|
|
 |
|
|
Failure to exhaust internal remedies (656,-666)
You searched for:
Keywords: Failure to exhaust internal remedies
Total judgments found: 49
1, 2, 3 | next >
Judgment 4814
137th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who was the subject of an investigation into allegations of harassment and abuse of authority, alleges that she received no reply, within the sixty-day time limit, to the claim submitted to the Director-General regarding “multiple conflicts of interest” of the Internal Oversight Service.
Consideration 7
Extract:
Secondly, and even more fundamentally, it is well established in the Tribunal’s case law that procedural steps taken in the course of a process leading to a final decision cannot be the subject of a complaint to the Tribunal, though they may be challenged in the context of a complaint directed against that final decision (see Judgments 4704, consideration 5, 4404, consideration 3, 3961, consideration 4, 3876, consideration 5, and 3700, consideration 14). In the present case, the refusal to act on the request for the IOS’s divestiture is part of the process leading to a decision resulting from the investigation report (see, for a similar case, Judgment 3958, consideration 15). Accordingly, any alleged irregularities in the investigation could only be raised in the context of a complaint directed against the outcome of the disciplinary proceedings initiated against her, provided that she first exhausted the internal remedies available to her, as required by Article VII, paragraph 1, of the Statute of the Tribunal.
Reference(s)
ILOAT Judgment(s): 3700, 3876, 3958, 3961, 4404, 4704
Keywords:
direct appeal to tribunal; failure to exhaust internal remedies; step in the procedure; summary procedure;
Consideration 6
Extract:
Firstly, the Tribunal considers that the complainant’s reliance on Article VII, paragraph 3, of its Statute is misplaced. It is clear from her submissions that the request made by her counsels in their letter of 1 December 2022 addressed to the Director-General, which had been submitted for the first time on 18 November 2022, had already been considered and explicitly rejected by the DDG on 25 and 29 November 2022. The fact that this request was subsequently escalated to the Director-General does not alter the conclusion that the Administration had already taken a decision on it, thus excluding the application of Article VII, paragraph 3, of the Tribunal’s Statute.
Keywords:
direct appeal to tribunal; failure to exhaust internal remedies; implied decision; summary procedure;
Judgment 4813
137th Session, 2024
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former staff member of Interpol whose fixed-term appointment was terminated during the probationary period due to unsatisfactory performance, asks the Tribunal to order his reinstatement or to award him compensation.
Considerations 3 & 5
Extract:
It is firmly established in the Tribunal’s case law that, in order to comply with Article VII, paragraph 1, of the Statute of the Tribunal, which provides that a complaint is not 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 complainant must follow the available internal appeal procedures (see, for example, Judgments 4634, consideration 2, 3749, consideration 2, and 3296, consideration 10). The case law further states that a staff member of an international organisation cannot of her or his own initiative evade the requirement that internal remedies must be exhausted prior to filing a complaint with the Tribunal (see Judgments 4056, consideration 4, 3458, consideration 7, 3190, consideration 9, and 2811, considerations 10 and 11, and the case law cited therein).
[…]
In the present case, […] the complainant’s request for review was rejected by a decision of 6 October 2022, which then became the subject of his internal appeal. The complainant filed the present complaint on 15 July 2023, prior to the completion of the [Joint Appeals Committee]’s proceedings and, hence, while his appeal was still pending. Thus, the 6 October 2022 decision is not a final decision within the meaning of Article VII, paragraph 1, of the Tribunal’s Statute as the internal means of redress have not been exhausted. The decision to terminate the complainant’s appointment could only be challenged in the context of a complaint directed against the final decision taken by the Secretary General following the delivery of the [Joint Appeals Committee]’s consultative opinion.
Reference(s)
ILOAT Judgment(s): 2811, 3190, 3296, 3458, 3749, 4056, 4634
Keywords:
direct appeal to tribunal; failure to exhaust internal remedies; summary procedure;
Judgment 4812
137th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant requests moral and material damages for the harm she allegedly suffered as a result of her supervisor’s behaviour and the unduly extended length of time of the investigation.
Considerations 7-8
Extract:
Article VII, paragraph 3, of the Tribunal’s Statute relevantly provides that “[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, the person concerned may have recourse to the Tribunal and her or his complaint shall be receivable in the same manner as a complaint against a final decision”.
In the present case, […] the complainant’s claim to be granted redress for the actions of her supervisor and the time taken to complete the investigation was rejected by a decision of 9 November 2021, which then became the subject of her internal appeal. Thus, although there may have been some delay on the part of the Director-General in taking the final decision on that appeal, she is obviously not in the situation contemplated by Article VII, paragraph 3, of the Tribunal’s Statute.
Keywords:
direct appeal to tribunal; failure to exhaust internal remedies; implied decision; summary procedure;
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 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.
