Judgment No. 3442
Decision
1. The second and third complaints filed by the complainant on 16 August 2012 and 8 October 2012 respectively are dismissed.
2. His fourth complaint is dismissed to the extent that it relates to his second internal appeal of 9 October 2010, as indicated in consideration 10 of this Judgment.
3. The impugned decision contained in the letter of the Director-General dated 11 May 2013 is set aside to the extent detailed in consideration 27 of this Judgment.
4. The OPCW shall pay the complainant 15,000 euros compensation for moral injury.
5. It shall also pay the complainant 4,000 euros costs.
6. The matter is remitted to the OPCW for consideration with particular reference to consideration 26 of this Judgment.
7. All other claims are dismissed.
Summary
The Tribunal found that the decision to dismiss internal appeals concerning a claim for compensation for service-incurred disability was flawed.
Judgment keywords
Keywords
complaint allowed; absence of final decision; joinder; decision quashed; equal treatment; service-incurred; invalidity; harassment
Consideration 1
Extract:
"The Tribunal finds it convenient to join these three complaints as they are based on similar and related underlying facts and issues and involve the same parties."
Keywords
joinder
Considerations 7 and 8
Extract:
"[B]efore the complaint was brought directly to the Tribunal, the complainant had to inform the OPCW of his continued interest in his internal appeal, thus putting it on notice that he wanted the process to proceed. The Tribunal will assume jurisdiction if it appears that a complainant’s rights in the internal appeal process have been paralysed.
The evidence does not reveal circumstances that show that the complainant’s rights were paralysed in the internal appeal process."
Keywords
direct appeal to tribunal
Consideration 10
Extract:
"[I]nasmuch as he sought to litigate the third complaint in the Tribunal when the same matter was before the Appeals Council, that aspect of his fourth complaint which arises out of his second internal appeal (of 9 October 2010) challenging the decision dated 22 September 2010 will also be dismissed. It breached the fundamental rule that a litigant cannot pursue the same claim in concurrent proceedings (see, for example, Judgment 2853, under 6)."
Reference(s)
ILOAT Judgment(s): 2853
Keywords
duplication of proceedings
Consideration 20
Extract:
"The foregoing events reflect a fundamental flaw in that aspect of the impugned decision. The chain of relevant decisions that were maintained or reconfirmed goes back to the initial decision of 3 August 2010 that the requests contained in the letter of 12 May 2010 were not receivable. With respect, that could not properly have been the decision on the referral of the “new claim” that was specifically circumscribed by the Director-General in order that the ABCC consider a discreet issue which had not been considered or determined before. It was therefore necessary for the Director-General to motivate the decision specifically as it related to the “new claim”, which had not previously been dismissed as irreceivable. His failure to do so is sufficient ground for setting aside the impugned decision insofar as it was concerned with the complainant’s third internal appeal."
Keywords
new claim; duty to substantiate decision
Consideration 6
Extract:
In Judgment 2039, under 4, the Tribunal held as follows:
“Precedent says that the requirement to exhaust the internal remedies cannot have the effect of paralysing the exercise of the complainants’ rights. Complainants may therefore go straight to the Tribunal where the competent bodies are not able to decide on an issue within a reasonable time, depending on the circumstances (see Judgments 1829 […], 1968 […] and the numerous judgments cited therein).
However, a complainant can make use of this possibility only where he has done 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 decision within a reasonable time (see, for example, Judgments 1674, […] under 6(b), and 1970 […]). In general, a request for information on the status of the proceedings or the date on which a decision may be expected is enough to demonstrate that the appellant wants the procedure to follow its normal course, and gives grounds for alleging unjustified delay if the authority has not acted with the necessary diligence. However, there are circumstances in which it is unclear whether the procedure has been abandoned or whether the staff member has implicitly consented to the suspension of his appeal in law or in fact. In such cases, the case law says that the staff member must indicate clearly if he wants the procedure to continue. […]”
Reference(s)
ILOAT Judgment(s): 1829
Keywords
internal remedies exhausted; exception
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