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Internal remedies not exhausted (779,-666)
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Keywords: Internal remedies not exhausted
Total judgments found: 41
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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;
Judgment 4817
138th Session, 2024
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns a decision ordering a new investigation into her alleged misconduct and suspending the disciplinary measures pending the new investigation and a new decision in the matter. She contests this decision to the extent it maintained the finding that she committed misconduct.
Consideration 10
Extract:
In her rejoinder, the complainant submits that the Organization failed to order that she be reimbursed the amount of approximately 19,088 Swiss francs she had voluntarily repaid to the WTO on 13 March 2018 for the spouse allowance, the health insurance subsidy for 2015, and the home leave lump sums for 2016, pursuant to the finding of the OIO Report (some of which, she argues, she did not even lawfully owe). This claim seems inconsistent with the complainant’s former conduct, as she voluntarily offered to repay to the WTO the amounts which she had acknowledged were not owed to her. In any event, this is a new claim, submitted for the first time before the Tribunal, and it is, thus, irreceivable, pursuant to Article VII, paragraph 1, of the Tribunal’s Statute.
Keywords:
claim; iloat statute; internal remedies not exhausted;
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 4801
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the appointment of the Principal Director of Human Resources.
Consideration 6
Extract:
No claim for material damages was made in the internal appeal and cannot now be made in the Tribunal (see, for example, Judgments 4304, consideration 8, and 2360, consideration 7).
Reference(s)
ILOAT Judgment(s): 2360, 4304
Keywords:
internal remedies not exhausted; material damages; receivability of the complaint;
Judgment 4780
137th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the monthly amount deducted from her pension as contribution to her after-service health insurance in the period from May 2001 to December 2019.
Consideration 7
Extract:
[T]he ITU consistently stated, including before the Appeal Board, that the complainant’s appeal was irreceivable for failure to address to the Secretary-General a request for reconsideration of the contested decision, as per the requirement in Staff Rule 11.1.2, and there is nothing on the file to indicate that the Secretary-General waived that requirement. Accordingly, the Tribunal considers that the ITU did not exempt the complainant from the requirement to submit a request for reconsideration in order to exhaust internal remedies.
Keywords:
internal remedies not exhausted; waiver of internal appeal procedure;
Consideration 4
Extract:
It is firmly established in the Tribunal’s case law that a staff member is not allowed, on her or his own initiative, to evade the requirement that internal means of redress must be exhausted before a complaint is filed with the Tribunal (see Judgments 4443, consideration 11, and 3458, consideration 7).
Reference(s)
ILOAT Judgment(s): 3458, 4443
Keywords:
internal appeal; internal remedies not exhausted; receivability of the complaint; review of administrative decision;
Consideration 7
Extract:
The fact that the Appeal Board considered that the appeal was partly receivable and went on to examine it on the merits, on the basis of a deliberate “flexible approach” to receivability, is immaterial.
As the Tribunal said in Judgment 2536, consideration 5:
“The complaint must therefore be found irreceivable insofar as it follows an internal appeal which was itself irreceivable. Contrary to the view put forward by the complainant, the fact that the Appeals Board examined not only the issue of lack of jurisdiction or irreceivability but also the merits of the case does not render the defendant’s objection to receivability inadmissible.”
(See also, for example, Judgments 3330, consideration 2, and 3311, consideration 6).
Reference(s)
ILOAT Judgment(s): 2536, 3311, 3330
Keywords:
internal appeal; internal appeals body; internal remedies not exhausted; receivability of the complaint;
Consideration 8
Extract:
As the complainant did not address a request for reconsideration of the initial decision […], in accordance with Staff Rule 11.1.2, she has not exhausted internal remedies. Her complaint is therefore irreceivable, according to Article VII, paragraph 1, of the Tribunal’s Statute, and must be dismissed.
Keywords:
internal procedure; internal remedies not exhausted; review of administrative decision;
Judgment 4775
137th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to “terminate [her] contract after [her] resignation”.
