short notice, due by the South Centre, after the non-renewal of his short-term appointment as well as the calculation of his last salary.
Judgment keywords
Keywords:
administrative decision; case sent back to organisation; compensation; competence; complaint allowed; decision quashed; internal appeal; internal appeals body; payslip; receivability of the complaint; right of appeal; safeguard;
Considerations 4-6
Extract:
Before the Tribunal, the South Centre repeats its contention that the complainant’s internal appeal was irreceivable, premised mainly on its submission that the notification of intention to appeal was filed out of time and was accordingly time-barred. On the other hand, the complainant states, in his complaint, that by his internal appeal he challenged the calculation and the amount of “indemnities” he received with his last payslip dated 18 December 2020 and that the Tribunal has accepted that a payslip could be considered as a challengeable decision (see, for example, consideration 2 of Judgment 3833). The complainant states that his internal appeal was filed against the shortfall of his last salary and the compensation for the short notice within one month of receipt of his last salary and the emails of December 2020 explaining the organisation’s calculation. However, whether or not the complainant had challenged the non-renewal of his contract, as the defendant contends, the calculation and the amount of “indemnities” he received with his last payslip, or the shortfall of his last salary and the compensation for the short notice are matters which were to be considered by an ad hoc Appellate Body, which should have been established pursuant to Staff Regulation 11.2.
Regarding appeals, Staff Regulation 11.2 relevantly states that an ad hoc Appellate Body shall be established by the Board according to the criteria and procedures set out in Annex VII to hear and adjudicate on appeals from staff members. As to the procedure for an appeal from an administrative decision, Annex VII.B. requires a staff member wishing to appeal an administrative decision to notify the Board, through the Chairperson, of intent to appeal within one month of the date of receiving notification of the decision in writing. Within one month of receipt of the staff member’s notice of intent to appeal, the Chairperson of the Board is to refer the appeal to an ad hoc Appellate Body, consisting of three of its members, one of whom shall act as Chairperson. The ad hoc Appellate Body shall then receive the staff member’s written appeal, and a written reply thereto by the Chairperson of the Board. The Appellate Body may also hear further observations on, or rebuttals to, the initial written submissions, orally or in writing. It may also call for oral testimony from the parties or witnesses, including from members of the Secretariat, and for supporting documentation. Under Annex VII.C., a decision of the ad hoc Appellate Body may be brought for review to the Tribunal. The expression “appeal” in Annex VII.B is a reference to an appeal whether it is receivable or not. The obligation of the Chairperson is therefore to refer to the ad hoc Appellate Body a matter even if it is arguably not a receivable appeal. Moreover, there is no express provision in the Annex conferring power on the Chairperson to reject an appeal if it is irreceivable.
It is obvious from the foregoing provisions that the Executive Director and the Chairperson of the Board erred by responding to the notification of intention to appeal in the way they did, given that they were not empowered to do so under the rules governing appeals. The notification of intention to appeal was to be considered by an ad hoc Appellate Body which should have been constituted for that purpose and the Chairperson of the Board was required to refer the notification of intention to appeal to that body. As this did not occur, the complainant was denied the benefit and possibility of having the decision he challenged effectively reviewed by the competent internal appeal body, which was his right (see, for example, Judgments 4620, consideration 5, and 3067, consideration 20).
Reference(s)
ILOAT Judgment(s): 3067, 3833, 4620
Keywords:
administrative decision; competence; internal appeal; internal appeals body; payslip; receivability of the complaint; right of appeal; safeguard;
Judgment 4811
137th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, widow and successor of a former consultant for the FAO, who died while on official travel on the Organization’s behalf, impugns the Director-General’s decision dismissing her internal appeal against the decision informing her that the incident leading to her husband’s death had not been recognised as attributable to the performance of official duties and that she therefore was not entitled to claim compensation.
Consideration 7
Extract:
The Tribunal entirely agrees with the findings and recommendation of the Appeals Committee, which the Director-General followed in the impugned decision, and recalls 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 (see, for example, Judgments 4673, consideration 13, 4374, consideration 8, 4184, consideration 4, and the case law cited therein).
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, 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, 4160, consideration 13, and 4159, consideration 11, as well as, for example, Judgments 2888, consideration 9, 2326, consideration 6, and 2010, consideration 8). As the complainant’s appeal of 23 July 2021 was lodged late, the present complaint is clearly irreceivable.
