Judgment No. 3423
Decision
1. The implied decision rejecting the appeal jointly filed by the complainants on 25 April 2012 is set aside.
2. The complainants’ cases are remitted to the Global Fund so that the internal appeal proceedings may be resumed, as indicated under consideration 14.
3. The Fund shall pay each complainant 1,500 euros in costs.
4. The complainants’ other claims are dismissed, as is the Fund’s counterclaim.
Summary
The Tribunal found that the impugned implied decision was flawed.
Judgment keywords
Keywords
complaint allowed; internal appeal; decision quashed; case sent back to organisation; fixed-term; non-renewal of contract
Consideration 7(a)
Extract:
"It is true that [the Fund's] former employees do not have access to the internal appeal procedure for which the applicable regulations make provision. Indeed, the regulations in force at the material time [...] provide that the internal means of redress are open to “employees”, but there is nothing in the texts governing the organisation’s staff which specifies that this term also refers to former employees. The Tribunal has already had occasion to find, with regard to other international organisations’ staff rules and regulations couched in similar language, that in the absence of any indication to the contrary in the applicable texts, this term must be interpreted as referring solely to serving staff members (see, in particular, Judgments 2840, under 17 to 21, 2892, under 6 to 8, or 3074, under 11 to 13)."
Reference(s)
ILOAT Judgment(s): 2840, 2892, 3074
Keywords
status of complainant; internal appeal; internal remedies exhausted; exception
Consideration 7(b)
Extract:
"[T]he question whether an employee separating from an organisation has access to the internal means of redress must be determined, for the entire appeal procedure, at the date on which he or she receives notification of the decision he or she intends to challenge, and subsequent events have no bearing on this issue (see also a contrario [...] Judgments 2892, under 8, and 3074, under 13)."
Reference(s)
ILOAT Judgment(s): 2892, 3074
Keywords
internal appeal
Consideration 8
Extract:
"[T]he undeniable complexity of the procedure [...] does not in itself render unlawful the provisions which established it."
Keywords
judicial review
Consideration 9(a)
Extract:
"According to the Tribunal’s case law, for a letter addressed to an organisation to constitute an appeal, it is sufficient that the person concerned clearly expresses therein his or her intention to challenge the decision adversely affecting him or her and that the request thus formulated can be granted in some meaningful way (see Judgments 461, under 3, 1172, under 7, 2572, under 9, and 3067, under 16)."
Reference(s)
ILOAT Judgment(s): 461, 1172, 2572, 3067
Keywords
internal appeal
Consideration 10
Extract:
"As there was no response to the appeal [...] within sixty days of the date on which it was lodged, pursuant to the provisions of Article VII, paragraph 3, of the Statute of the Tribunal it must be deemed to have been implicitly rejected, and that implied decision may be impugned by the complainants before the Tribunal.
In this case, the time limit in question had not actually expired when the complaints were filed with the Tribunal, but given that the aforementioned decision arose in the course of the proceedings before the Tribunal, the complaints, though filed prematurely, may be considered to have been corrected in this respect (for a similar case, see Judgment 3356, under 15 and 16)."
Reference(s)
ILOAT Judgment(s): 3356
Keywords
direct appeal to tribunal
Consideration 12
Extract:
"The Tribunal will not, however, examine the merits of the complaints in these proceedings.
When it transpires that the internal appeal procedure in force in an international organisation has not been followed properly, the Tribunal often decides – in some instances on its own initiative – to remit the case to the organisation, in order that the competent appeal bodies can hear it, rather than examine its merits (see, for example, Judgments 1007, 2341, 2530, 2781 or 3067)."
Reference(s)
ILOAT Judgment(s): 1007, 2341, 2530, 2781, 3067
Keywords
internal appeal; case sent back to organisation
Consideration 12(a) and (b)
Extract:
"(a) First, it should be recalled that, as the Tribunal’s case law has long emphasised, the right to an internal appeal is a safeguard which international civil servants enjoy in addition to their right of appeal to a judicial authority (see, for example, [...] Judgments 2781, under 15, and 3067, under 20). This is especially true since internal appeal bodies may normally allow an appeal on grounds of fairness or advisability, whereas the Tribunal must essentially give a ruling on points of law. Consequently, although in this case the complainants themselves were mistaken as to their right to resort to the internal appeal procedure, it would be inappropriate to deprive them of the benefit of that procedure.
(b) Secondly, apart from the fact that the review of a disputed decision in an internal appeal procedure may well suffice to resolve a dispute, one of the main justifications for the mandatory nature of such a procedure is to enable the Tribunal, in the event that a complaint is ultimately lodged, to have before it the findings of fact, items of information or assessment resulting from the deliberations of appeal bodies, especially those whose membership includes representatives of both staff and management, as is often the case (see, for example, Judgments 1141, under 17, or 2811, under 11). As rightly pointed out by the defendant, the Appeal Board plays a fundamental role in the resolution of disputes, owing to the guarantees of objectivity derived from its composition, its extensive knowledge of the functioning of the organisation and the broad investigative powers granted to it. By conducting hearings and investigative measures, it gathers the evidence and testimonies that are necessary to establish the facts, as well as the data needed for an informed assessment thereof."
Reference(s)
ILOAT Judgment(s): 1141, 2781, 2811, 3067
Keywords
internal appeals body; internal appeal
Considerations 16 and 17
Extract:
"The complainants request the Tribunal to find that, should the sums awarded to them be subject to national taxation, they would be entitled to a refund of the tax paid from the Global Fund. However, in the absence of a present cause of action in this respect, the claim must be dismissed as irreceivable (see, for example, Judgments 3255, under 15, or 3270, under 10).
The Fund requests, as a counterclaim, that the complainants be ordered to pay costs. But the very fact that the complainants succeed in part is sufficient to demonstrate that their complaints were not vexations and that this claim must therefore be rejected."
Reference(s)
ILOAT Judgment(s): 3255, 3270
Keywords
tax; refund
Consideration 5
Extract:
In their rejoinder, the complainants contest the receivability of the Fund’s reply, on the grounds that it was submitted by a person who did not have the requisite capacity. However, the Fund’s submissions are signed by a lawyer who is a member of the bar in Member States of international organisations that have recognized the jurisdiction of the Tribunal, and who has produced a power of attorney duly issued by the Fund. He is consequently entitled, under Article 5, paragraphs 3 and 4, of the Tribunal’s Rules, to represent the Fund in the present case.
Keywords
reply; power of attorney
Consideration 9(b)
Extract:
It is true that the two successive appeals thus lodged by the complainants were not submitted to the authorities competent to hear them. But consistent precedent has it that, although rules of procedure should ordinarily be strictly complied with, they must not set traps for staff members who are defending their rights and therefore they must not be construed with too much formalism. Consequently, an appeal submitted to the wrong authority is not irreceivable on that account and it is for that authority, in such circumstances, to forward it to the one which is competent, within the organisation, to hear it (see, for example, Judgments 1832, under 6, 2882, under 6, or 3027, under 7).
Reference(s)
ILOAT Judgment(s): 1832, 2882, 3027
Keywords
internal appeals body; competence; internal appeal
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