Judgment keywords
Keywords:
complaint dismissed; direct appeal to tribunal; failure to exhaust internal remedies; former official; internal appeal; internal procedure; internal remedies not exhausted;
Consideration 4
Extract:
While Article VII, paragraph 3, of the Tribunal’s Statute, allows for direct recourse to the Tribunal “[w]here the Administration fails to take a decision upon any claim of an official within sixty days from the notification of the claim to it”, this paragraph must be read in conjunction with paragraph 1 of Article VII. According to Article VII, paragraph 1, of the Statute of the Tribunal, “[a] complaint shall not be receivable unless the decision impugned is a final decision and the person concerned has exhausted such other means of redress as are open to her or him under the applicable Staff Regulations”. It follows that the Tribunal cannot hear a complaint against an implicit decision to reject a claim unless the complainant has exhausted all available internal remedies (see Judgments 4517, consideration 4, and 2631, consideration 3).
Reference(s)
ILOAT Judgment(s): 2631, 4517
Keywords:
direct appeal to tribunal; failure to exhaust internal remedies; implied decision; internal remedies not exhausted;
Consideration 8
Extract:
FAO Manual paragraph 331.4, entitled ‘Appeals by Former Staff Members’, provides that former staff members shall have access to the appeals procedure. FAO Manual paragraph 331.4.1 specifically states that “[f]ormer staff members [...] may lodge an appeal in accordance with the provisions of this Manual Section subject to Manual [paragraphs] 331.4.2 and 331.4.3”.
Keywords:
failure to exhaust internal remedies; former official; internal appeal; internal procedure; internal remedies not exhausted;
Judgment 4763
137th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject her claim that her illnesses be recognized as service-incurred.
Judgment keywords
Keywords:
complaint dismissed; internal remedies not exhausted; receivability of the complaint; step in the procedure;
Judgment 4760
137th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the failure to establish a medical board to examine the percentage of her permanent loss of function.
Judgment keywords
Keywords:
claim moot; complaint dismissed; failure to exhaust internal remedies; final decision; internal remedies not exhausted;
Consideration 2
Extract:
Under the Tribunal’s settled case law, the provisions of Article VII, paragraph 3, must be read in the light of paragraph 1 of that Article and are not applicable where the official concerned can use internal remedies, in which case these must be exhausted, as required under paragraph 1, before a complaint may be filed with the Tribunal (see Judgments 4517, consideration 4, and 2631, considerations 3 to 5).
Reference(s)
ILOAT Judgment(s): 2631, 4517
Keywords:
failure to exhaust internal remedies; internal procedure; internal remedies not exhausted; receivability of the complaint;
Judgment 4728
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the Medical Committee’s decision to further extend his sick leave until 31 March 2015 and its failure to recognise that he suffered from invalidity attributable to the performance of official duties.
Consideration 6
Extract:
The short answer to both complaints is that neither concerns an administrative decision of the type which can be impugned in proceedings before the Tribunal. The decisions of the Medical Committee to extend the complainant’s sick leave were to facilitate the further investigation and consideration of the complainant’s medical condition, at least in the eyes of the majority, as part of the process of determining whether he was disabled and entitled to an invalidity benefit. They were both “steps in the process” directed towards the making of the final decision about the complainant’s entitlement (see, for example, Judgment 3893, consideration 8). Therefore, the complainant failed to exhaust internal means of redress, as is required by Article VII, paragraph 1, of the Statute of the Tribunal.
Reference(s)
ILOAT Judgment(s): 3893
Keywords:
administrative decision; internal remedies not exhausted; medical examination; step in the procedure;
Judgment 4704
136th Session, 2023
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the determination made on his Clearance Certificate, upon his separation from service, that there was no medical reason to believe that he was incapacitated due to illness constituting an impairment to health likely to be permanent or of a long duration, as well as the decision to separate him from IAEA while on sick leave.
Considerations 5-6
Extract:
It is well established in the Tribunal’s case law that “[o]rdinarily, the process of decision-making involves a series of steps or findings which lead to a final decision. Those steps or findings do not constitute a decision, much less a final decision. They may be attacked as a part of a challenge to the final decision but they, themselves, cannot be the subject of a complaint to the Tribunal” (see Judgments 4404, consideration 3, 3961, consideration 4, 3876, consideration 5, and 3700, consideration 14).