Reference(s)
ILOAT Judgment(s): 2010, 2326, 2888, 4159, 4160, 4184, 4374, 4655, 4673
Keywords:
failure to exhaust internal remedies; internal appeal; late appeal; receivability of the complaint;
Judgment 4809
137th Session, 2024
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks a contractual redefinition of his employment relationship and the setting aside of the decision not to renew his last contract.
Consideration 3
Extract:
It is true that the contracts in question did not themselves set any time limit for submitting an appeal in their connection. However, under the Tribunal’s case law, since the complainant intended to obtain recognition as an official, he ought to have lodged his grievance within the time limit applicable to any ILO official under Article 13.2(1) of the Staff Regulations, that is within six months of the treatment complained of (see Judgments 2888, consideration 8, 2838, considerations 4 to 6, and 2708, considerations 6 to 8). Admittedly, it would in practice have been awkward for the complainant to dispute the lawfulness of the initial contracts in question because he might have jeopardised further employment by the Organization and it would have been difficult for him to prove at the outset that, as he submits, he was engaged in ongoing duties. But these considerations do not hold good for subsequent contracts, and they ought to have been challenged at the latest within six months of their respective expiry dates. As has been said, the complainant – who had never requested that his employment relationship be redefined before it was ended – did not submit his grievance until 14 February 2007. The evidence shows that, at that date, the only contracts that could still be challenged within the prescribed time limit were an external collaboration contract for DIALOGUE between 6 November and 15 December 2006 and the last contract of this type, granted to the complainant at the end of the preceding contract for employment in the same department and which ended on 8 January 2007.
Pursuant to Article VII, paragraph 1, of the Statute of the Tribunal, the fact that the complainant’s grievance was out of time insofar as it sought the redefinition of all the other contracts renders his complaint irreceivable to the same extent for failure to exhaust the applicable internal means of redress, since they 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, for example, Judgments 4655, consideration 20, 4159, consideration 11, and 2888, consideration 9).
Reference(s)
ILOAT Judgment(s): 2708, 2838, 2888, 4159, 4655
Keywords:
internal remedies not exhausted; late appeal; receivability of the complaint;
Judgment 4807
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the report of the Medical Committee which extended her sick leave until 31 May 2016 and concluded that she was not suffering from invalidity.
Considerations 6-8
Extract:
According to the Tribunal’s well-established case law, the Medical Committee’s opinion is not an administrative decision of the type that can be challenged before the Tribunal as it is merely a step in the process of reaching the final decision of the Administration. In Judgment 4118, consideration 2, the Tribunal clarified the principle regarding a complaint directed against the Medical Committee’s report:
“With respect to the claims directed against the ‘decision’ of the Medical Committee of 21 June 2007, the Tribunal notes at the outset that they are manifestly irreceivable, inasmuch as the alleged decision is only an opinion amounting to a preparatory step which, as such, cannot be appealed. The only act adversely affecting the complainant is the administrative decision taken in light of that opinion, namely, in this case, the decision of the President of the Office of 12 July 2007. Thus, as the complainant himself appears to admit in his rejoinder, it is that decision that he should have challenged, if he considered that he had grounds to do so, and not the opinion of the Medical Committee of 21 June 2007.”
[…] [I]n the instant case, the only act adversely affecting the complainant is the administrative decision endorsing the Medical Committee’s opinion, contained in the 23 June 2014 letter from the Head of Department, Human Resources […] Expert Services, and not the Medical Committee’s opinion of 2 June 2014 or its letter of 11 June 2014, which the complainant erroneously considers to be the decision to be impugned.
Therefore, the complaint is irreceivable […].
Reference(s)
ILOAT Judgment(s): 4118
Keywords:
administrative decision; medical opinion; receivability of the complaint; step in the procedure;
Judgment keywords
Keywords:
complaint dismissed; invalidity; medical board; receivability of the complaint;
Judgment 4805
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests Circular No. 359 on the European Patent Office closure policy in 2015.
Consideration 3
Extract:
In his pleas before the Tribunal, the complainant makes no attempt to establish even an arguable case that this general decision either negatively impacted on him immediately or this was likely (Judgment 4119, consideration 4). In the absence of any argument which might persuade the Tribunal that this essential foundation of his case was even arguably correct, it is not open to the complainant to immediately develop lengthy arguments about the abolition of the [General Advisory Committee], the composition of the General Consultative Committee […] and whether consultation occurred or was necessary, and additionally challenge the internal appeal process. These last-mentioned matters are without purpose in the absence of any case concerning the lawfulness of the content of the Circular.
Reference(s)
ILOAT Judgment(s): 4119
Keywords:
cause of action; general decision; individual decision; receivability of the complaint;
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