Judgment No. 3505
Decision
1. The complaint is dismissed as irreceivable.
2. The matter is remitted to UNESCO for further action as indicated in consideration 14.
Summary
The complainant challenges the decision not to extend her sick leave entitlement beyond the date on which her appointment expired.
Judgment keywords
Keywords
case sent back to organisation; separation from service; sick leave; failure to exhaust internal remedies; complaint dismissed
Consideration 1
Extract:
"Article VII, paragraph 1, of the Statute of the Tribunal states that “[a] complaint shall not be receivable unless the decision impugned is a final decision and the person concerned has exhausted such means of resisting it as are open to him under the applicable Staff Regulations”. The only exception allowed to this rule is where staff regulations provide that the decision in question is not such as to be subject to the internal appeal procedure, where for specific reasons connected with the personal status of the complainant he or she does not have access to the internal appeal body, where there is an inordinate and inexcusable delay in the internal appeal procedure, or, lastly, where the parties have mutually agreed to forgo this requirement that internal means of redress must have been exhausted (see, in particular, Judgment 2912, under 6, and the case law cited therein, or Judgment 3397, under 1)."
Reference(s)
ILOAT Judgment(s): 2912, 3397
Keywords
internal remedies exhausted
Considerations 3 and 5
Extract:
"The Tribunal’s case law establishes that, when under an organisation’s Staff Rules and Staff Regulations only serving staff members have access to the internal appeal procedures, former officials have no possibility of using them and they are then entitled to file a complaint directly with the Tribunal (see, for example, Judgments 2840, under 21, 3074, under 13, or 3156, under 9). [...]
However […], as the Tribunal explained in Judgment 3398 under 2 and 6, the internal means of redress established by the Staff Regulations and Staff Rules are open to any person who has been affected by a decision in his or her capacity as an official, even if he or she has since left the Organization. A staff member of UNESCO whose appointment has ended is therefore still entitled to use the internal means of redress if he or she wishes to challenge a decision taken before his or her separation. It must be noted that, although in such a case this rule will also have the effect of depriving the former staff member of the possibility of filing a complaint directly with the Tribunal, it provides that person with the essential safeguard constituted by the right of officials to pursue an internal appeal against any decision harming their interests."
Reference(s)
ILOAT Judgment(s): 2840, 3074, 3156, 3398
Keywords
direct appeal to tribunal; former official
Consideration 8
Extract:
"The fact that th[e] decision was not evidenced by a written document does not prevent recognition of its existence, as the Tribunal’s case law has it that an administrative decision may take any form, provided that its existence may be inferred from a factual context demonstrating that it was indeed taken (see, in particular, Judgments 2573, under 8, 2629, under 6, and 3141, under 21)."
Reference(s)
ILOAT Judgment(s): 2573, 2629, 3141
Keywords
impugned decision
Consideration 14
Extract:
[T]je complaint must be dismissed as irrecevable because internal means of redress have not been exhausted, as required by Article VII, paragraph 1, of the Statute of the Tribunal. The matter shall be remitted to UNESCO in order that the Appeals Board may give an opinion on the two appeals submitted to it by the complainant, after taking such steps as may be necessary to ensure that the procedure has been duly followed.
Keywords
case sent back to organisation
Consideration 4
Extract:
In the case of UNESCO, the Tribunal has already held that Staff Regulation 11.1, Staff Rule 111.1 and the Statutes of the Appeals Board confine access to internal means of redress to “staff members”, in other words solely to serving officials. In pursuance of this case law, it held, for example, that former staff members could not avail themselves of the internal means of redress to challenge a decision taken after they had left the Organization (see Judgment 2944, under 20).
Reference(s)
ILOAT Judgment(s): 2944
Keywords
internal appeal; former official
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