[…]
The Tribunal finds that neither Dr L.’s certification nor the IAEA’s statement in the impugned decision for the purpose of explaining Dr L.’s certification constitutes a final decision within the meaning of Article VII, paragraph 1, of the Tribunal’s Statute. The complainant’s claims concerning his incapacitation are therefore irreceivable.
Reference(s)
ILOAT Judgment(s): 3700, 3876, 3961, 4404
Keywords:
internal remedies not exhausted; step in the procedure;
Judgment 4676
136th Session, 2023
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges EMBL’s refusal to guarantee that the survivor’s pension to which his wife will be entitled at the time of his death will be at least 35 per cent of his last salary; to award him a children’s allowance for each of his wife’s three children from her previous marriages; and to verify that his current pension was properly calculated.
Consideration 10
Extract:
The Tribunal has often stated that time limits are binding and an objective matter of fact, and that it should not entertain a complaint filed out of time, since any other conclusion, even if founded on considerations of equity, would impair the necessary stability of the parties’ legal relations that is the very justification for a time bar (see Judgment 3482, consideration 4). And pursuant to Article VII, paragraph 1, of the Statute of the Tribunal, a complaint before the latter shall not be receivable unless the person concerned has exhausted the means of redress that are open to her or him under the applicable staff regulations.
Reference(s)
ILOAT Judgment(s): 3482
Keywords:
internal remedies not exhausted; late appeal; time limit;
Judgment 4661
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks reimbursement for medical expenses and challenges overall the insurance policy.
Consideration 1
Extract:
Under the Tribunal’s settled case law, the provisions of Article VII, paragraph 3, must be read in the light of paragraph 1 of that Article and are not applicable unless, as required under paragraph 1, the official concerned has first exhausted the internal remedies available to her or him (see Judgments 4517, consideration 4, and 2631, considerations 3 to 5).
Reference(s)
ILOAT Judgment(s): 2631, 4517
Keywords:
internal remedies not exhausted; receivability of the complaint;
Consideration 2
Extract:
Even though the complainant had requested authorization to appeal the decision directly to the Tribunal, this request was rejected by the Secretary General […]. She has failed to provide the Tribunal with evidence that she was otherwise exempted from the obligation to exhaust internal procedures in compliance with Rule 13.4.1, paragraph 1, quoted in consideration 1. It is firm case law that a staff member is not allowed, on her or his own initiative, to evade the requirement that internal means of redress must be exhausted before a complaint is filed with the Tribunal (see Judgments 4443, consideration 11, and 3458, consideration 7).
Reference(s)
ILOAT Judgment(s): 3458, 4443
Keywords:
internal remedies not exhausted; waiver of internal appeal procedure;
Judgment keywords
Keywords:
complaint dismissed; internal remedies not exhausted; receivability of the complaint;
Judgment 4636
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the extension of his sick leave following the expiry of his maximum period of sick leave and the failure to recognise that he suffered from invalidity which was attributable to the performance of official duties.
Judgment keywords
Keywords:
complaint dismissed; internal remedies not exhausted; receivability of the complaint; step in the procedure;
Judgment 4634
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant filed his complaint directly with the Tribunal, without lodging an appeal with the EPO’s Appeals Committee.
Judgment keywords
Keywords:
complaint dismissed; internal remedies not exhausted; summary procedure;
Judgment 4573
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to reject as time-barred his request for review contesting deductions made from his remuneration in February 2013 and November 2014 for, respectively, pension contributions and the dependents and education allowances.
Consideration 3
Extract:
Pursuant to the provisions of Article VII, paragraph 1, of the Statute of the Tribunal and in accordance with the Tribunal’s case law, the complaint is 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, for example, Judgments 4160, consideration 13, 4103, consideration 1, 4101, consideration 3, 2888, consideration 9, as well as Judgments 2010, 2326 and 2708 referred to therein).
Reference(s)
ILOAT Judgment(s): 2888, 4101, 4103, 4160
Keywords:
internal remedies not exhausted; late appeal;
Judgment keywords
Keywords:
complaint dismissed; internal remedies not exhausted; late appeal; summary procedure;
Judgment 4571
134th Session, 2022
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to reject a request for review against a failure to answer a claim for damages based on alleged negligence of the Organization.