Judgment keywords
Keywords:
complaint dismissed; failure to exhaust internal remedies; former official; internal appeal; 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 4769
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns what he refers to as decisions concerning Eurocontrol Agency’s reorganisation, and his transfer following that reorganisation.
Consideration 8
Extract:
[T]he complainant seeks the setting aside of the decision [...] ordering his transfer [...]. However, since the evidence shows that the complainant never used internal means of redress to challenge that decision, which was, moreover, taken after he had lodged his internal complaint on 20 September 2019, the Tribunal finds that his request to have that decision set aside must be dismissed as irreceivable under Article VII, paragraph 1, of its Statute for failure to exhaust internal remedies.
Keywords:
failure to exhaust internal remedies;
Judgment 4768
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns what he refers to as decisions concerning Eurocontrol Agency’s reorganisation and his transfer following that reorganisation.
Consideration 5
Extract:
[T]he Tribunal observes that, in his internal complaint of 21 October 2019, in addition to challenging his transfer on 27 September, the complainant – as he himself states in his rejoinder – in effect requested a position complying with the applicable rules and the corresponding job description. In Judgment 4694, consideration 7, in the case of such a request, the Tribunal pointed out that Article 92(1) of Eurocontrol’s Staff Regulations, on which the complainant relies, provides that, if that request is rejected, whether implicitly or explicitly, an internal complaint as referred to in Article 92(2) must be lodged against that rejection before the matter is brought before the Tribunal. In Judgment 4694, consideration 8, the Tribunal further stated:
“However, the submissions show that no internal complaint challenging this implied or express decision to refuse [his request] was ever made by the complainant at the relevant time, and therefore he did not exhaust the relevant internal means of redress, thus contravening the requirements of Article VII, paragraph 1, of the Statute of the Tribunal.”
It follows that the challenge to the decision rejecting the request for “a written individual decision that specifie[d] [the complainant’s] tasks and responsibilities that [were] as a minimum in the scope of [his] previous job with a proper assessment of the grade associated to the new position” is irreceivable because the complainant failed to exhaust internal remedies. The same applies to the complainant’s claim requesting the Tribunal to order Eurocontrol to establish and provide him with a “real position and a description of the duties, tasks and responsibilities [...] commensurate with his grade, level and experience”
Reference(s)
ILOAT Judgment(s): 4694
Keywords:
failure to exhaust internal remedies;
Judgment 4764
137th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to dismiss her for misconduct.
Consideration 2
Extract:
One matter arising from the complainant’s pleas […] concerns the decision to place her “on administrative leave” in March 2018 which she challenges in her complaint. The legality of the suspension decision was not challenged at the time. Any grievance about that decision should have been raised then (see, for example, Judgment 4461, consideration 5). The [Global Board of Appeal] concluded, correctly, that the claims in the internal appeal, insofar as they related to the suspension decision, were irreceivable as time-barred. Accordingly, insofar as the legality of the suspension decision is challenged in these proceedings, the challenge is irreceivable because the complainant has not exhausted internal means of redress, a matter the Tribunal can consider ex officio (see, for example, Judgment 4597, consideration 8).
Reference(s)
ILOAT Judgment(s): 4461, 4597
Keywords:
competence of tribunal; failure to exhaust internal remedies; receivability of the complaint;
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 4742
137th Session, 2024
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks compensation for the unfair treatment she considers she has suffered because her applications for several positions were rejected and she was not able to take part in training.
Considerations 5-6
Extract:
Staff Regulation R VI 1.05 provides that appeals must be lodged within 60 days of notification of the disputed decision. The decisions on which the complainant’s claim for moral damages rests were therefore not submitted for an internal appeal within the time limit prescribed in the Staff Regulations.
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).
Reference(s)
ILOAT Judgment(s): 3758, 4426, 4517, 4655, 4673
Keywords:
failure to exhaust internal remedies; late appeal; receivability of the complaint;
Judgment 4694
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision confirming his fitness for work and instructing him to resume his duties.
Consideration 8
Extract:
[T]he submissions show that no internal complaint challenging this implied or express decision to refuse to regard him as eligible for the arrangements for part-time work on medical grounds was ever made by the complainant at the relevant time, and therefore he did not exhaust the relevant internal means of redress, thus contravening the requirements of Article VII, paragraph 1, of the Statute of the Tribunal.
Keywords:
failure to exhaust internal remedies; receivability of the complaint;
Judgment 4673
136th Session, 2023
The Pacific Community
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her appointment during her extended probation period.
Consideration 12
Extract:
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, under 10 and 11, and the case law cited therein).”
(See also Judgment 4426, consideration 9, in this regard.)
Reference(s)
ILOAT Judgment(s): 3758, 4103, 4426
Keywords:
failure to exhaust internal remedies; late appeal; receivability of the complaint;
Judgment 4655
136th Session, 2023
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decisions rejecting their requests for redefinition of their employment relationships.