Consideration 3
Extract:
Article VII, paragraph 1, of the Statute of the Tribunal provides that “[a] complaint shall not be receivable unless the decision impugned is a final decision and the person concerned has exhausted such other means of redress as are open to her or him under the applicable Staff Regulations”. It is firmly established in the case law that, in order to comply with that provision, the complainant must follow the available internal appeal procedures properly (see, for example, Judgments 3296, consideration 10, and 3749, consideration 2).
Reference(s)
ILOAT Judgment(s): 3296, 3749
Keywords:
internal remedies not exhausted;
Judgment keywords
Keywords:
complaint dismissed; internal remedies not exhausted; summary procedure;
Judgment 4570
134th Session, 2022
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to reject her request to suspend the consideration by the Joint Administrative Review Board of three internal appeals she had lodged, pending the Tribunal’s determination on corresponding complaints filed directly with it.
Judgment keywords
Keywords:
complaint dismissed; internal remedies not exhausted; summary procedure;
Consideration 2
Extract:
The Chief of Staff simply confirmed what is required by the Statute of the Tribunal, which, in Article VII, paragraph 1, provides that “[a] complaint shall not be receivable unless the decision impugned is a final decision and the person concerned has exhausted such other means of redress as are open to her or him under the applicable Staff Regulations”. The decision is therefore obviously lawful.
Keywords:
internal remedies not exhausted;
Consideration 3
Extract:
In the request addressed to the Director General the complainant raised a number of issues related to the composition of the JARB. In substance, the complainant argues that the Administration as a whole has a conflict of interest in all internal appeals lodged by her. However, this type of argument can be invoked before the Tribunal only when challenging a final administrative decision. Indeed, a decision concerning the composition of an internal body is not a final administrative decision amenable to review by the Tribunal, but merely a step in the process leading to a final administrative decision. As such, it may be challenged before the Tribunal only in the context of a complaint impugning the decision to be taken at the end of the internal appeal procedure (see, for example, Judgments 4131, consideration 4, and 4297, consideration 7).
Reference(s)
ILOAT Judgment(s): 4131, 4297
Keywords:
composition of the internal appeals body; internal remedies not exhausted; step in the procedure;
Judgment 4561
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject as time-barred his appeal against the President’s refusal to organise a strike ballot in accordance with the applicable rules.
Judgment keywords
Keywords:
complaint dismissed; internal remedies not exhausted; late appeal;
Judgment 4560
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decisions (i) to recover the amounts paid to him for Long-Term Care insurance benefits in respect of his ex-wife and (ii) to demand the immediate repayment of the outstanding balance of a home loan he took out from the EPO in 2006.
Consideration 6
Extract:
It was in the [August] letter that the Director, HR Operations, informed the complainant of the decision that he should repay the outstanding balance on his home loan. The [December] letter, which the complainant contested by way of request for review […], merely confirmed that decision. It was not a new decision on the matter and, therefore, did not trigger a new time limit within which the complainant was required to submit a request for review, pursuant to Article 109(2) of the Service Regulations (see Judgment 4116, considerations 4 and 5). As he did not submit his request for the review of the [August] decision that required him to repay the outstanding balance on his home loan within the time limit stipulated in Article 109(2) of the Service Regulations, he failed to exhaust the internal means of redress that were available to him. His complaint is therefore also irreceivable, pursuant to Article VII, paragraph 1, of the Tribunal’s Statute, to the extent that he seeks to contest the decision to repay his home loan.
Reference(s)
ILOAT Judgment(s): 4116
Keywords:
confirmatory decision; internal remedies not exhausted; late appeal;
Judgment 4489
133rd Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the amount of moral damages paid to her by the EPO for the decision not to finalise her two performance management reports for 2011 and part of 2012.
Consideration 9
Extract:
In the internal appeal, the complainant sought moral damages but did not seek material damages. Accordingly, her claim for material damages in these proceedings in the Tribunal is not receivable (see, for example, Judgment 3967, consideration 5, and also Judgment 4304, consideration 8).
Reference(s)
ILOAT Judgment(s): 3967, 4304
Keywords:
internal remedies not exhausted; new claim;
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