Consideration 20
Extract:
According to the Tribunal’s firm precedent based on the provisions of Article VII, paragraph 1, of its Statute, the fact that the appeals lodged by the complainants were out of time renders their complaints irreceivable for failure to exhaust the internal means of redress available to staff members of the Organization, 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 4160, consideration 13, and 4159, consideration 11, as well as, for example, Judgments 2888, consideration 9, 2326, consideration 6, and 2010, consideration 8).
Reference(s)
ILOAT Judgment(s): 2010, 2326, 2888, 4159, 4160
Keywords:
failure to exhaust internal remedies; late appeal; receivability of the complaint;
Judgment 4654
136th Session, 2023
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks a redefinition of his employment relationship and the setting aside of the decision not to renew his employment contract.
Consideration 13
Extract:
According to the Tribunal’s firm precedent based on the provisions of Article VII, paragraph 1, of its Statute, the fact that the complainant’s appeal was lodged out of time renders the claim in question irreceivable for failure to exhaust the internal means of redress available to the Organization’s staff members, 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 4160, consideration 13, and 4159, consideration 11, as well as, for example, Judgments 2888, consideration 9, 2326, consideration 6, and 2010, consideration 8).
Reference(s)
ILOAT Judgment(s): 2010, 2326, 2888, 4159, 4160
Keywords:
failure to exhaust internal remedies; late appeal;
Judgment 4404
132nd Session, 2021
African, Caribbean and Pacific Group of States
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks reimbursement of an amount wrongly deducted from her pay owing to double national taxation of her income, and compensation for the moral injury allegedly suffered as a result.
Judgment keywords
Keywords:
amicable settlement; complaint dismissed; failure to exhaust internal remedies; settlement out of court;
Consideration 3
Extract:
As the Tribunal has repeatedly stated in its case law, “[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 Judgment 2366, consideration 16, confirmed by Judgments 3433, consideration 9, 3512, consideration 3, 3700, consideration 14, 3876, consideration 5, and 3961, consideration 4).
In this case, the email [...], the sole purpose of which was to invite the complainant to submit documents deemed necessary by the organisation’s services so that the deductions could be reimbursed, was merely a step in preparation for the decision that would ultimately be taken as to the payment of the sums in question. That email cannot therefore be construed as constituting a final decision within the meaning of Article VII, paragraph 1, of the Statute of the Tribunal and could not, therefore, be impugned before the Tribunal (for a similar case involving a request for the production of supporting documents required for the examination of an application for financial benefits, see Judgment 3876, considerations 4 and 5).
It follows that the complaint must be dismissed as irreceivable.
Reference(s)
ILOAT Judgment(s): 2366, 3433, 3512, 3700, 3876, 3961
Keywords:
disclosure of evidence; failure to exhaust internal remedies; final decision; impugned decision; step in the procedure;
Judgment 4209
129th Session, 2020
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the ITU’s failure to address her claim for reclassification and for payment of a special post allowance.
Judgment keywords
Keywords:
complaint dismissed; failure to exhaust internal remedies; late appeal; post held by the complainant; special post allowance;
Judgment 4160
128th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks a redefinition of his employment relationship.
Consideration 13
Extract:
In accordance with the Tribunal’s case law and pursuant to the provisions of Article VII, paragraph 1, of its Statute, the fact that the appeal lodged by the complainant was out of time renders his complaint irreceivable for failure to exhaust the internal means of redress offered to staff members of the Organization, 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, Judgment 2888, consideration 9, and Judgments 2010, 2326 and 2708 referred to therein).
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 2010, 2326, 2708, 2888
Keywords:
failure to exhaust internal remedies; late appeal; receivability of the complaint;
Judgment 4159
128th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks a redefinition of his employment relationship and the setting aside of the decision not to renew his last contract of employment.
Consideration 11
Extract:
In accordance with the Tribunal’s case law and pursuant to the provisions of Article VII, paragraph 1, of its Statute, the fact that the appeal lodged by the complainant was out of time renders the claims in question irreceivable for failure to exhaust the internal means of redress offered to staff members of the Organization, 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, Judgment 2888, consideration 9, and Judgments 2010, 2326 and 2708 referred to therein).
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 2010, 2326, 2708, 2888
Keywords:
failure to exhaust internal remedies; late appeal; receivability of the complaint;
Judgment 4103
127th Session, 2019
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to grant him mission status during the first six months of his assignment to a field post.
Consideration 1
Extract:
[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, under 10 and 11, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 3758
Keywords:
failure to exhaust internal remedies; internal appeal; internal remedies exhausted; late appeal; receivability of the complaint; time limit;
1, 2, 3 | next >
|
|
|
|
|
